CANADA – QUEBEC Trends and Developments Contributed by: Eleonora Eusepi, Alain Castonguay, Joseph Piazza and Alessia Talarico, BCF LLP
enant is anti-competitive and unjustified, barring exceptional circumstances, which therefore puts the onus on the parties to justify it. The recent changes to the Act have far-reach - ing consequences for Canada’s commercial real estate sector. With stricter regulations on restrictive covenants, exclusivity clauses and mergers that heighten market concentration, there is now increased focus on monitoring anti- competitive behaviour in real estate deals and ownership structures. For landlords, develop - ers and investors, this necessitates a thorough review of standard contractual provisions and existing agreements to align with the updated legal standards and steer clear of the substantial penalties introduced by the amendments. The Amendment allows the Competition Bureau to have more control over mergers that signifi - cantly increase concentration or market share. While the Competition Bureau has the author - ity to review any merger in Canada, it must be notified in advance of mergers that exceed cer - tain financial thresholds, referred to as Notifi - able Transactions under Part IX of the Act. This advance notice enables the Bureau to conduct a review and, if necessary, challenge a merger before the Competition Tribunal or seek appro - priate measures prior to the transaction’s clos - ing. Under the Amendment, a merger is now presumed to be anti-competitive if it signifi - cantly increases concentration or market share (Section 91 ss. of the Act). The Amendment also introduces enhanced measures to combat deceptive marketing practices. As of 20 June 2025, the Amendment allows any person to seek permission to file a com - plaint before the Competition Tribunal regarding anti-competitive agreements in order to seek financial penalties and/or the annulment of con -
tractual terms before the Competition Tribunal. Landlords, tenants and competitors can report anti-competitive behaviours to the Competition Bureau, which allows whistle-blowers to remain anonymous. The test for leave to bring a pri - vate action has been expanded such that the Competition Tribunal may grant a private party leave to make such an application if it has rea - son to believe that the applicant is directly and substantially affected in the whole or part of the applicant’s business by any conduct referred to in one of those sections, or if the Tribunal is satisfied that it is in the public interest to do so. The extent of remedies and sanctions that can be imposed by the Competition Bureau take the market power of the party in question into consideration. Abuse of dominance sanctions under Section 79(3.1) of the Act provide that the penalty can be up to the greater of: • CAD25 million (and CAD35 million for each subsequent order); • three times the value of the benefit derived; or • 3% of the person’s annual worldwide gross revenues. For agreements or arrangements that substan - tially prevent or lessen competition under Sec - tion 90.1(1.3) of the Act, said section provides that the maximum penalty is the greater of: • CAD10 million (and CAD15 million for each subsequent order); • three times the value of the benefit; or • 3% of global revenues if the benefit cannot be reasonably calculated. The fact that existing agreements are not only not grandfathered but retroactive adds urgency to the review of exclusivity clauses and restric - tive covenants. With expanded rights for private
248 CHAMBERS.COM
Powered by FlippingBook