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FAQs : Written Opinions

Question 1: Why does the Bureau need to increase its fees for written opinions?

Answer: The new fee levels for written opinions reflect the Bureau's experience with the workload required to provide advisory opinions to date. The Bureau expects that costs will increase due to a more formal approval process and the need for more frequent and formal economic and legal advice now that opinions are legally binding on the Commissioner.

Question 2: What will the money be used for?

Answer: As per Treasury Board policy, all revenue from fees must be used to fund the service areas for which they are earned. The Bureau continues to focus on not just maintaining but improving the services for which fees are charged.

Question 3: Is the imposition of fees not considered a form of "double taxation" by the federal government?

Answer: No. In recognition that there is a public good component to the provision of merger review and of written opinions in ensuring that business conduct is not anti-competitive, the Bureau will not recover all of its costs through fees for providing the service. The remainder will be funded, as before, through general taxation. The Bureau judges this to be a fair and appropriate distribution of costs.

Question 4: What forms of payment are acceptable?

Answer: Payment may be made by VISA, MasterCard, cheque and wire transfer.

Question 5: To whom is the cheque made payable?

Answer: The Receiver General for Canada

Question 6: Are there fees associated to wire transfers?

Answer: There are fees associated with making a wire transfer and they can vary between $30 and $40. As well, you must add $10 to the fees payable to the Bureau. This cost is related to international service fees charged to the Bureau by financial institutions for accepting wire transfers.

Question 7: Am I required to pay GST or PST?

Answer: Merger Notifications are not subject to sales taxes. ARC requests, written opinion requests, and photocopying services are subject to the GST; Québec residents pay provincial sales tax and Newfoundland, New Brunswick and Nova Scotia residents pay the HST.

Question 8: How do I request a written opinion from the Bureau?

Answer:You can contact the Bureau's Information Centre, toll free 1-800-348-5358. An information officer will be able to guide you through the process.

Question 9: What if I receive a written opinion from the Bureau, and am subsequently investigated by another law enforcement agency?

Answer: A written opinion from the Bureau does not preclude any other law enforcement agency from commencing an investigation.

Question 10: I picked up one of your pamphlets at a recent trade show and am concerned that I or other members of my industry may be engaging in business activity that is in contravention of the Competition Act. Should I request a written opinion?

Answer: No. Written opinions are advice and guidance that are provided for proposed business conduct. In your case, because the issue is one of existing conduct, please contact the Bureau’s Information Centre at 1-800-348-5358 and we will advise you on how to proceed.

Question 11: How long will written opinions provided under section 124.1 of the Act be binding on the Commissioner?

Answer: Written opinions remain binding provided that the practice is carried out substantially as proposed and the material facts upon which the opinion was based, remain substantially unchanged and/or that the law remains unchanged.

Question 12: What is different in terms of how the Bureau will deal with written opinion requests now as opposed to how the Bureau dealt with opinions before they were binding on the Commissioner?

Answer: Because written opinions are now legally binding, the Bureau has developed a more formal process that involves higher levels of approval and in certain circumstances, more formal involvement with the Department of Justice.

To promote compliance with, and foster transparency in the administration and enforcement of the Act, the Bureau will publish written opinions, or summaries thereof, that add to the understanding of how the law is administered or where a new issue or sector of the economy is being examined. With consent, opinions will be published in their entirety. Alternatively the Bureau will edit the opinion to remove company names and/or produce a summary of the opinion that protects identities and commercially sensitive information.

Question 13: Could the Bureau decide not to provide a written opinion?

Answer: Yes. The Commissioner may exercise the discretion not to provide an opinion. As well, the Bureau will only provide a written opinion on proposed conduct in an existing market. The Bureau will not provide a written opinion if the product in question is not described or does not exist, if the industry and parties are unknown, if there is no way of rendering an opinion without contacting third parties, or if the information required by the Bureau to make a thorough assessment is not available. However, there is an exception with respect to requests for written opinions under section 74.01(1)(b) of the Act concerning representations relating to performance, efficacy or length of life of a product where the Bureau may seek independent review by an expert of any such claim and/or tests accompanying an applicant's product.

Question 14: Why do requests for written opinions involving sections 45 to 51 and 79 take more time and cost more?

Answer: It has been the Bureau's experience that such requests are more complex and require more time. Fees for written opinions are based on the cost to the Bureau for providing this specific service.

Question 15: Can the Bureau use the information received in the request for a written opinion in order to start an investigation?

Answer: Yes. The information provided to the Bureau can be used to begin an investigation.

Question 16: Can I request a written opinion on a proposed label?

Answer: Yes. Many consumer products can be assessed under the misleading representations and deceptive marketing practices provisions of the Competition Act. Written opinions apply only to the Competition Act. Written opinions do not apply to the Consumer Packaging and Labelling Act, the Textiles Labelling Act or the Precious Metals Marking Act.

Question 17: If I request a written opinion, how do I know what to pay?

Answer: Fees for written opinions depend on the section of the Act involved. Please contact the Bureau Information Centre, toll free 1-800-348-5358, if you are uncertain as to the appropriate fee. Taxes apply to written opinion requests.

Question 18: How can I determine what section of the Act my request pertains to?

Answer: The Bureau has published many brochures and guidelines that will help you. You can view them via the Bureau's Web site, or ask to receive them by calling the Bureau's Information Centre, toll free at 1-800-348-5358. The Information Centre will also be able to advise you further.

Question 19: If a written opinion involves more than one section of the Act, do I pay fees for every section?

Answer: No. You will be required to pay the highest fee to reflect and cover the higher costs of providing the service.

Question 20: Do I need to pay again if I request a written opinion which includes essentially the same information as a previous request?

Answer: Yes, a new fee will apply because the Bureau needs to reassess these criteria to provide the opinion. The Bureau classifies each request on a case by case basis. An opinion is based on the information provided taking into account previous opinions, legislation, jurisprudence and the stated policies of the Commissioner at the time the opinion is issued.

Question 21: Does everyone have to pay the full fee required for a written opinion?

Answer: No. Charitable organizations pay $50. The Income Tax Act's definition of a charitable organization will be used to determine the applicability of this stipulation.

Question 22: Do other government departments have to pay the fee for written opinions?

Answer: Yes. Federal, provincial and municipal governments all pay the full fee.

Question 23: I have a small business and have been approached by another company to talk about prices and contracts. If I send you an outline of the business activity that we are contemplating, must I pay a fee to request your advice?

Answer: Yes. Prior to engaging in business activity of a nature that could pose questions under the Act, we recommend that you request a written opinion. The Bureau will be in a position to advise you and to assist you in avoiding any potential anti-competitive or illegal activity.

Question 24: When do I have to pay for my written opinion?

Answer: The fee for a written opinion should be submitted with the request itself.

Question 25: In the event that the Commissioner decides not to give a written opinion, will the fee be returned to the requesting party?

Answer: Yes, if the Commissioner exercises the discretion to not provide a written opinion within 14 days of receiving the request, the fee will be reimbursed.

 

Question 26: Under what authority have you implemented these fees?

Answer: The Minister of Industry has the authority pursuant to the Department of Industry Act (DIA) to implement fees. The specific authorities used were Section 19 of the DIA for Advance Ruling Certificates, Advisory Opinions and photocopies and Section 20 of the DIA for Pre-merger Notification filings. The Fee and Service Standards Policy was published in Part I of the Canada Gazette on November 29, 1997 as required pursuant to subsection 21(2) of the DIA.

 

Question 27: Am I required to pay for a written opinion ahead of time?

Answer: Yes. The fee for a written opinion should be submitted with the request itself. If the payment is not submitted with the request, the party will be notified and the Bureau will commence the review, but the advisory opinion will not be released without payment.