We are pleased to present our forecast of key trends and developments to watch for in Canadian competition and foreign investment law enforcement in 2019.

Competition in the Digital Economy to Remain Top Priority

The Competition Bureau's enforcement efforts and public statements relating to the digital economy in 2018 were wide-ranging and preview what is to come in 2019 and beyond.

Competition enforcement in digital economy cases will continue to be a top priority with the Bureau placing the digital economy first in its list of priorities in its annual plan. The Bureau defines digital economy cases as those that "support innovation and the competitiveness of the digital economy (including but not limited to e-business, online promotions, sales and transfers, infrastructure support) by deterring anti competitive conduct such as impeding new entrants, product or services and stopping deceptive marketing practices online". In the summer of 2018, the Bureau said it would commence 10 digital economy investigations and in the fall, it reported that it was advancing 41 digital economy investigations. To build enforcement capacity in this area, the Bureau created a new position: Chief Digital Enforcement Officer

The Bureau has set its sights on digital economy investigations with high impact and consumer focus, such as drip pricing practices. Stemming from a series of investigations into drip pricing practices by car rental companies, the Bureau reached consent agreements with two car rental companies to correct what the Bureau concluded were misleading advertisements.  Each company also had to pay an administrative monetary penalty. The Bureau concluded that the companies' prices, advertised across various media (including online, mobile applications and emails), were not attainable due to mandatory fees added later during the purchasing process.  The Bureau has also launched an action against Ticketmaster for allegedly using drip pricing in its online sports and entertainment ticket price advertising. The Bureau alleges that Ticketmaster's mandatory fees often inflate the advertised price by more than 20% (in some cases by 65%).  Given that most businesses have an online presence and use digital media to advertise, the Bureau can be expected to continue to pursue deceptive marketing practices impacting this area.

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