[BUYING AND SELLING REAL ESTATE IN CANADA - QUÉBEC]
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The various amendments to the CA provisions on the abuse of dominant position define an “anti-competitive act” as being “one that is intended to have a predatory, exclusionary or disciplinary negative impact on a competitor or to have an adverse effect on competition” The list of anti-competitive acts detailed in the CA was also amended to include “a selective or discriminatory response to an actual or potential competitor for the purpose of impeding or preventing the competitor’s entry into, or expansion in, a market or eliminating the competitor from a market;” and “directly or indirectly imposing excessive and unfair selling prices. However, the CA does not elaborate on what in fact constitutes a “selective or discriminatory response” or “excessive and unfair prices.” Furthermore, the Competition Tribunal (the “Tribunal”) must now meet fewer conditions to issue a prohibition order. More specifically, if the Tribunal determines that person(s) substantially or completely control(s) a class or type of business throughout Canada or any area thereof, it may make render an order prohibiting such person(s) from engaging in conduct if it determines that the person(s) has engaged or is engaging in (a) a practice of anti-competitive acts; or (b) a practice that had, is having or is likely to have the effect of preventing or lessening competition substantially in a market in which that person(s) has a plausible competitive interest, and the effect is not a result of superior competitive performance. The CA now also provides a list of factors to be considered by the Tribunal in determining whether conduct in question has the effect of “substantially lessening competition in the market.” The monetary penalties which the Tribunal may impose pursuant to the CA under the abuse of dominance provisions have been significantly increased. The amendments now also permit
private parties who are directly and substantially affected by the abuse of dominance to apply to the Tribunal for relief. The amendments also enlarge the scope of reviewable agreements by extending the provisions of the CA dealing with agreements or arrangements that prevent or lessen competition substantially to agreements not between competitors if a significant purpose of any part of the agreement is to lessen competition in any market. On October 7, 2024, the Competition Bureau (the “Bureau”) issued draft guidelines on how the Bureau intends to enforce competitor property controls (namely, restrictions on the use of commercial real estate) under the CA (the “Guidelines”). The Guidelines focus on two primary types of property controls: exclusivity clauses and restrictive covenants, taking the view that property controls insulate firms from competition by preventing new entrants from accessing prime commercial locations. The Bureau acknowledges that limited use of property controls may be justified if they are necessary to permit a firm to make investments that increase competition, such as to enter a market. However, the Guidelines provide that such controls must be as limited as possible to be justified. The Guidelines also provide a list of questions to be considered by businesses when using competitor property controls to ensure that they comply with the CA. It is therefore important to exercise prudence and caution in the use of property controls such as restrictive covenants and exclusivity clauses in applicable agreements. X. ANNUAL COSTS FOR PROPERTY OWNERSHIP In addition to the purchase price, a buyer must typically budget for the following annual expenses of property ownership: A. Property Insurance (including boiler and machinery, fire, damage and liability).
ILN Real Estate Group – Buying and Selling Real Estate Series
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