Are vertical agreements (e.g., supplier / customer, franchisor / franchisee, licensor / licensee agreements) caught under the new criminal provisions (section 45)?
Likely not. While the previous conspiracy provisions applied to both vertical and horizontal agreements (e.g., supplier-distributor-consumer and competitor-competitor agreements), the new criminal provisions appear to be restricted to horizontal agreements between competitors (and potential competitors). In this regard, it is thought that the scope of the new conspiracy provisions has been narrowed. The Competition Bureau has also indicated in its recent Competitor Collaboration Guidelines that it will review the majority of allegedly anti-competitive vertical agreements under the new civil provision (section 90.1), or the Act’s other reviewable matters provisions (e.g., section 79 – abuse of dominance), not under the criminal conspiracy provisions.
