On November 27, 2020, the Canadian Competition Bureau released a statement regarding the application of the Competition Act to no-poaching, wage-fixing, and other buy-side agreements. Canadian legal and business communities have become increasingly interested in these issues since at least 2016, when American regulators indicated that buy-side agreements could attract criminal liability.
With this statement, the Bureau clarified how it will address buy-side agreements such as no-poaching or wage-fixing agreements and confirms that Canadian and American antitrust laws will treat them quite differently, according to Borden Ladner Gervais.
Buy-side agreements not to hire employees away from competitors (no-poaching agreements) or agreements that set wages at a specific lower level or range (wage-fixing agreements) may have anti-competitive effects in the labor and related product markets, according to the statement. However, the Bureau will not consider buy-side agreements for the purchase of products and services – including employee no-poaching and wage-fixing agreements – under the criminal conspiracy and agreements regime outlined in section 45 of the Competition Act.
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