Competition Bureau statement on section 48 of the Competition Act

Position Statement

July 5, 2022 – GATINEAU, QC – Competition Bureau

The Competition Bureau will not take enforcement action under section 48.

In conducting its enforcement work, the Competition Bureau may request and receive legal advice from the Public Prosecution Service of Canada (PPSC) regarding the application of the criminal provisions of the Competition Act. When the Competition Bureau finds evidence of a violation of the criminal provisions of the Competition Act, it may refer the matter to the PPSC. The PPSC then determines whether charges should be laid and has independent authority over all matters relating to the prosecution of the case.

Section 48 is a criminal provision that addresses certain conspiracies relating to professional sport. The provision prohibits anyone from reaching agreements that "unreasonably” limit certain types of opportunities for players in professional sport leagues. The provision also defines two considerations that a court must take into account in determining whether or not such an agreement violates section 48. First, a court must take into account whether the sport in question “is organized on an international basis”, and if so, whether any limitations accepted on players abroad should be accepted in Canada. Second, a court must take into account “the desirability of maintaining a reasonable balance among the teams or clubs participating in the same league.”

The Competition Bureau has requested and received legal advice on the application of this section.

Since its introduction in 1975, no cases have been referred to the PPSC under section 48.

Among other issues, there is concern that section 48 lacks definitions for ambiguous terms such as “unreasonably” and “desirability”. Given that this provision is written in a way that presents significant challenges to its enforcement, the Competition Bureau will not take action under this section as it is currently written.

In February 2022, the Minister of Innovation, Science and Industry announced a review of the Competition Act to identify ways to modernize and improve its operation. The Competition Bureau is supporting the Government of Canada in this ongoing review and will identify issues with section 48 as part of this process.

This publication is not a legal document. The Bureau’s findings, as reflected in this Position Statement, are not findings of fact or law that have been tested before a tribunal or court. Further, the contents of this Position Statement do not indicate findings of unlawful conduct by any party.

However, in an effort to further enhance its communication and transparency with stakeholders, the Bureau may publicly communicate the results of certain investigations, inquiries and merger reviews by way of a Position Statement. In the case of a merger review, Position Statements briefly describe the Bureau's analysis of a particular proposed transaction and summarize its main findings. The Bureau also publishes Position Statements summarizing the results of certain investigations, inquiries and reviews conducted under the Competition Act. Readers should exercise caution in interpreting the Bureau’s assessment. Enforcement decisions are made on a case‑by‑case basis and the conclusions discussed in the Position Statement are specific to the present matter and are not binding on the Commissioner of Competition.

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The Competition Bureau is an independent law enforcement agency that protects and promotes competition for the benefit of Canadian consumers and businesses. Competition drives lower prices and innovation while fueling economic growth.