Even More Changes Coming for the Competition Act and a Story About Rental Rates Shenanigans Illustrating Why It May Be Needed

Not content with the 2022 changes to the Competition Act, Canada was announcing this week that it will be looking into making even more changes, based on a consultation it has now undertaken. Use of technology is changing how society is going about things and the economy is of course following suit. In a context of constant changes, it’s not very surprising we also need to keep updating our statute that deals with preserving competition between businesses.

Canada will be looking to make changes such as those discussed in a recent document published by the government and which provided us with a fair indication as to what may be in store for the Competition Act, moving forward.

This is happening in Canada but other countries like the U.S. are experiencing the same kind of thing.

In a story that seems a good example of what we’re talking about, the Verge was reporting a story earlier this week about the U.S. Department of Justice (DOJ) looking into practices by some American landlords (lessors) potentially fixing prices for rental space (to a degree), by using the RealPage software to collaborate.

The story at issue relates to the fact that, nowadays, large landlords often subscribe to a platform called YieldStar (connected to RealPage) that easily allows them to share part of the data about their rental rates, in various markets. Over time, the system has enough data to suggest possible rentals rates to landlords looking to rent premises, as compared to other deals in the same area for such premises. In practice, this may lead to higher rates than would otherwise have been the case, had landlords not shared info like this.

In essence, if every landlord ends-up sharing data with other landlords in the market (in this instance, through use of a specific software), we may end-up with a coordinated effort that results in an increase in rental rates across the country. If this amounts to collusion, then legally there may be an issue of competition law, by the sheer use of RealPage and YieldStar, including certain message boards that are part of that offering. That’s the question the DOJ is looking into anyway.

Interesting fact pattern that’s symptomatic of the interaction which technology can have with competition law. Sharing is fine, but cartel-like practices may be crossing a line.

Canada One Step Closer to Adopting C-27 and IA-specific Legislation

The Canadian government reiterated last week that we’re collectively moving forward with the revamp of the country’s federal privacy legislation, including an offshoot meant to curb (better control, some would say) rampant and unrestricted adoption of artificial intelligence (“AI”) throughout. At the same time, the bill at issue (named C-27) moved to the second reading stage, bringing us one step closer to a formal adoption of this piece of legislation.

Bill C-27 will reinforce personal information protection throughout Canada but updating a law that is now more than 20 years old and, many would say, quite outdated. The new version of the personal information protection statute at issue will include provisions meant to generally empower individuals in a way that allows them to exercise control over their data, something the current version of the legislation has largely failed to do. Though it’s not quite GDPR, many see this new version of the Canadian privacy legislation as a much needed shot in the arm for our federal privacy regime.

At the same time, this project will likely also include Canada adopting a whole new statute meant to better control the use of AI (e.,g. by businesses), including new rules to try and minimize scenarios where AI is implemented in a way that is incompatible with personal rights and freedoms as well as Canadian values.

The Canadian government clearly says it intends to move forward with all of these. Now, it’s mostly a question of going through the rest of the legislative process, but there’s little doubt that this thing will become law before long. Stay tuned.

Québec Businesses Beware: No, You May (Still) Not Tack on Fees to Pay with a Credit Card

Major credit card companies recently changed the rules they impose on businesses using their credit facilities to allow customers to pay them. Further to a (relatively) recent court decision, credit card companies in Canada may no longer prohibit their business customers from adding extra fees whenever a customer elects to pay for products/services with a credit card.

Until now, both Visa and MasterCard prohibited this practice in Canada, perhaps because it may tend to discourage customers from using their credit cards to pay and, thus, lead to a reduction of credit card transactions over time.

With the recent change to their policies as to this, Visa and MasterCard both now allow businesses to do this, at least up to the percentage of service charges that each card may carry (e.g., 1% to 3%), without going over, so as to avoid businesses starting to make profit with such extra fees. In the province of Québec, however, businesses should make a note that, notwithstanding this recent change, the law still prohibits such additional fees. This prohibition stems from the provincial requirement that prices actually charged be no higher than the prices that are displayed, shown or advertised.

As such, it is (and remains) illegal for a business operating in Québec to jack up the price once a customer gets to the cash, whether it be because he has red hair, because he’s wearing a blue jacket, because he wants to pay in dimes or, yup, wants to pay using a credit card.