Tax & Trade Blog

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COMPETITION BUREAU'S BROAD POWERS

FEDERAL COURT OF APPEAL DECISION IS A USEFUL REMINDER OF BASIC PRINCIPLES

On February 12, 2025 the Federal Court of Appeal (“FCA”) issued a decision upholding the Federal Court (“FC”) decision in Empire Company Limited and Sobeys Inc. v. the Attorney General of Canada (2025 FCA 34).  The case dealt with an application for judicial review of a decision of the Commissioner of Competition to commence an inquiry under the Competition Act (the “Act”, the same legislation which defines permissible multi-level marketing plans and illegal pyramid selling schemes in Canada). 

Accordingly, the case serves as a reminder of several principles regarding the Competition Bureau that are relevant to direct selling companies.

The new year brings possible new tax reporting requirements for direct sales platform operators (“Direct Sellers”)!

These changes stem from amendments to the Income Tax Act (“ITA”) and mandate that digital platform operators throughout the online “gig” economy report income and certain other information about some of the sellers using their websites or apps to the Canada Revenue Agency (the “CRA”).  See our prior article for more technical information.

Those affected include certain Direct Sellers operating on a “buy-resale” model.  Filings for the 2024 year are due by January 31, 2025!

Which Direct Sellers Are Affected?

Based on recent inquiries, it appears that the Canada Border Services Agency (the “CBSA”) is currently focusing on verifying whether importers are using the correct tariff classifications when reporting importations of various spices and seasoning products.

Importers of spices and seasoning products – and their foreign producers – should take any inquiries from CBSA seriously!

The Ontario Court of Appeal (the “OCA”) has recently upheld (Sims Professional Corporation v. Cooke, 2024 ONCA 388) a non-competition clause, and in the process confirmed several important points about the Court’s approach to reviewing such clauses. 

This is good news for the direct selling industry and signals that properly drafted non-compete clauses with independent contractors can be upheld in Canada.  However, each company’s clauses should be considered in the context of the Court’s approach, as enforceability can depend on the details. 

The CBSA has historically requested password information from travelers in order to search their smartphones, personal computers and tablets, on the basis that these devices are searchable like all other “goods” coming into Canada.

The Ontario Court of Appeal in The King v. Pike (2024 ONCA 608) has determined, however, that the CBSA’s routine searches of such electronic devices is contrary to the Charter of Rights and Freedoms (the “Charter”) and is unconstitutional!