The Antitrust Review of the Americas 2009

Canada: Monopolisation

01 January 2009

Canadian antitrust enforcement is based on three core provisions concerning the abuse of dominance, mergers, and conspiracy. The abuse of dominance provision, found in section 79 of Canada's Competition Act1 and its related sections, are administered and enforced by the federal government through the commissioner of competition (the commissioner), the head of the Competition Bureau. Although there has been some discussion of creating a private right of action for abuse, presently only the commissioner can commence a proceeding before the Competition Tribunal (the Tribunal) to obtain a remedial order. The commissioner has generally enjoyed success before the Tribunal in enforcing the abuse of dominance provision, and may realise future enforcement success with the aid of a recent ruling by the Federal Court of Appeal (FCA) overturning a decision of the Tribunal regarding the use of fidelity rebates. The FCA's decision in Canada Pipe2 is of particular consequence because, although the Tribunal has elaborated on its perspective on the requirements under section 79 in several cases, it represents the first time any Canadian court has interpreted the abuse provision in the Competition Act. The Supreme Court of Canada denied Canada Pipe's application for leave to appeal the FCA's decision, meaning that the FCA's decision stands as final,3 and ultimately the commissioner and the parties agreed to a settlement rather than proceeding to the Competition Tribunal for a reconsideration of the case in light of the FCA's decision. This chapter provides an overview of the abuse of dominance provisions in Canada that reflects both Tribunal jurisprudence interpreting the provision and the FCA's decision in Canada Pipe.4

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