Canada: Monopolisation

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

The law and its goals

Although Canada's antitrust laws were introduced in 1889, the present civil abuse of dominance provision is relatively recent, tracing a package of significant legislative revisions to the Competition Act in 1986.5
The Tribunal has consistently maintained and accepted that the objectives of the abuse of dominance provision are generally to:

  • address anti-competitive behaviour by dominant firms that impose artificial restraints on the competitive process, impeding the market from efficiently allocating resources; in order to
  • ensure goods and services are supplied by the firms that can produce them most efficiently and adapt best to the demands of the marketplace; and
  • ensure that dominant firms compete with other firms on merit, not through the abuse of market power.6
  • Although there is nothing in the FCA's Canada Pipe decision that would seem to disturb these observations, it remains to be seen how the FCA's statement - that all of the objectives in the purpose clause in section 1.1 of the Competition Act must be reflected in the abuse analysis cases - might alter future adjudicative and enforcement approaches to the objectives of the abuse provisions.7 Canada's abuse of dominance law is generally similar to that of the US and that of the EU, in that simply possessing a dominant or monopoly position in the relevant market is not sufficient to attract liability. In order to violate these provisions, each jurisdiction requires anti-competitive conduct in combination with monopoly power that results in harm. The concept of attempted monopolisation, which is prohibited in the US, is not recognised in Canada.
    In Canada, the abuse of dominance provision is considered a civil reviewable matter, meaning that there is no liability until the Tribunal actually makes a finding that abuse of dominance has occurred. The provision is for general application to all sectors of the economy; however, special provisions exist to address abuse of dominance by a domestic airline.8 The Bureau has also issued guidelines outlining the potential application of the provision to the Canadian grocery sector,9 and recently finalised an information bulletin on applying these provisions to the telecommunications industry.10
    It should be noted that proposed legislation in 2005 that would have introduced significant administrative monetary penalties (AMPs) for abuse of dominance, and repealed the airline-specific abuse provisions, died on the order paper when the last parliament was dissolved. It remains to be seen whether these measures will be reintroduced in the same or similar form by the current Conservative government, which recently received a report of from a panel which reviewed Canada's competition and foreign investment laws and made similar recommendations.11 Currently, a private member's bill is pending before the House of Commons that would implement some of these amendments.
    Under section 79, the commissioner must prove three elements on a balance of probabilities before the Tribunal may make an order proscribing the behaviour:

  • one or more persons substantially or completely control, throughout Canada or any area thereof, a class or species of business;
  • that person or those persons have engaged in or are engaging in a practice of anti-competitive acts; and
  • the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market.12
  • Section 78 sets out a lengthy and non-exhaustive list of 'anti-competitive acts'.
    It is important to note that section 79 specifies three distinct elements. The FCA in Canada Pipe stressed that in abuse of dominance cases the Tribunal must avoid the 'interpretive danger of impermissible erosion or conflation of the discrete underlying statutory tests'13 and applied a formalistic approach to the determination of each element. At the same time, however, the FCA did acknowledge that the same evidence is often relevant to more than one element.14

    Dominance

    The first element of abuse of dominance in Canada is that a firm or firms must have a dominant market position, that is, substantially or completely controlling a class or species of business. The term 'control' has been found to be synonymous with market power.15 A firm 'controls or substantially controls a business' if it possesses market power, namely, the power to profitably set prices above competitive levels for a considerable period of time.16 The Bureau generally considers one year to be a 'considerable' period of time in the abuse context.17 This determination requires that relevant anti-trust markets be defined and that their structure, barriers to entry, and the significance of market shares be examined. The Tribunal's approach in abuse cases is to consider market definition and then market control.18
    In measuring market power, the Tribunal and the FCA in Canada Pipe have accepted that there can be direct and indirect approaches to establishing this element.19 The direct approach proves that prices are above some accepted competitive level. The indirect approach considers other indicia of market power such as market share, entry barriers and customer countervailing power.20 The indirect approach is most often used because of the difficulty of determining a benchmark for competitive price.

    Market definition

    The assessment of market power starts with the definition of the relevant markets. The phrase 'class or species of business' has been determined to be 'synonymous with the relevant product market'21 and 'the fundamental test or touchstone for determining the boundaries of the relevant product market is substitutability'.22 In accepting this economic approach to product market definition, the Tribunal has rejected a more commercial or non-economics based approach that might have focused on what firms believed were the necessary elements for the performance or conduct of the business.23
    The phrase 'throughout Canada or any part thereof' in section 79 has been held to refer to the 'geographic market'.24 To define the relevant geographic market, the Tribunal has adopted an approach similar to product market determination, namely, to identify the universe of effective competitors or substitute providers of a product through such economic theories as the hypothetical monopolist paradigm.25
    It is important to note that the reference to 'throughout Canada or any part thereof' means that section 79 only applies to firms that are dominant within Canada. The jurisdictional limitations of section 79 were inherited from the conversion of the former criminal monopoly provisions into the current non-criminal reviewable abuse of dominance provisions. In the criminal context, monopoly provisions could only be applied within the boundaries of Canada.

    The role of market share

    Canada's abuse of dominance law relies on market share as evidence of market power or dominance. A prima facie determination of market power may be made on the basis of market share in the relevant market.26
    To date, there is no specific market share threshold for prima facie market power. All of the contested abuse cases to date have concerned market shares in excess of 80 per cent, where a prima facie case was relatively obvious. But Canadian cases have found that 'no prima facie finding of dominance would arise' with respect to a market share below 50 per cent,27 and a 25 per cent market share 'falls well short of a level that might be considered to indicate market power'.28
    Notwithstanding these pronouncements by the Tribunal, from an enforcement perspective, the Bureau takes the position that a market share held by one firm in excess of 35 per cent may prompt further investigation; in the case of a group of firms acting jointly, a combined market share over 60 per cent may also raise concerns.29 Above this level, the Bureau has stated that it will investigate further whether an entity is dominant. The same point is made in the Bureau's recently released Predatory Pricing Enforcement Guidelines.30
    It is important to note, however, that the case law is clear that, although market share is important to the abuse analysis, a finding of market power must be supported by findings other than market share, such as the existence of barriers to entry, the number and effectiveness of competitors, excess capacity and the state of the market.31 Where barriers to entry are non-existent, even a very large market share will not support a finding of market power.32

    Anti-competitive conduct

    The FCA's decision in Canada Pipe dealt extensively with this element, and although much of the Tribunal's analysis from previous cases remains relevant, the FCA's decision could represent some significant shifts in the assessment of anti-competitive acts in future cases. In general, it remains that once dominance is established, it is necessary to consider the nature and frequency of the conduct in question. To be liable under section 79, a firm must have engaged in a 'practice' of anti-competitive acts. A 'practice' denotes more than an 'isolated act'.33 Moreover, different types of individual anti-competitive acts taken together may constitute a practice.34
    It is acknowledged that the more difficult task is in defining an 'anti-competitive act'.35 Section 78 provides a list of illustrative examples of what may constitute anti-competitive acts for the purpose of determining whether an abuse of dominance has occurred. The list of anti-competitive acts in section 78 is not exhaustive36 and, in fact, the Tribunal has effectively expanded the list in its decisions. Recently, the Bureau released new guidelines concerning predatory pricing which indicated that predatory pricing behaviour, although also criminalised under the Act, would initially be examined under the abuse of dominance provisions.37 One of the federal review panel's recommendations was to repeal the criminal predatory pricing provisions.38
    From an enforcement perspective, the Bureau's Abuse of Dominance Guidelines39 indicate that during an investigation, the Bureau is likely to consider an activity to be anti-competitive if it:

  • raises competitors' costs, reduces their revenues or prevents their access to key inputs or facilities;
  • concerns predatory conduct, particularly in a market with high barriers to entry; or
  • facilitates the ability of groups of large firms who may together have joint dominance to monitor each other in order to maintain or increase price levels.
  • Although section 78 was an attempt to define acts that could constitute abuse, it has been of limited use because, in practice, it is often difficult in abuse cases to distinguish between when an act is anti-competitive and when it is a sign of healthy or normal commercial competition. For example, the Tribunal has acknowledged that its decisions to restrict competitive actions on the grounds that a competitor feels a dominant firm's response has been 'overwhelmingly intense' may actually chill competition.40 But it may be that this balance has shifted somewhat as a result of the FCA's Canada Pipe decision, where now the applicable standard is whether the impugned conduct is merely intended to have a 'negative effect on competitors'.41 In general, in Canada Pipe, the FCA appears to adopt the approach of the Tribunal42 by holding that anti-competitive acts under section 78 are defined by their common purposes: the intention of a negative predatory, exclusionary or disciplinary effect on a competitor.43 An act's purpose can also be described as its 'overall character'. In evaluating 'purpose', the FCA generally adopted the approach of the Tribunal in previous cases and accepted that the relevant factors to consider include the reasonably foreseeable or expected objective effects of the act; and subjective intent, which, while not required, is considered informative.44
    In order to establish whether an act was undertaken for an anti-competitive purpose, it is not necessary for the commissioner to prove a subjective intent to restrict competition.45 Anti-competitive purpose can generally be inferred from the nature of the act itself because the 'respondent will be deemed to intend the effects of its actions'.46 Furthermore, the mere proof of some legitimate business purpose is not sufficient to overcome other indicia of anti-competitive acts.47
    Therefore, although subjective intent is not required, intention remains an important element within section 79(1)(b) in determining the intended purpose of the act in question. When proving the intended nature of the negative effects on a competitor, the Tribunal may do so directly through subjective intent or indirectly by reference to the 'reasonably foreseeable consequences' of the act and the circumstances surrounding, or both.48
    In what appears to be a shift from previous Tribunal approaches, the FCA held that there must be a complete de-linking between the assessment of whether an act is anti-competitive and its impact on competition.49 In Canada Pipe, the FCA emphasised that the subsection dealing with anti-competitive acts is concerned with an act's effect on a competitor, not necessarily on competition: that is, a practice may be an anti-competitive act under section 79(1)(b) without resulting in a substantial lessening or prevention of competition under section 79(1)(c). The FCA found that a practice need not cause decreased competition, nor cause detriment to the consumer to be an anti-competitive act.50 Instead, the focus of analysis is on the purpose of the act in question regarding competitors.
    It will remain to be seen in practice what conduct could be engaged in by a dominant firm that would not be found to have a 'negative' effect on a competitor that is not, for example, exclusionary. In many contexts, competitive and healthy competition entails acting to win business from competitors, which will necessarily have a negative effect on them and which necessarily implies that the competitor has been excluded from that same business opportunities.
    A valid business justification may also provide an alternative explanation for the conduct in question and challenge the deemed intent behind the purpose of an act that resulted in anti-competitive effects.51 In Canada Pipe, the FCA clarified the requirements for a valid business justification, stating that it must provide a 'credible efficiency or pro-competitive explanation, unrelated to an anti-competitive purpose, for why the dominant firm engaged in the conduct alleged to be anti-competitive'.52 For example, the FCA did not accept 'improved consumer welfare' as a valid business justification. The court stresses that, although important, the justification does not possess an independent role. It remains pertinent and probative only in relation to whether the act was performed for a 'predatory, exclusionary or disciplinary negative effect on a competitor'.53 Therefore, it may only counter evidence of anti-competitive purpose and remains a factor to balance within section 79(1)(b).54
    Again, it will be interesting to see in future cases how, in practice, one will be able to show that an act has a valid business justification that is either efficient or pro-competitive, if one is precluded from justifying it on the basis of improved consumer welfare. Many would argue that the ultimate benefit and value in efficiency and pro-competitive conduct is, in fact, to be reflected in improved consumer welfare.

    Competitive effects

    The final element that must be proven before the Tribunal can make an order under section 79 is that the practice of anti-competitive acts has resulted or is likely to result in a substantial lessening or prevention of competition (SLC).
    In assessing the effects on competition, the FCA in Canada Pipe observed that section 79(1)(c) requires an approach that emphasises comparative and relative considerations in respect of three specified time frames: past, present and future.55 Assessing SLC requires a relative assessment rather than an absolute one: did the impugned practice result in a preventing or lessening of competition compared with the conditions governing in the absence of the practice, and was this lessening of a degree sufficient to be considered substantial?56
    To accomplish this comparative interpretation, the FCA in Canada Pipe adopted a 'but for' test: 'would the relevant markets - in the past, present, or future - be substantially more competitive but for the impugned practice of anti-competitive acts?'57 The FCA supports the use of the 'but for' test by referring to it in the Abuse of Dominance Guidelines along with excerpts from previous Tribunal decisions.58 Also, the FCA highlights the interpretation of earlier abuse of dominance cases where the Tribunal adopted tests comparable to the 'but for' test.59
    Concluding that the 'but for' test is a correct approach, the FCA also left open the possibility that the Tribunal may consider other appropriate tests in future abuse of dominance cases.60 The court, however, held that although the 'but for' test is not necessarily the only test the Tribunal may use to establish SLC, the requirements mandated by the statutory language of section 79(1)(c) demand that the Tribunal consider it. But the FCA went on to hold that whatever methodology the Tribunal chooses in any particular case, it must be 'reflective of all the different objectives of the Act'.61 Although this may be a laudable objective, the difficulty lies in the fact that in practice this is very difficult as often the Act's objectives are virtually irreconcilable in any particular case.
    It is in this area that the FCA's decision in Canada Pipe may have the most important implications. In general, the FCA's decision holds that the strict focus of section 79 is to preserve competition in a market on a relative basis rather than an absolute basis. With what appears to be such a formal and strict approach, it will remain to be seen how many other conducts would be caught by section 79 because, along with the commissioner only having to show an intended negative effect on a competitor, she will only have to show a relative substantial lessening of competition even though it may be that the market, in fact, remains competitive. Also, it will be interesting to see if in future cases this type of analysis will, in practice, essentially shift the onus from the commissioner to that of the dominant party to prove the worth of its conduct.

    Joint dominance

    Although the vast majority of abuse of dominance cases concern the exercise of unilateral market power, the concept of joint abuse of dominance or shared monopoly by a group of unaffiliated firms also exists under section 79(1). The abuse of dominance provisions have, however, received only a small amount of judicial consideration with respect to joint abuse cases. Consequently, it has not been clearly defined to what extent the relationship between unrelated parties may constitute a joint abuse. In these cases, in order to establish dominance, it must be shown that one or more firms control or have joint market power.
    Although it is unclear what type of relationship between parties would be contrary to section 79 in a joint abuse case, the Bureau has stated in its Abuse of Dominance Guidelines that it will not pursue cases under the abuse provisions that are merely examples of 'conscious parallelism.'62 (Whether uncoordinated conduct undertaken by more than one party could be addressed under section 77 of the Competition Act, which deals with tied selling, exclusive dealing and market restriction, where it is 'widespread' in a market, remains at least a legal possibility under the Act.) The Bureau has noted in its Strategic Alliances Bulletin that inter-firm cooperative arrangements may be open to review under abuse of dominance as well as the mergers and conspiracy provisions.63

    Remedies

    As indicated above, abuse of dominance is a non-criminal reviewable practice, and only the commissioner can commence a proceeding before the Tribunal to obtain a remedial order. Before commencing litigation, the commissioner's policy is to approach the firm engaging in the conduct under investigation in order to seek a voluntary change in behaviour.64 Recent amendments to the Competition Act created a private right of action before the Tribunal for refusal to deal, tied selling, exclusive dealing, and market restrictions, but no similar rights were created for abuse of dominance (though amendments have been suggested in this regard). Under the current law, breach of a Tribunal order against an abuse of dominance does give rise to a statutory right of private action for single damages. The breach of a Tribunal order is also a criminal offence punishable by fine or imprisonment or both.
    Once the Tribunal finds that a party has contravened section 79, it may issue an order under subsection 79(2) prohibiting the abusing parties from continuing the anti-competitive acts. If, on the other hand, the Tribunal concludes that a prohibition order is not likely to restore competition, it may make any other order against the dominant parties that is reasonable and necessary to overcome the effects of the practice of anti-competitive acts, such as an order that assets or shares be divested or that terms of a contract be rendered unenforceable.65
    The term 'may' in subsection 79(2) provides the Tribunal some discretion to refuse to issue an order even though it has found there has been an abuse of dominance.66 But the exercise of the Tribunal's discretion in this manner would be rare.67
    Section 79 sets out specific circumstances in which the Tribunal is not entitled to issue an order. These include where:

  • the act in question is engaged in pursuant only to the exercise of an intellectual property right68 (in Canada, compulsory licensing is generally not a remedy available to the Tribunal under the abuse provisions of the Competition Act,69 but it is possible under section 32 for the attorney general to seek a compulsory licensing remedy in certain rare circumstances);70
  • the practice of anti-competitive acts occurred more than three years before the commissioner's application;71 and
  • an application has already been brought based on the same or substantially the same facts pursuant to the Competition Act's conspiracy or merger provisions.72
  • In the event that the Tribunal decides to issue an order, its terms may affect only the rights of the dominant parties against whom the order is directed or any other person affecting it to the extent necessary to achieve the purpose of the order,73 and it must adopt 'the least intrusive course of action'.74 The Tribunal, however, has 'broad jurisdiction to interfere with property rights not only of the party or parties before it but also of third parties who have contracts with the respondent'.75 It is also important to note that, other than in domestic airline cases, an order under section 79 is not intended to impose penalties or punitive measures.76

    Conclusion

    For the moment, Canada's law on abuse of dominance appears relatively settled in the courts, but may continue to evolve through ongoing policy debates, the application of its provisions to specific industries, and possibly by future legislative amendments influenced by the recent release of the Competition Policy Review Panel's final report.

    Notes

    1 Competition Act, RSC 1985, c C-34 as amended (hereinafter Competition Act).
    2 Commissioner of Competition v Canada Pipe Company Ltd 2006 FCA 233, [2006] FCJ No. 1027 (hereinafter Canada Pipe).
    3 2007 CanLII 16765 (SCC).
    4 See generally Competition Bureau, Enforcement Guidelines on the Abuse of Dominance Provisions (July 2001), online at:
    www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/vwapj/aod.pdf/$FILE/aod.pdf (hereinafter Abuse of Dominance Guidelines).
    5 Before 1986, monopolisation was a criminal offence. The criminal prohibition against monopolies was originally enacted in 1910 (Combines Investigation Act chapter 9, section 2(c), 1910 SC) but it was seldom enforced. Between 1910 and 1986, only 11 prosecutions were brought.
    6 See Commissioner of Competition v Canada Pipe Company Ltd 2005 Comp. Trib. 3 at paragraph 7. See also Canada (Director of Investigation and Research) v D & B Companies of Canada Ltd (1995), 64 CPR (3d) 216 at 222-223 (hereinafter D&B Companies of Canada).
    7 Canada Pipe, supra note 2 at paragraph 48.
    8 Competition Act, supra note 1, section 78(j) and (k). See Speaking Notes for Sheridan Scott, Commissioner of Competition, to the Standing Committee on Industry, Natural Resources, Science and Technology regarding Bill C-19, An Act to amend the Competition Act and to make consequential amendments to other Acts (18 November 2004), online at www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/vwapj/ct02993_eng_speech-nov18-04.pdf/$file/ct02993_eng_speech-nov18-04.pdf. The Bureau has also issued 'Draft Enforcement Guidelines on the Abuse of Dominance in the Airline Industry' (February 2001), online at http://strategis.ic.gc.ca/pics/ct/airline.pdf.
    9 The Bureau has issued an information bulletin entitled 'The Abuse of Dominance Provision (sections 78 and 79 of the Competition Act) as applied to the Canadian Grocery Sector' (November 2002), online at http://strategis.ic.gc.ca/pics/ct/ct02465e.pdf.
    10 Information Bulletin on the Abuse of Dominance Provisions as Applied to the Telecommunications Industry (June 6, 2008), online at www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/en/02690e.html.
    11 Competition Policy Review Panel Final Report Compete to Win (June 2008), online at www.ic.gc.ca/epic/site/cprp-gepmc.nsf/vwapj/Compete_to_Win.pdf/$FILE/Compete_to_Win.pdf (hereinafter Compete to Win)
    12 Competition Act, supra note 1, section 79(1).
    13 Canada Pipe, supra note 2 at paragraph 28.
    14 Canada Pipe, supra note 2 at paragraphs 27-28.
    15 Commissioner of Competition v Canada Pipe Company Ltd 2006 FCA 236, at paragraph 10 (hereinafter Canada Pipe Cross). See also Canada Pipe, supra note 2 at paragraph 65.
    16 Canada Pipe Cross, ibid, at paragraph 52. See also Canada (DIR) v NutraSweet Co (1990), 32 CPR (3d) 1 at 28 (Competition Tribunal) (hereinafter NutraSweet).
    17 Abuse of Dominance Guidelines, supra note 4 at 13-14.
    18 Canada Pipe, supra note 2 at paragraph 53.
    19 Canada Pipe, supra note 2 at paragraph 122.
    20 Canada Pipe, supra note 2 at paragraph 122.
    21 The Tribunal in both Canada (DIR) v Laidlaw Waste Systems Ltd (1992), 40 CPR (3d) 289 (hereinafter Laidlaw) and NutraSweet, supra note 16, made an interpretation of section 79(1)(a) in which the Tribunal in D&B Companies of Canada, supra note 6, agreed that: 'Paragraph (a) specifically divides the two dimensions of a market: 'class or species of business' refers to the relevant product market and 'throughout Canada or any area thereof' to the relevant geographic market.'
    22 Canada Pipe Cross, supra note 15 at paragraph 12. See also Canada (DIR) v Tele-Direct (Publications) Inc (1997), 73 CPR (3d) 1 at 35 (Competition Tribunal) (hereinafter Tele-Direct).
    23 For example, see D&B Companies of Canada, supra note 6 at 224-25.
    24 Canada Pipe Cross, supra note 15 at paragraph 10. Tele-Direct, supra note 22 at 33. See also D&B Companies of Canada, supra note 6 at 232.
    25 Laidlaw, supra note 21 at 317.
    26 Canada Pipe, supra note 2 at paragraph 138. See also Canada Pipe Cross, supra note 15 at paragraph 24.
    27 Laidlaw, supra note 21 at 317.
    28 See Tele-Direct, supra note 22 at 217. See also Abuse of Dominance Guidelines, supra note 4.
    29 Abuse of Dominance Guidelines, supra note 4 at 15.
    30 Predatory Pricing Enforcement Guidelines at p. 10 available online at: www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/vwapj/Predatory_Pricing_Guidelines-e.pdf/$file/Predatory_Pricing_Guidelines-e.pdf (hereinafter the Predatory Pricing Enforcement Guidelines).
    31 Canada Pipe, supra note 2 at paragraph 138.
    32 Canada Pipe, supra note 2 at paragraph 138.
    33 Canada Pipe, supra note 2 at paragraph 60. See also Tele-Direct, supra note 22 at 211.
    34 Canada Pipe, supra note 2 at paragraph 69. See also NutraSweet, supra note 16 at 35.
    35 Canada Pipe, supra note 2 at paragraph 171.
    36 Canada Pipe, supra note 2 at paragraph 63. See also D&B Companies of Canada, supra note 6 at 257.
    37 Predatory Pricing Enforcement Guidelines, supra note 30.
    38 Compete to Win, supra note 11 at p. 61.
    39 Supra note 4.
    40 Canada Pipe, supra note 2 at paragraph 191. See also Tele-Direct, supra note 22.
    41 Canada Pipe, supra note 2 at paragraphs 6, 68, 72, 78 and 82.
    42 Canada Pipe, supra note 2 at paragraph 64. See also NutraSweet, supra note 16 at 34.
    43 Canada Pipe, supra note 2 at paragraph 64. See NutraSweet, supra note 16 at 34.
    44 Canada Pipe, supra note 2 at paragraph 67. See also Tele-Direct, supra note 22 at 180.
    45 Canada Pipe, supra note 2 at paragraph 70. See also Laidlaw, supra note 21 at 334: 'While subjective intent may not be a required element in order to find that a given practice (series of acts) is of an anti-competitive nature in this case such exists. It can therefore be taken into consideration as part of the relevant evidence.'
    46 Canada Pipe, supra note 2 at paragraphs 71-73. See also D&B Companies of Canada, supra note 6 at 257. See also Abuse of Dominance Guidelines, supra note 4 at 18.
    47 Canada Pipe, supra note 2 at paragraph 88. See also D&B Companies of Canada, supra note 6 at 265. However, the concept of 'superior competitive performance' is relevant in determining whether a practice is likely to have the effect of preventing or lessening competition substantially in a relevant market, see Competition Act, supra note 1, section 79(4).
    48 Canada Pipe, supra note 2 at paragraph 72.
    49 Canada Pipe, supra note 2 at paragraph 77.
    50 Canada Pipe, supra note 2 at paragraphs 77, 80.
    51 Canada Pipe, supra note 2 at paragraph 73.
    52 Canada Pipe, supra note 2 at paragraph 91.
    53 Canada Pipe, supra note 2 at paragraph 87.
    54 Canada Pipe, supra note 2 at paragraph 88.
    55 Canada Pipe, supra note 2 at paragraph 44.
    56 Canada Pipe, supra note 2 at paragraphs 36, 43.
    57 Canada Pipe, supra note 2 at paragraph 38.
    58 Canada Pipe, supra note 2 at paragraph 42. See Abuse of Dominance Guidelines, supra note 4 at 5. See Concord Boat Corporation v Brunswick Corporation, 207 F3d 1039 at 1055 (8th Cir 2000).
    59 Canada Pipe, supra note 2 at paragraph 51. See also Laidlaw, supra note 21 at 344-346. See D&B Companies of Canada, supra note 6 at 267. See NutraSweet, supra note 16 at 47.
    60 Canada Pipe, supra note 2 at paragraph 44.
    61 Canada Pipe, supra note 2 at paragraph 47.
    62 See Abuse of Dominance Guidelines, supra note 4 at 17.
    63 Competition Bureau, 'Strategic Alliances Under the Competition Act' (Information Bulletin) (1995) (hereinafter Strategic Alliances), online at www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/vwapj/strategic-alliances-e.pdf/$FILE/strategic-alliances-e.pdf.
    64 Sheridan Scott, Commissioner of Competition, Speaking notes re Abuse of Dominance Under the Competition Act, Federal Trade Commissioner/Department of Justice Hearings on Single-firm Conduct, Washington, DC, 12 September 2006, online at www.competitionbureau.gc.ca/epic/site/cb-bc.nsf/vwapj/Speech_Final_2006_09_11_EN.pdf/$FILE/Speech_Final_2006_09_11_EN.pdf.
    65 Competition Act, supra note 1, section 79(1)-(2). See Canada (DIR) v Bank of Montreal (1996), 68 CPR (3d) 527 at 528 (Competition Tribunal) (hereinafter Bank of Montreal): 'In an abuse of dominance case, the test is whether the consent order will, in all likelihood, eliminate the substantial lessening of competition which is presumed to result from the practice of anti-competitive acts identified in the application.'
    66 D&B Companies of Canada, supra note 6 at 278. The circumstances of this case justified the Tribunal's decision not to issue a remedy order. The Tribunal found that competition in the relevant market would be less effective if an order were issued against the defendant.
    67 Ibid. Abuse of dominance by an airline in Canada may also be the subject of an administrative monetary penalty (AMP) of up to C$15 million. Strategic Alliances, supra note 63.
    68 Competition Act, supra note 1, subsection 79(5). Under section 32, there is a provision for special remedies, including compulsory licensing, that has never been used in a contested case.
    69 Competition Act, supra note 1, subsection 79(5). Under section 32, there is a provision for compulsory licensing that has never been used in a contested case. That section, however, confers jurisdiction only to the Federal Court of Canada.
    70 Commissioner of Competition, Intellectual Property Enforcement Guidelines (September 2000), online at http://strategis.ic.gc.ca/pics/ct/ipege.pdf.
    71 Competition Act, supra note 1, subsection 79(6).
    72 Competition Act, supra note 1, subsections 79(7), 45(1), and 98.
    73 Competition Act, supra note 1, subsection 79(3).
    74 Bank of Montreal, supra note 65 at 528. The Tribunal's first goal in making an order is to restore competition, or in other words, to eliminate the substantial lessening of competition. And if there are alternatives available, then they must adopt the least intrusive course of action.
    75 See Laidlaw, supra note 21 at 352.
    76 Ibid at 351. As indicated above, however, the government of Canada has contemplated the introduction of administrative monetary matters for abuse of dominance.

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