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March 28, 2017

In my C.D. Howe Institute Intelligence Memo today, I recommend that the references provision of the Competition Act (section 124.2) be amended to allow private parties to bring Competition Tribunal references on points of law. Below is an excerpt with a link to the full memo.

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Despite being in force in one form or another for over a hundred years, Canadian competition law remains relatively underdeveloped compared to other major jurisdictions. A number of key sections have not been considered by the Competition Tribunal or the courts at all or only rarely. Amending the references provision of the Competition Act (section 124.2, which allows the Tribunal to issue decisions on points of law, among other things, without the need for a full hearing) would help solve this.

The Act provides a number of options to resolve contentious matters, but few avenues for guidance on standalone points of law.

Private parties can request written opinions from the Competition Bureau (section 124.1). However, opinions are discretionary. Also, given that since 2011 the Bureau has significantly circumscribed their scope – for example, to not provide any view on defenses or effects – they are of much less practical value than in the past.

Another section that provides some options is section 124.2 that was added to the Act in 2002.

However, the Act does not allow references brought by private parties alone, irrespective of proceedings initiated. This is an important gap.

(…)

For the full memo see: A Proposal to Amend the Competition Act Reference Section.

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