ABUSE OF DOMINANCE
OUR SERVICES
We practice federal competition law, have provided Canadian competition law advice to clients across Canada and internationally and provide a full range of competition law and foreign investment law services including in relation to the criminal conspiracy, merger, abuse of dominance, misleading advertising and deceptive marketing provisions of the federal Competition Act.
Our competition law services in relation to abuse of dominance include advice on the application of the abuse of dominance provisions of the Competition Act, potential penalties and assisting companies and trade associations structure competition law compliance programs.
OVERVIEW OF ABUSE OF DOMINANCE IN CANADA
Under section 79 of the Competition Act (the “Act”), considered to be a ”cornerstone” of Canadian competition law, abuse of dominance occurs when a dominant firm (or firms) in a market has engaged in (or is engaging in) a practice of anti-competitive acts that has an intended negative effect on a competitor that is exclusionary, predatory or disciplinary with the result that competition has been, is being or is likely to be prevented or lessened substantially. Under Canadian competition law, as in many other major jurisdictions, is not dominance per se that is sanctioned, but rather the abuse of a dominant position. Moreover, while the relevant test to establish abuse of dominance considers anti-competitive conduct directed at particular competitors, the requisite market impact is that overall competition in a relevant market must be prevented or lessened substantially.
Elements
To establish abuse of dominance under the Act, which is a civil “reviewable matter”, it must be established on a civil standard that (i) a firm has market power in a relevant market, (ii) has engaged in a practice of anti-competitive acts and (iii) the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially.
Section 78 of the Act sets out a non-exhaustive list of anti-competitive acts (e.g., vertical squeezing, the acquisition of suppliers or customers, the use of fighting brands and below cost sales), with case law having established other “anti-competitive acts”.
While there have been less than ten contested abuse of dominance cases in the past twenty-five years (the recent Bureau application against The Canadian Real Estate Association, filed earlier this year, being the most recent contested case), abuse of dominance is an increasing priority for the Bureau and the enforcement landscape has recently changed with the recent introduction of significant monetary penalties for contravention of the abuse of dominance provisions.
Penalties
Where abuse of dominance is established, the Tribunal may make remedial orders that include prohibiting the anti-competitive conduct or ordering the divestiture of assets or shares. In addition, as a result of the recent amendments to the Act, the Tribunal also now has the power to make orders for the payment of “administrative monetary penalties” (essentially civil fines) of up to $10 million ($15 million for subsequent orders).
CANADIAN ABUSE OF DOMINANCE LINKS AND RESOURCES
Enforcement Guidelines on the Abuse of Dominance Provisions (Enforcement Guidelines)
Abuse of Market Power (Pamphlet)
The Abuse of Dominance Provisions as Applied to the Canadian Grocery Sector
INTERNATIONAL ABUSE OF DOMINANCE LINKS AND RESOURCES
European Commission
European Commission (Antitrust)
ICN
ICN (Unilateral Conduct Working Group)
OECD
OECD (Abuse of Dominance and Monopolisation)
U.S. DOJ / FTC
CANADIAN COMPETITION LAW LINKS
For more information about Canadian competition law or our competition law services visit our: Abuse of Dominance, Advertising and Marketing Law, Bid Rigging, Canadian Competition Law, Canadian Competition Law Compliance, Canadian Competition Law Home, Competition Act Amendments, Competition Bureau Investigations, Competition Law Courses and Conferences, Competition Law Litigation, Competition Law Publications, Competition Law Resources, Competition Law Services, Conferences, Conspiracy and Competitor Collaborations, Conspiracy – FAQs, Global Competition / Antitrust Law Resources, Global Competition Law Updates, Investment Canada Act, Merger Control, Merger Control FAQs, Private Actions, Promotional Contests, Publications, Refusal to Deal, Team, Trade Associations or Trade Association Cases pages or visit our website at www.NortonStewart.com.
CONTACT US
We provide Canadian competition law and consulting services to Canadian and international clients. For more information about our services contact us at steve@nortonstewart.com, info@competitionlawcanada.com or call us on +1 604 687 0555 or +1 778 867 5558. Visit us on the web in Toronto at www.torontocompetitionlawyer.com or www.torontocompetitionlaw.com.