COMPETITION LITIGATION FAQS
Are private civil actions possible under the Competition Act?
What is the procedural framework for commencing Competition Act private actions?
Under section 36 of the Competition Act (the “Act”), private parties that have suffered damage as a result of a violation of the criminal provisions of the Act (e.g., a criminal price-fixing agreement under section 45) or a breach of a Competition Tribunal or other court order may commence private actions.
While section 45 of the Act is most commonly plead, competition law private actions may also be based on the criminal misleading advertising, bid-rigging, deceptive telemarketing and pyramid selling provisions.
Can competition law claims be combined with other causes of action?
Yes. It is common for competition law private actions to be combined with common law causes of action, including interference with economic relations, common law conspiracy and restraint of trade.
Including common law causes of action may both expand the potential bases of recovery in a competition law private action and the applicable limitation periods, given that the limitation period for private actions under the Act is relatively short (two years).
Where are Competition Act private actions commenced?
Competition law private actions may be commenced in provincial superior courts or the Federal Court of Canada.
How did the 2009/2010 amendments to the Competition Act affect private actions?
As a result of the 2009/2010 amendments to the Act, it is no longer necessary to prove that competition has been “unduly” prevented or lessened under section 45 of the Act (the criminal conspiracy provision), which is the most common section under which competition law private actions are commenced in Canada.
As section 45 now contains three “per se” criminal offences (price-fixing, market division/allocation and output/supply restriction agreements between competitors), without the necessity to show any adverse market effects, it is now easier to prove that section 45 has been contravened.
Can Competition Act private actions be commenced against both individuals and corporations?
Yes. Competition law private actions can, and frequently are, brought against corporate entities and individuals, which may include directors and officers or employees who are parties to the offence(s).
Is a criminal conviction necessary to commence a private action?
No. While private actions are commenced under the criminal provisions of the Act (e.g., the criminal conspiracy or criminal misleading advertising provisions), a conviction is not a necessary prerequisite to commence a private action.
As a practical matter, however, many “follow on” actions are commenced following a conviction or guilty plea, given that subsection 36(2) of the Act provides that “the record of proceedings in any court in which that person was convicted of an offence under Part VI …” is prima facie evidence of a violation of the criminal provision(s).
Are immunity or leniency applicants protected from subsequent private litigation?
No. While applicants in the Competition Bureau’s Immunity or Leniency Programs may receive full immunity or leniency in penalties, they are not immune from follow on private litigation. As such, one aspect for potential immunity or leniency applicants to consider is the risk of follow on civil litigation or class actions flowing from their activities.
What is the standard of proof for plaintiffs in Competition Act private actions?
The standard of proof for competition law private actions is the standard civil burden (i.e., balance of probabilities). There was formerly some uncertainty whether, because competition law civil actions are based on breaches of criminal provisions of the Act, a higher burden was required. The Supreme Court of Canada has now held, however, that there is only one burden of proof for all civil actions – the civil burden, balance of probabilities.
What is the limitation period to commence Competition Act private actions?
Civil actions under the Act cannot be commenced more than two years from the later of the day the conduct was engaged in or the day on which any criminal proceedings were finally disposed of. In addition to this statutory limitation period, other limitation periods may also apply if other causes of action are also being pleaded (e.g., common law causes of action, such as interference with economic relations, common law conspiracy, restraint of trade, etc.).
Are class actions possible under the Competition Act?
Yes. Class actions are both possible and increasingly common for competition law matters, and are commenced under provincial class action legislation.
With the amendments to the Act in 2009 and 2010, which lowered the bar to enforce section 45 offences (price-fixing, market allocation/division and output/supply restriction agreements), it is also anticipated that competition law class activity in Canada will increase.
What is the test for certify a competition law class action?
The test for certification of a class action in most provinces is generally as follows: (a) the pleadings of notice of application disclose a cause of action, (b) there is an identifiable class of two or more persons, (c) the claim of the class members raises common issues, (d) a class proceeding is the preferable procedure for the resolution of the common issues and (e) there is a representative plaintiff that: (i) would fairly and adequately represent the class, (ii) has produced a workable plan for advancing the proceedings on behalf of the class and of notifying class members of the proceeding and (iii) with respect to the common issues, does not have interests that may conflict with other members of the class.
What types of damages or other remedies are available?
Section 36 of the Act, under which private actions are commenced, provides that plaintiffs are entitled to receive actual damages. Plaintiffs are also entitled to recover the costs of any investigation and proceedings. Unlike in the U.S., however, only single not treble damages are available.
In contrast, in “private access” proceedings under the Act (i.e., applications to the Competition Tribunal under the price maintenance, refusal to deal and tied selling / exclusive dealing / market restriction provisions), only “remedial orders” are available from the Tribunal (orders for conduct to cease, for a supplier to resupply on usual trade terms, etc.). Unlike private actions, damages are not available in private access proceedings.
LINKS AND RESOURCES
Competition Act: Competition Act – Competition Tribunal: Competition Tribunal – Competition Bureau: Competition Bureau – Legal Actions and Opinions, Competition Bureau – Court Decisions, Competition Bureau – Alternative Case Resolutions – Bulletins: Information Bulletin on Private Access to the Competition Tribunal
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