Canadian COMPETITION LAW

The Competition Tribunal has issued its decision in the TREB abuse of dominance case responding to TREB’s attempt to have a Notice of Constitutional Question heard by the Tribunal.

In refusing to “entertain” TREB’s Notice, which TREB attempted to file with the Tribunal on August 24^th (and which the Tribunal refused to accept for filing – see: here), the Tribunal held that the constitutional issues raised by TREB should not be heard on the basis that it contravened the Tribunal’s scheduling order (made on consent), there was no justification for the delay (and that TREB had failed to offer any satisfactory explanation for a breach of the order) and that a disruption of the hearing was likely.

TREB’s Notice challenged the constitutionality of the order sought by the Commissioner of Competition under Canadian competition law, including based on the regulated conduct defence (i.e., that the regulated conduct defence should apply because real estate brokers and agents in Ontario are subject to the provisions of the Real Estate and Business Brokers Act).

The regulated conduct defence or “RCD”, which is now partially codified under section 45(7) of the Competition Act, is one of a number of defences and exceptions that, when met, can apply to provide immunity from the application of the Act.  In particular, the RCD can apply where conduct that may otherwise be subject to the Competition Act is either mandated or authorized by validly enacted provincial or federal legislation (though does not provide immunity merely because an industry is regulated generally, or there is authorization for conduct that is not subject to challenge under the Act).

For a copy of the Tribunal’s decision see: Commissioner of Competition v. Toronto Real Estate Board.

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