Archive for the 'Private Actions' Category
March 30, 2014
In an interesting and important decision issued late last week, the British Columbia Supreme Court has certified a Competition Act class action against Visa Canada Corporation, MasterCard International Inc. and a number of major banks (including Bank of America, BMO, Bank of Nova Scotia and CIBC) (Watson v. Bank of America Corporation, 2014 BCSC 532). In this case the plaintiff seeks to represent two classes of Canadian merchants who accepted payments for goods or services by way of Visa and MasterCard credit cards from 2001 to the present.
March 29, 2014
Private parties may commence damages actions under the Competition Act (the “Act”) for violations of the criminal provisions of the Act (under Part VI) or a breach of a court or Competition Tribunal (“Tribunal”) order made under the Act.
February 17, 2014
Helping their clients understand (and take steps to avoid) competition/antitrust law cartels is top of the list for outside and in-house competition counsel. The detection and enforcement of competition law cartels has also continued to receive increased enforcement attention in the past few years, both in Canada over the terms of the last two Commissioners of competition, as well as international antitrust agencies, notably in the EU and U.S.
January 23, 2014
Steve Szentesi
Kevin Wright (Davis LLP)
Extract from a chapter to be published in CLEBC
Annual Review of Law & Practice – 2014
The following are several of the key competition law private action cases in Canada in 2013 from our forthcoming chapter in CLEBC’s Annual Review of Law & Practice – 2014. For the first three posts (misleading advertising, mergers and Investment Canada Act, and civil and criminal matters) see: here, here and here. Tomorrow I’ll post our final update of key competition law developments from last year: trade and professional associations, new Competition Bureau guidelines and other developments.
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Joint Procurement of Oilfield Services
On June 14, 2013, the Alberta Court of Appeal unanimously reversed a controversial trial judgment holding that two competing oil and gas producers had illegally conspired contrary to the pre-2010 version of section 45 of the Act (i.e., the criminal conspiracy provision) by agreeing to use one supplier of certain oil field services to the exclusion of the plaintiff: 321665 Alberta Ltd. v. Husky Oil Operations Ltd., 2013 ABCA 221. On January 16, 2014, the Supreme Court of Canada dismissed the plaintiff’s application for leave to appeal.
December 13, 2013
In a decision issued earlier this week, Canada’s Competition Tribunal denied a Vancouver tobacco retailer’s price maintenance leave application against manufacturer Imperial Tobacco (“Imperial”) (Safa Enterprises Inc. v. Imperial Tobacco Company Limited, 2013 Comp. Trib. 19, File No. CT-2013-007).
September 20, 2013
Earlier this week, it was announced that four of Canada’s largest producers of chocolate had settled a Canadian price-fixing class action brought against them for $23.2 million (see: http://www.chocolateclassaction.com) in a case that has been ongoing now for some six years. Settlements have now been reached with Cadbury Adams Canada Inc., Hershey Canada Inc., Nestlé Canada Inc. and Mars Canada Inc. and approved by British Columbia, Ontario and Quebec courts.
January 28, 2013
In a decision in December, issued today (see: Green v. Tecumseh Products of Canada Limited, 2012 BCSC 2026), the BC Supreme Court approved a settlement with two defendants in a competition class action involving alleged price-fixing of cooling compressors.
The class proceedings in this case began in October, 2010 on behalf of BC residents that purchased cooling compressors and other products manufactured by the settling defendants and other defendants. According to the plaintiff, the defendants allegedly fixed cooling compressor prices or allocated markets and customers in Canada.
In October, 2010, the Bureau announced that Embraco North America Inc. plead guilty and was fined $1.5 for participating in fixing the price of cooling compressors (see: Embraco North America Inc. Pleads Guilty to Price-Fixing Conspiracy). In November, 2010, the Bureau made a similar announcement in relation to Panasonic Corporation (see: Panasonic Corporation Pleads Guilty to Price-Fixing Conspiracy).
As part of the settlement in the decision issued earlier today, the two settling defendants ACC USA LLC and ACC Sp.A, with a relatively small combined volume of commerce in Canada, entered into a settlement agreement with the plaintiff, agreed to pay $50,000 (and costs up to a further $50,000) and to cooperate with the plaintiff.
January 26, 2013
Steve Szentesi
Kevin Wright (Davis LLP)
(with contributions by Jonathan Gilhen – Davis LLP)
Extract from a chapter to be published in CLEBC’s
Annual Review of Law & Practice – 2013
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2012 was a busy year for Canadian competition and foreign investment law, with significant developments in all major areas including misleading advertising, mergers, abuse of dominance, criminal matters (including cartels, bid-rigging and deceptive marketing) and private actions. The following is an overview of some of the key abuse of dominance, private action and other competition developments in 2012.
Abuse of Dominance
Commissioner of Competition v. The Toronto Real Estate Board
In Commissioner of Competition v. The Toronto Real Estate Board, the Competition Bureau (the “Bureau”) commenced an abuse of dominance application against The Toronto Real Estate Board (“TREB”), Canada’s largest real estate board. The Bureau is alleging that TREB is dominant in the residential real estate services market in the Greater Toronto Area (“GTA”), certain TREB membership rules governing the use of its multiple listing service or “MLS®” data are anti-competitive and that competition has been substantially lessened in the relevant market (residential real estate services in the GTA).
In particular, the Bureau’s challenge involves TREB membership rules governing the use of its MLS® data that the Bureau argues restrict or prevent members from offering various innovative new services over the Internet, such as “virtual office websites” or “VOWs” that would allow potential clients to conduct their own property searches on brokers’ password protected websites without the assistance or involvement of brokers. The Bureau is arguing that TREB’s restrictions on using its MLS® data for VOWs has prevented the development of more efficient and cost effective business models by forcing existing members to use traditional broker models and prevented members from joining TREB to launch new Internet based services.
TREB in turn has argued that the rules for the use of its MLS® system are a legitimate exercise of intellectual property rights, its policies do not substantially prevent or lessen competition, that some proposed uses of its data raise privacy concerns and that it cannot be dominant in a market in which it does not participate (as a trade association it does not itself provide any real estate services).
Like the Bureau’s 2009 abuse of dominance challenge against The Canadian Real Estate Association, this case also focuses on membership rules and access to the MLS® system, and more specifically TREB’s ability to exclude and discipline non-compliant members by foreclosing access to its MLS® data. This case was ongoing at the time of writing.
New Abuse of Dominance Enforcement Guidelines
In September 2012, the Bureau issued new Abuse of Dominance Guidelines (“Abuse Guidelines”) that set out its enforcement policy for the civil abuse of dominance provisions of the Competition Act (the “Act”) (sections 78 and 79). The Bureau’s new Abuse Guidelines replace its former 2001 guidelines and several sector- and conduct-specific guidelines and bulletins relating to the airline, grocery and telecommunications industries and predatory pricing.
The new Abuse Guidelines are substantially shorter with significantly less analysis and fewer examples than the Bureau’s previous guidelines. In general, they also provide less comfort for firms regarding several key concepts, notably potential investigation risk in the absence of market power or conduct that is not exclusionary. They also introduce some new and somewhat controversial positions by the Bureau. Some key aspects of the new Abuse Guidelines include:
Preserving market share thresholds with no bright line safe harbors. As before, the new Abuse Guidelines contain no bright-line market share safe harbours below which the Bureau may not commence enforcement (for single firm dominance, a market share of less than 35% will generally not prompt further examination; between 35% and 50% will prompt further examination if a firm appears likely to increase its share through anti-competitive acts; and more than 50% will generally prompt further examination).
Expanding when the Bureau may investigate allegations of abuse. The new Abuse Guidelines state that the Bureau may investigate allegations of abuse of dominance in some instances even where a firm does not currently possess market power.
Joint dominance. The Abuse Guidelines provide new guidance on the degree of coordination the Bureau considers necessary for joint dominance, adopting a new approach to assess joint dominance (considering the ability of existing and potential competition to restrain firms’ market power and competition between firms) and stating that similar or parallel conduct alone is insufficient to conclude that firms are jointly dominant.
Enforcement in the absence of exclusionary conduct. The Abuse Guidelines also indicate that the Bureau may take enforcement action in some cases where conduct is not exclusionary (i.e., not only where a dominant firm engages in conduct that is predatory, exclusionary or disciplinary toward a competitor, the test for an anti-competitive act established by the Tribunal and the Federal Court).
Valid business justification. The Abuse Guidelines discuss what may constitute a valid business justification for the second branch of the test for abuse of dominance under section 79 with some examples, including reducing costs or improvements in technology. While the Federal Court of Appeal held in the leading Canadian abuse of dominance case, Canada Pipe, that proof of a valid business justification for allegedly anti-competitive conduct can offset and provide an alternative explanation for conduct, Canadian courts and the Bureau have to date provided little guidance as to what may in fact constitute a valid business justification.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
