In the last two years, there have been no abuse of dominance cases and one contested merger case, which was dropped. Recently, however, amendments to the Competition Act transfer jurisdiction over some anti-competitive agreements and price maintenance to the Tribunal.

This article reviews the cases in the Tribunal over the last two years and the recent amendments to the Competition Act, as they affect practice in the Tribunal.

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Contributors: Michael Osborne, Sonny Ingram, Sandra Monardo, Michelle Booth, Adam Wygodny, and Donna Wilson.

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Canada’s new competition law
Budget 2009 includes the most significant amendments to the Competition Act in a generation:
• A new “per se” conspiracy offence makes it illegal for competitors or potential competitors to fix prices, allocate markets, or control production of a product, even if there is no effect on competition…and more…

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THE LITIGATOR – Review of Competition Law – April 2007

Contributors: Michael Osborne , Jennifer Cantwell, Kyle Peterson , Sonny Ingram, Michael Binetti, and Adam Wygodny

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Appeal court revises test for abuse of dominant position
In identifying anti-competitive acts, one must ask whether the conduct had an intended predatory, exclusionary or disciplinary effect on a competitor, not on competition, the Federal Court of Appeal held in overturning the Tribunal’s 2005 finding that Canada Pipe’s rebate program was not anti-competitive….

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On March 22, 2006, the Telecommunications Policy Review Panel issued a report recommending reliance on market forces and competition policy, instead of regulation, in the telecom sector.

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Contributors: Michael Osborne , Jennifer Cantwell, Paul Emerson, Angela Yadav, Sonny Ingram, and Michael Binetti

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Rona keeps Sherbrooke store
In May, the Competition Tribunal rescinded a September 2003 consent agreement, allowing home improvement retailer Rona Inc. to keep the Sherbrooke , Quebec store it agreed to sell to gain Bureau approval of its acquisition of Réno-Dépot. The Tribunal found that Home Depot’s imminent arrival was a change in the circumstances that led to the consent agreement, and that the agreement would not have been made in the present circumstances. The Tribunal rejected the Commissioner’s arguments that it should refuse to rescind the agreement as a matter of discretion.

The Tribunal’s decision is the first time that the Competition Act’s variation / rescission provision (s. 106) has been applied to a consent agreement. Because consent agreements are negotiated and made by the parties, not the Tribunal, the Tribunal must look to the intentions of the parties. The Tribunal also emphasized that the Commissioner must be responsive to changing circumstances.

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