THE CHANGING FACE OF ABUSE OF DOMINANCE UNDER CANADA’S COMPETITION ACT
Through cascading amendments to the Competition Act’s anti-monopolisation (abuse of dominance) provisions, Canadian legislators have set the stage for a wave of private claims.
Canada’s abuse of dominance regime has long been an outlier compared to many of its peers. Until recently, only the Commissioner of Competition could bring applications for abuse of dominance and did so relatively rarely.
Furthermore, when the Commissioner has brought cases, successes have been few and far between. This sparse landscape can be contrasted with enforcement activity in other jurisdictions, such as the US and the UK, where enforcers have achieved significant results and where private claims represent strong deterrents.
Amendments to the Act have increased the penalties for abuse of dominance, lowered the substantive legal test for relief and broadened access to include private parties. Further amendments proposed in Bill C-59 (a budget bill currently before parliament) would provide an additional route for private applicants to reach the Competition Tribunal and establish new remedies for abuse of dominance.
These new changes will bring Canada’s anti-monopolisation framework closer in line with the UK and the US. If the experience in those jurisdictions is indicative, private claims for monopolisation should invite substantial litigation in Canada, as they have elsewhere.
Jul-Sep 2024 issue
McCarthy Tetrault