CHAPTER 07 Competition Law
IMMUNITY FROM PROSECUTION The Commissioner has an immunity policy, which may allow an applicant who is “first in” to report a criminal offence (such as conspiracy or bid-rigging) to receive a recommendation of immunity from prosecution in exchange for cooperation in the prosecution of others, provided that the applicant meets the other criteria set out in the immunity policy. Subsequent applicants may seek another form of lenient treatment, such as a reduction in sentence, but will not normally be eligible for a recommendation of immunity unless the first-in party ultimately does not qualify. Non-Criminal Reviewable Matters Under the Competition Act The CA also contains civil prohibitions (“reviewable practices”) that are generally adjudicated by the Tribunal upon application by the Commissioner (or in some cases by private parties, with leave of the Tribunal). Generally speaking, relief is available only upon a finding that the practice in question has had an anticompetitive effect in the relevant market, and is limited to an order enjoining the continuation of such conduct (or other orders only on consent of the defendant). Important exceptions in this regard are the civil prohibition against “abuse of dominance” and “misleading advertising,” which carry the potential imposition of an “administrative monetary penalty,” as discussed below.
ABUSE OF DOMINANT POSITION The abuse of dominance provisions prohibit conduct by a dominant firm or group of firms that has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market. All of the following three criteria must be satisfied in order to establish abuse of dominance: i) One or more persons substantially or completely control a class or species of business throughout Canada or any part of Canada. ii) Such person or persons have engaged, or are engaging, in a practice of anticompetitive acts. iii) The practice has had, is having or will likely have the effect of preventing or lessening competition substantially. As discussed below, private parties may also apply to the Tribunal for relief against alleged abuses of dominance, although private parties are unable to seek compensatory damages.
The Competition Act also contains non-criminal prohibitions of reviewable practices, which are generally adjudicated by the Tribunal upon application by the Commissioner.
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