Antitrust Litigation 2023 Comparisons

Canada’s Competition Act (the “Act”) provides for public and private enforcement.

Public enforcement arises primarily from Canada’s Commissioner of Competition (the “Commissioner”). The Commissioner heads Canada’s Competition Bureau (the “Bureau”), an independent law enforcement agency responsible for the administration and enforcement of the Act. For most reviewable practices, the Commissioner has the dual role of investigator of potential anti-competitive conduct and prosecutor before Canada’s Competition Tribunal and the courts. 

Private enforcement encompasses private rights of action for damages. The private right of action permits victims of criminal anti-competitive conduct to seek recovery for loss or damage suffered. As a practical matter, the vast majority of private enforcement arises in the context of class actions.   

Recently, public enforcement has focused on merger review, with the Commissioner contesting (with mixed success) three mergers before the Competition Tribunal. 

In Rogers/Shaw, the Commissioner sought to block Rogers’ proposed acquisition of Shaw. Both are large telecommunications companies and provided wireless services in Canada. Rogers proposed divesting most of Shaw’s wireless assets to a third party in response to competition concerns. Unsatisfied with this proposed remedy, the Commissioner challenged the transaction and the proposed “fix”. Following an expedited hearing, the Competition Tribunal dismissed the Commissioner’s application, allowing the mergers and proposed fix to proceed.

P&H involved Parrish & Heimbeck’s acquisition of multiple primary grain elevators in western Canada. The parties closed the transaction despite expressed competition concerns. Subsequently, the Commissioner challenged only the acquisition of the primary grain elevator in the local area. Following a contested hearing, the Competition Tribunal dismissed the Commissioner’s application, finding that the Commissioner failed to demonstrate sufficient anti-competitive effects and failed to present relevant markets grounded in commercial reality. 

In Secure, the Commissioner challenged Secure Energy Services’ acquisition of Tervita Corporation, alleging a substantial lessening of competition for the supply of oil and gas waste services in 143 markets. The Competition Tribunal agreed that there was a substantial lessening of competition in 136 of these 143 markets, and also concluded that Secure did not meet the requirements of the efficiencies defence, which Secure argued would outweigh any alleged anti-competitive harm.

Overall, the Commissioner has expressed a greater willingness to contest mergers to trial, whether seeking to block transactions outright or contesting portions of merger before or after closing. 

Most development in recent years has been in competition class actions. Since the Supreme Court of Canada’s 2013 trilogy of decisions in Pro-Sys, Sun-Rype and Infineon, and its 2019 decision in Godfrey, plaintiffs have had considerable success certifying private antitrust/competition class actions in Canada. It is thus noteworthy that a number of recent decisions suggest a growing judicial willingness to limit or dismiss proposed competition class actions at the certification stage or before certification through preliminary motions.

David v Loblaw involved allegations of a conspiracy among competitors in the packaged bread market. While the action concerning a conspiracy to fix the price of packaged bread was certified, the proposed common issues pertaining to umbrella purchasers (being individuals who purchased products from a non-conspirator who was able to and did raise the price of its non-packaged bread products as a result of the conspiracy) were not certified. In their decision, the certification judge made clear that the scope of potential umbrella claims does not extend beyond actual or potential suppliers in the same packaged bread market.

In Jensen, the Federal Court of Canada denied certification of a class action alleging a conspiracy in respect of specific computer chips. The Federal Court concluded that the criteria for certification was not met due to the claim’s vague, imprecise and general allegations and the absence of evidence establishing the existence of the alleged unlawful agreement. The Federal Court also discussed in detail the distinction between unlawful agreements between competitors under Section 45 of the Act, which represents a per se violation of the Act, and “conscious parallelism”, which refers to situations where competitors unilaterally adopt similar or identical business practices or pricing, due to rational and profit-maximising strategies based on observations of market trends and activities of competitors. The Federal Court was explicit in its reminder that “Canadian law has long recognized that ‘conscious parallelism’ (even if involving parallel conduct in oligopoly markets) falls short of conduct prohibited by Section 45 of the Act.”

In Lilleyman, the Federal Court of Canada denied certification of a class action alleging a conspiracy in respect of the price of canned tuna products in Canada. The Federal Court specifically noted that while the plaintiffs had established some basis in fact that certain defendants had perpetrated anti-competitive behaviour in the USA (especially as they had entered into plea bargain agreements with the US Department of Justice), there were notable differences between the canned tuna market in the USA and in Canada. Accordingly, the fact that anti-competitive behaviour had occurred in the USA did not provide some basis in fact for the existence of the alleged conspiracy in Canada.

For more information, see the Canada Trends and Developments article in this guide.

In 2023, the Act underwent significant changes and amendments. On 23 June 2022, Bill C-19, also known as the Budget Implementation Act, 2022, No 1 (BIA), included significant amendments to the Act which are all currently in effect.

The amendments expand and delineate the scope of prohibited conduct and increase financial penalties pertaining to abuse of dominance, criminal cartel and competitor collaborations, mergers, and deceptive marketing. The amendments also expand the evidence-gathering powers of the Bureau, and clarify the Bureau’s ability to obtain all the information the Bureau considers necessary to support its enforcement investigations, including information held by foreign affiliates.

Of note, no poach and wage fixing agreements between companies are now explicitly prohibited under the Act. These new provisions prohibit agreements between unaffiliated employers “to not solicit or hire each other’s employees” (ie, no poach agreements) and “to fix, maintain, decrease or control salaries, wages or terms and conditions of employment” (ie, wage-fixing agreements).

The Competition Act

The Act is the federal statute that prescribes and governs competition litigation in Canada. The key provisions include criminal offences in Part VI (Offences in Relation to Competition) and civil, reviewable matters in Parts VII.1 (Deceptive Marketing Practices) and VIII (Matters Reviewable by the Competition Tribunal).

The Act recognises dual public and private enforcement. The Competition Tribunal, the provincial Superior Courts and the Canadian Federal Court (the latter two being trial-level courts) may all hear matters arising from the Act.

Public Enforcement

The Act permits the Canadian Competition Bureau, an independent law enforcement agency responsible for the administration and enforcement of the Act, to review and investigate anti-competitive conduct. The Commissioner of the Bureau has the jurisdiction to commence proceedings for certain civil matters before the Tribunal or the Canadian Federal Court.

For criminal matters, the Commissioner, through the Bureau, investigates potential criminal anti-competitive conduct. However, the Attorney General of Canada, through the Public Prosecution Service of Canada, has the ultimate autonomy to decide whether to lay charges for such conduct.

Private Enforcement

Private right of enforcement

The private right of enforcement permits victims of criminal anti-competitive conduct to seek recovery for loss or damage suffered. In particular, Section 36(1) of the Act provides a statutory right of action for damages to any person who has suffered loss or damage as a result of conduct contrary to Part VI of the Act.

Pursuant to Section 36(1) of the Act, there are two types of conduct for which a plaintiff may recover:

• breaches of the criminal offences in the Act (Part VI of the Act); or
• a failure to comply with a tribunal order or order under the Act.

Criminal Offences

Plaintiffs may seek damages for “conduct that is contrary to Part VI of the Act”, which consists of 16 criminal offences. Most litigation under Section 36(1) has involved the following offences:

• conspiracy;
• foreign directions;
• bid-rigging;
• misleading advertising;
• deceptive telemarketing; and
• double ticketing.

Breaching an Order of a Tribunal

A plaintiff can also bring a claim against a defendant who has breached an order of a tribunal or other court under the Act. Tribunal orders are civil and arise from reviewable practices under Parts VIII and VII of the Act, while court orders may stem from reviewable practices or criminal offences. To date, there are no reported Section 36(1) proceedings arising from a breach of an order. Given that most matters investigated by the Bureau are settled and reflected in consent agreements that are binding (like court orders), it is possible that breaches of these agreements may give rise to future claims.

Private rights of action to Canada’s Competition Tribunal

Under Section 103.1 of the Act, a private person may also seek to bring a private right of action before the Tribunal against another private person. This private right of action is limited to five reviewable matters:

• refusal to deal (Section 75);
• price maintenance (Section 76);
• exclusive dealing (Section 77);
• tied selling (Section 77); and
• market restriction (Section 77).

The test for leave that the Tribunal will apply is twofold.

• For reviewable practices under Section 75 (refusal to deal) and Section 77 (exclusive dealing, tied selling and market restriction), the test is whether:
1. the application for leave is supported by sufficient credible evidence to give rise to a bona fide belief that the applicant is directly and substantially affected in its business by the relevant reviewable practice; and
2. the practice in question could be subject to an order under the section of the Act at issue (ie, under Section 75 or 77 of the Act).
• For reviewable conduct under Section 76 (price maintenance), the test is whether:
1. the application for leave is supported by sufficient credible evidence to give rise to a bona fide belief that the applicant is directly affected by the price maintenance; and
2. the practice in question could be subject to an order under Section 76 of the Act.

The Competition Tribunal is the specialised adjudicative tribunal for competition-related matters. Pursuant to Section 8(1) of the Competition Tribunal Act, the Tribunal only hears proceedings and orders remedies arising from the Act’s civil provisions in Part VIII of the Act (encompassing unilateral conduct, non-criminal agreements between competitors, and mergers) and Part VII.1 of the Act (encompassing deceptive marketing practices).

An application to the Tribunal will be heard by a panel consisting of between three to five judges, and one lay member, who are typically economists or have expertise in industrial organisation. Questions of law may only be determined by the judicial members sitting in those proceedings, whereas questions of fact or of mixed law and fact may be determined by all the members of the panel.

The Bureau, as a law enforcement agency, lacks the authority to adjudicate its own disputes and instead must pursue enforcement actions in either the Competition Tribunal or the courts. For civil matters, the Commissioner, through the Bureau, has the dual role of investigator of potential anti-competitive conduct and prosecutor before the Tribunal and the courts.

Decisions by another state’s national competition authority (NCA) are not binding on Canadian courts or the Tribunal, but may be considered.

The Bureau does not have any special standing to intervene in private competition litigation before a provincial Superior Court or Canadian Federal Court. Similar to any other private person or entity, the Bureau must seek leave (ie, permission) from the respective court in order to intervene. The rules and procedures pertaining to seeking leave and intervening in such proceedings are specific to each court and outlined in the applicable provincial or federal rules of civil procedure.

Section 103.2 of the Act does provide the right for the Bureau to intervene in any application commenced by a private litigant before the Tribunal.

In Canada, all civil proceedings operate on a balance-of-probabilities standard of proof, meaning where an act is more likely to have happened than not. In other words, a plaintiff must prove that the facts and evidence tip the scale in their favour, even if there is only a 51% probability that they are correct.

The plaintiff has the burden of proof and must prove, on a balance of probabilities, all the elements of the alleged offence, including the actus reus and mens rea, and the damage that was caused by the offence.

Section 36: Evidentiary Presumption

Section 36 of the Act contains an evidentiary presumption that helps parties who have suffered loss due to anti-competitive conduct and attempts to avoid the duplication of evidence between criminal and civil proceedings. Specifically, Section 36(2) creates a rebuttable presumption that the Act was breached if the defendant was convicted in a criminal proceeding for that breach. Section 36(2) permits a litigant to use the record of proceedings in any court in which the defendant was convicted as proof that the defendant breached the Act, and any evidence about the effect of those acts on the plaintiff may be introduced as evidence.

Typically, this evidence would be a statement of admissions and certificate of conviction, or the decision and reasons for the criminal conviction (or both). For confidentiality reasons, it would not typically include the Bureau’s investigative file. Where the defendant has not previously been convicted, the plaintiff must prove the offence alleged on the civil standard of a balance of probabilities.

In the 2013 trilogy of decisions in Pro-Sys, Sun-Rype and Infineon, the Supreme Court of Canada ruled that “indirect purchasers” (that is, customers who did not purchase products directly from the alleged price-fixer but indirectly from a party further down the chain of distribution) have a cause of action and are not foreclosed from claiming losses that have been passed on to them.

The duration of competition litigation in Canada, whether before the Competition Tribunal or the courts, will vary widely. Most private competition litigation, especially class proceedings, will settle before trial. However, if they do not, litigation will typically go on for years, as parties exchange evidence, retain experts, dispute certification, and bring motions (such as summary judgment) before trial.

Private competition litigation is not automatically suspended (or “stayed”) during a parallel investigation by the Bureau or an application before the Tribunal. Private litigants may seek stays of competition litigation for reasons common to most civil litigation, such as the commencement of parallel civil or criminal proceedings.

Class actions are predominantly statute-based in Canada and all ten Canadian provinces have enacted class action legislation. Some jurisdictions in Canada have “opt-in” regimes (the vast majority), while others have “opt-out” regimes. Class actions may be brought on behalf of indirect purchasers as well as direct purchasers. For more detail, see 2.5 Direct and Indirect Purchasers.

In Canada, the court plays a gatekeeper role in class action lawsuits. Every class action must be certified (or “authorised” in Quebec) before it can proceed on the merits. The plaintiff must bring a motion for certification (or authorisation), and the court then decides whether to permit the plaintiff to bring the action on behalf of the proposed class. Certification is a screening device that evaluates whether the procedure is appropriate for the claim, rather than evaluating the merits of the claim itself. The evidentiary standard is low, and courts apply a flexible and generous approach that strikes a balance between efficiency and fairness.

In Ontario (and other common law provinces), the plaintiff must establish five elements on a certification motion. The plaintiff must demonstrate “some basis in fact” for each element other than the first requirement: the existence of a cause of action. “Some basis in fact” is a lower standard than the civil balance-of-probabilities standard.

In Quebec, the relevant test is called “authorisation” and differs slightly from the certification test.

Unlike in other civil proceedings, the court must approve all class action settlements. To grant approval of a class action settlement, the court must find that the settlement is fair, reasonable and in the best interests of all class members. In determining whether to approve a class action settlement, the court will consider factors such as:

• the likelihood of recovery or success if the case were litigated;
• the amount and nature of discovery or investigation;
• the terms and conditions of the settlement;
• the recommendations and experience of counsel;
• the future expense and likely duration of litigation;
• the recommendations of neutral parties or experts;
• the number and nature of objections from class members;
• the presence of good-faith bargaining; and
• the absence of collusion.

Settlement distribution is the responsibility of the plaintiff’s counsel, who must decide how to distribute between direct and indirect purchasers and obtain the court’s approval on the protocol. The same protocol exists for awards and settlements in that the court may order direct payment or that it be paid into court.

The Competition Tribunal

Pursuant to Section 9(4) and 9(5) of the Competition Tribunal Act, a party may seek to dispose of an application by way of a motion for summary disposition (also known as summary judgment).

A judicial member of the Competition Tribunal may:

• dismiss the application in whole or in part if the judicial member concludes that there is no genuine basis for the application; or
• allow the application in whole or in part if the judicial member is satisfied that there is no genuine basis for the response to the application.

Provincial Superior and Federal Courts

With the exception of Quebec, summary judgment motions are available to parties in provincial Superior Courts or the Canadian Federal Court. The procedure and rules pertaining to summary judgment motions are subject to the respective provincial or federal rules of civil procedure.

In Ontario and other common law provinces, the courts may dismiss an action where the court is satisfied that there is no “genuine issue requiring a trial” with respect to a claim or defence. This is the case where the evidence presented by the parties:

• allows the court to make the necessary findings of fact;
• allows the court to apply the law to the facts; and
• is a proportionate, more expeditious, and less expensive means of achieving a just result.

If the court is satisfied that these three elements are satisfied, summary judgment will be appropriate.

For class actions, unless a party is contesting jurisdiction, Canadian courts will rarely permit motions prior to certification, such as a motion to dismiss or a motion to strike.

The Competition Tribunal

For more information, see 2.1 Legal Basis for a Claim and 2.2 Specialist Courts.

Section 36 Claims

A plaintiff must bring its claim before a court of competent jurisdiction. In private competition litigation, plaintiffs often assert common law or equitable claims (or both) in conjunction with statutory claims under the Act. Therefore, the provincial Superior Court (or its equivalent) is often the preferred court as these courts have inherent jurisdiction to hear any matter unassigned to another court, including common law and equitable claims. The Canadian Federal Court has jurisdiction to hear statutory claims but does not have jurisdiction to award damages for common law or equitable claims.

A Canadian court will apply a three-part test to determine whether it can assume jurisdiction over a foreign defendant, as follows.

• Does the court have presumptive jurisdiction over the foreign defendant?
• Can the court’s presumptive jurisdiction be rebutted?
• If the court has presumptive jurisdiction that has not been rebutted, should the court decline to exercise its jurisdiction in favour of a clearly more appropriate forum?

The party asserting jurisdiction (typically the plaintiff) has the burden of establishing presumptive jurisdiction. Courts will find presumptive jurisdiction over a foreign defendant if there is a “real and substantial connection” between the foreign defendant and the jurisdiction in which the action is commenced. The Supreme Court of Canada has, to date, confirmed four presumptive connecting factors for establishing a “real and substantial connection”:

• the defendant is domiciled or resident in the province;
• the defendant carries on business in the province;
• the tort was committed in the province; and
• a contract connected with the dispute was made in the province.

Class Actions

Canadian courts are willing to certify national classes. However, Canada does not have any formal, national system for controlling multi-jurisdictional class actions. Consequently, competition class actions involving the same allegations and the same defendants are often commenced in multiple provinces – frequently in Ontario, British Columbia and Quebec.

Notwithstanding the prospect of a multiplicity of proceedings across provinces, plaintiff firms often reach agreements or form consortiums to prosecute these claims. Where multiple proceedings are being prosecuted by different firms across provinces, defendants may seek to stay duplicative proceedings.

Some provinces also have codified an approach to dealing with multi-jurisdictional class actions in recent years, including Alberta, British Columbia and Saskatchewan.

In Ontario, the Class Proceedings Act was amended to introduce new provisions enabling judges to more effectively manage parallel and overlapping multi-jurisdictional class proceedings. These have harmonised Ontario’s class actions regime with those provinces. The amended legislation includes a requirement that judges consider whether to refuse certification on the basis that it would be preferable for all, or some, class members’ claims to be resolved in a multi-jurisdictional class proceeding commenced outside Ontario. The court will be able to stay an Ontario proceeding, based on this factor, prior to the certification hearing on a motion by either a party or a class member.

Where multiple plaintiff firms commence duplicative class proceedings in the same province and cannot reach agreement, carriage of the action is decided on a contested carriage motion. The test for such motion is what resolution is in the best interests of all putative class members while at the same time being fair to the defendants.

Section 36 Claims

A litigant has two years to bring a Section 36 claim. The Act prescribes a two-year limitation period of the later of:

• a date on which the anti-competitive conduct was carried out or the order was breached; or
• the final disposition of any criminal proceedings relating thereto.

The commencement of criminal proceedings and class proceedings related to the alleged breach suspend the limitation period, as does the defendant’s fraudulent concealment of the breach where it would be unconscionable for the defendant to rely on the advantage gained by having concealed the existence of a cause of action.

The Supreme Court of Canada has determined that the principle of “discoverability” applies to Section 36 claims. Accordingly, the limitation period for Section 36 claims does not begin to run until the plaintiff discovers the material facts giving rise to the cause of action, or ought to have discovered them by the exercise of reasonable diligence.

Private Rights of Action to the Competition Tribunal

Pursuant to Section 103.1(8) of the Act, a private person seeking leave of the Competition Tribunal must commence litigation no more than one year after the practice or conduct that is the subject of the application has ceased.

The Competition Tribunal

The discovery process before the Competition Tribunal is similar but not akin to the discovery process in civil proceedings before the courts. Discovery in proceedings before the Tribunal is a two-step process, beginning with documentary discovery and followed by examinations for discovery.

Documentary discovery

The Competition Tribunal Rules impose two mutual documentary discovery obligations:

• first, each party is required to disclose (by way of service of a sworn affidavit of documents) the existence of all documents relevant to any matter in issue that are or were in the possession, power or control of the party or intervenor; and
• second, each party is required to produce non-privileged documents listed in the affidavit of documents.

Examination for discovery

The Competition Tribunal Rules provide that examinations for discovery occur in an application as of right. Unlike civil rules of procedure before the courts, the Competition Tribunal Rules do not prescribe any ancillary rules regarding the conducting of the examination for discovery. The Competition Tribunal Rules afford the tribunal the discretion to determine the conducting of the examination for discovery for each application before it, including with respect to the timing, duration, scope and form of the examination for discovery as well as the appropriate person(s) to be examined for discovery.

Provincial Superior and Federal Courts

The exchange of evidence between parties in provincial Superior and Federal Courts is governed by their respective rules of civil procedure.

Typically, documentary discovery occurs first, whereby parties are required to disclose to the opposing side every document in their power, possession or control that is relevant to the lawsuit. This is then followed by examination for discovery. Rules pertaining to the conducting of the examination for discovery are set out by each province’s rules and the federal rules of civil procedure.

Documents may be withheld on the basis that they are protected by legal professional privilege, which falls into two broad categories:

• solicitor-client privilege; and
• litigation privilege.

Solicitor-Client Privilege

Solicitor-client privilege protects the advisory relationship between the lawyer and the client and protects such communications from disclosure. Solicitor-client privilege applies to communications between a solicitor and client, involving the seeking or giving of legal advice, and where the communication is intended to be confidential by the parties.

Litigation Privilege

Litigation privilege is focused directly on the process of litigation. It seeks to provide a “zone of privacy” to facilitate investigation and preparation of a case for trial in an adversarial process. Accordingly, unlike solicitor-client privilege, which seeks to protect the confidential relationship between lawyer and client, litigation privilege seeks to facilitate the adversarial process. For litigation privilege to apply, the communication must have been created for the dominant or sole purpose of litigation, either actual or contemplated. Litigation privilege may not apply to communication where litigation is ancillary or is not more than a suspicion.

The Bureau has immunity and leniency programmes. An immunity applicant is eligible for full immunity from prosecution; whereas a leniency applicant that is not eligible for a grant of immunity is eligible for lenient treatment in sentencing. 

Leniency Agreements

Immunity and leniency agreements with the Bureau are kept confidential.

The Bureau treats the identities of immunity and leniency applicants or any information provided by the applicants as confidential, except where:

• disclosure is required by law;
• disclosure is necessary to obtain or maintain the validity of a judicial authorisation for the exercise of investigative powers;
• disclosure is for the purpose of securing the assistance of a Canadian law enforcement agency in the exercise of investigative powers;
• the party has agreed to disclosure;
• there has been public disclosure by the party;
• disclosure is necessary to prevent the commission of a serious criminal offence; or
• in the case of information other than the immunity or leniency applicant’s identity, where disclosure of such information is for the purpose of the administration or enforcement of the Act.

Further, the Bureau will disclose the information provided by the leniency applicant (but not the applicant’s identity) for the purposes of the administration or enforcement of the Act.

Settlement Agreements

Settlement agreements with the Bureau will generally be kept confidential, though the degree to which this would occur is determined on agreement between the Bureau and applicable parties.

Any information or communication that is submitted to the Bureau for the purposes of settlement discussions is confidential and is also protected by “settlement privilege”. Settlement privilege protects from disclosure documents or communications created for the intended purpose of settlement or settlement negotiations.

The Competition Tribunal

Any party may rely on, and compel testimony from, a fact witness at a hearing. Fact witnesses are examined in chief in the form of written witness statements served before the commencement of the hearing. At the hearing, fact witnesses may only be examined in chief for the purpose of summarising or highlighting the evidence contained in the witness statement.

Fact witnesses may be cross-examined and, thereafter, re-examined to respond to issues raised during the cross-examination. Furthermore, the Tribunal can and frequently does question the witness.

Provincial Superior and Federal Courts

Parties in the provincial Superior Court or the Canadian Federal Court may rely on, and compel testimony from, fact witnesses both before and during trial. The rules pertaining to the calling of a fact witness are subject to the applicable provincial or federal rules of civil procedure.

The general rule is that fact witnesses provide evidence through an examination in chief at trial. In some limited circumstances, fact witnesses may be examined in chief prior to trial and with the transcript used as evidence at trial, or may provide evidence via a sworn affidavit. In any case, fact witnesses may be subsequently cross-examined and, thereafter, re-examined to respond to issues raised during the cross-examination.

Expert witnesses are commonly used in any type of competition litigation in Canada. Owing to the technical complexity of competition-related matters, expert witnesses play a significant role in applications before the Competition Tribunal or proceedings before the courts.

The Competition Tribunal

Parties may call one or more experts to provide opinion evidence at a hearing. A party that seeks to introduce the evidence of an expert witness at the hearing must serve the expert witness’s expert report on each other party and on any intervenors in advance of the hearing. The Competition Tribunal Rules also provide that the Tribunal may appoint one or more experts.

At the hearing, the expert witness may be examined in chief for the purpose of summarising or highlighting the evidence contained in the report. Accordingly, unlike litigation before civil courts, the expert witness’s report is effectively the expert witness’s evidence in chief at the hearing. The expert witness must be available for cross-examination at the hearing in order for their report to be received in evidence.

The Tribunal may require that some or all of the expert witnesses in an application before it testify as a panel at any time that the Tribunal may determine. The Tribunal may direct the manner in which the panel will testify, and the parties may cross-examine or re-examine the panel witnesses.

Provincial Superior and Federal Courts

The rules pertaining to the calling of an expert witness are subject to the applicable provincial or federal rules of civil procedure. Generally speaking, parties may call one or more experts to provide opinion evidence at a hearing. Expert evidence will generally take the form of a written report prepared and signed by the expert (which must be provided to the opposing party prior to trial) as well as subsequent in-person testimony at trial. The expert witness may be cross-examined and, thereafter, re-examined to respond to issues raised during the cross-examination.

The Competition Tribunal

The Competition Tribunal only has jurisdiction to order a defendant to cease the relevant anti-competitive conduct. It cannot order monetary awards or damages.

Section 36 Action

The Act provides that a private litigant can recover an “amount equal to the loss or damage”, which is full and fair compensation calculated to place the plaintiff in the same position it would have been in had the conduct not occurred.

Plaintiffs cannot recover equitable remedies or punitive, general or aggravated damages under Section 36 of the Competition Act.

Class Proceeding

For calculating damages in a class proceeding, the traditional approach is to assess the difference between the alleged cartel prices and what the prices would have been but for the overcharge. Once all other issues of fact and law have been decided (other than the assessment of damages), class action legislation provides that the court may determine the amount of monetary damage caused by the wrongdoing on an aggregate (global) basis, without proof of the specific amount of loss by each class member.

The defendant would pay the aggregate amount and the award would subsequently be divided among class members. However, in order for individual class members to participate in an award of damages for a harm-based cause of action, each class member has to prove that they actually suffered some loss.

Plaintiffs may recover equitable remedies or punitive, general or aggravated damages in a class proceeding.

In the 2013 trilogy of decisions in Pro-Sys, Sun-Rype and Infineon, the Supreme Court ruled that the pass-on defence is not available in Canada.

In Canada, pre- and post-judgment interest is generally payable on damages. The rate for pre- and post-judgment interest is either determined on agreement between the parties, or subject to the rates set out in the respective rules of civil procedure applicable to the provincial Superior Court or the Canadian Federal Court.

The general rule in Canada is that joint defendants are held jointly and severally liable for each other’s conduct in tort, in proportionate share to their liability level as determined by the court. However, proportionate liability in a price-fixing context has not been fully litigated in Canada, in particular regarding the basis for allocating liability between colluding defendants.

The Competition Tribunal

There is no procedure for bringing contribution proceedings against a third party as regards applications before the Competition Tribunal.

Provincial Superior and Federal Courts

The specific procedure for bringing contribution proceedings, otherwise known as third-party claims, is subject to the applicable provincial and federal rules of civil procedure.

Generally, the defendants to a claim must commence a third-party claim against a third party shortly after issuing their defence, or at a later date with leave of the court. The general two-year limitation period applies to third-party claims, but commences on the date the defendant was served with the statement of claim.

Injunctive relief is available to parties on similar bases as in other forms of civil litigation. The specific procedure and rules pertaining to injunctive relief are subject to the applicable provincial and federal rules of civil procedure.

The test for obtaining injunctive relief differs depending on the type of relief sought. Generally, an applicant must meet the following three criteria.

• There is a serious question to be tried.
• The applicant must demonstrate that irreparable harm will result if the relief is not granted. Specifically, the damages must be of the type that cannot be quantified in monetary terms or cured because the party seeking an injunction would not be able to collect damages from the respondent at the time of a decision on the merits (ie, trial).
• The applicant must show that the balance of convenience favours granting the injunction.

For certain types of injunctions, a more difficult merits standard, whereby the applicant must show a strong prima facie case that it will succeed at trial, is applied in place of the first “serious question to be tried” criterion. These exceptions are:

• where the pre-trial injunction is, in effect, a final determination of the merits;
• mandatory injunctions, being orders that require the respondent to perform a certain act;
• where the issue to be decided is purely a question of law;
• where there are no material facts in dispute;
• Mareva injunctions, being orders that restrain a party in current or pending litigation from removing or dissipating assets; and
• Anton Piller injunctions, which require the respondent to give the applicant’s representatives access to the respondent’s premises to inspect and remove documents and items specified in the order.

In all cases, the applicant must give an undertaking as to damages, as the party seeking the injunction must promise to abide by any damages award to an enjoined party that suffers a loss because of an injunction ultimately found to have been wrongly granted.

Ex Parte Motions

Parties may bring motions for injunctive relief without providing notice to the other parties. These are referred to as ex parte motions. Interlocutory injunctions or mandatory orders obtained on ex parte motions are sometimes referred to as interim injunctions as the duration of the injunction is limited (eg, up to ten days in Ontario).

Courts may grant ex parte motions in two circumstances, whereby the applicant can demonstrate the requisite “extraordinary urgency”:

• where there is good reason to believe that the defendants, if given notice, will act to frustrate the process of justice before the motion can be decided; and
• where there is simply not the time and/or means to provide notice.

Parties seeking an ex parte motion must make full and fair disclosure of all matters in their knowledge which are reasonably material for the judge to know about. Failure to comply is sufficient grounds for setting aside any injunctive order obtained on the motion.

Special Injunctions for the Commissioner

The Commissioner also has special injunctive powers. For merger review and other reviewable matters, the Commissioner can seek an interim order to prevent irreparable harm pending the disposition of the Commissioner’s contested application. In exceptional circumstances, the Commissioner can seek a temporary order pending the completion of the Commissioner’s investigation. 

Alternative dispute resolution is available in competition litigation on similar bases as in other forms of civil litigation. Courts cannot compel parties to arbitrate their disputes in the absence of an agreement between them to do so, but courts will rigorously enforce arbitration agreements according to their terms.

Parties to an application to the Competition Tribunal have the option of participating in a mediation with a judicial member of the Tribunal, or any other mediator, for the purpose of resolving a proceeding or any outstanding issues in the proceeding.

Class Actions

Subject to court approval, litigation funding, also known as third-party funding (TPF), may be available for competition class actions in Canada. Third-party funding agreements (TPFA) have frequently been approved by courts in Ontario.

In Ontario, the Class Proceedings Act 2002 provides that a court will not approve a TPFA except where it is satisfied that:

• the agreement is fair and reasonable;
• the agreement does not impair the ability of the representative plaintiff to instruct counsel and control the litigation; and
• the funder will be able to satisfy adverse cost awards to the extent it has agreed to provide an indemnity for such risks.

TPFAs have also been approved by the Federal Court of Canada. The general test for approving a TPFA in the Federal Court is whether it would be in the interests of justice to do so. In assessing whether the test is met, the Federal Court will consider the following questions.

• Have the basic procedural and evidentiary requirements for the Court’s consideration of the TPSA been satisfied?
• Is third-party funding necessary to facilitate meaningful access to justice?
• Is the TPSA champertous?
• Is the TPSA fair and reasonable to current and prospective class members as a group?
• Will the TPSA make a meaningful contribution to deterring wrongdoing?
• Does the TPSA interfere with the solicitor-client relationship, counsel’s duty to the class members, or the carriage of the proceeding?
• Does the TPSA protect relevant legal privileges and the confidentiality of the parties’ information?
• Does the TPSA protect legitimate interests of the defendants?

A negative response to any of the questions listed above can be fatal to the approval of the TPSA.

Applications Before the Competition Tribunal

The Competition Tribunal has the discretionary power to award costs on a final or interim basis. The Tribunal has full discretionary power over the amount and allocation of costs, and the determination of who will pay them and to whom they will be paid.

Section 36 Claims

Typically, in Canada the unsuccessful party pays the successful party’s costs.

Plaintiffs advancing Section 36 claims can also seek recovery of damages for the full cost of any investigation. The claim of investigation costs must be necessary, reasonable and based on evidence. These are distinct from court costs, which are determined based on normal cost rules that typically award the successful party a portion of their legal costs. Pre- and post-judgment interest is also awarded on damages under provincial statutes.

Class Actions

The traditional loser-pays model has been modified by some class action legislation in Canada for certification motions. In British Columbia, Manitoba, Newfoundland and Labrador, as well as in the Federal Court, the court will not award costs on a certification motion except in narrow circumstances such as vexatious, frivolous or abusive conduct. In contrast, in Ontario, Alberta, Saskatchewan, New Brunswick and Nova Scotia, costs can be awarded on certification motions. Overall, a practice of no costs is developing.

Decisions of the Competition Tribunal

Section 13 of the Competition Tribunal Act provides that decisions by the Tribunal may be appealed to the Federal Court of Appeal. Appeals concern questions of law or questions of mixed law and fact, but appeals solely concerning a question of fact may be made only with leave of the Federal Court of Appeal.

Decisions of the Provincial Superior and Federal Courts

Judgments of the provincial Superior Court and the Canadian Federal Court may be appealed to the respective provincial or federal appellate court. Appeals may only concern questions of law or questions of mixed law and fact. A further appeal from the respective appellate court to the Supreme Court of Canada is possible, provided that leave is granted by the Supreme Court.