The Power of Perspectives

The Canadian Bar Association

Kim Covert

Abuse of dominance guidelines need work

June 4 2018 4 June 2018

 

It’s not always easy to distinguish aggressive-but-pro-competitive business practices from those that are anti-competitive. That’s why the CBA’s Competition Law Section welcomes the Competition Bureau’s draft Abuse of Dominance Enforcement Guidelines as an aid to decision-making in the business community.

That said, the Section says the guidelines could be improved to be more helpful.

“The guidelines sometimes take an inconsistent or expansive view of existing Canadian abuse of dominance jurisprudence,” the Section says.

“Where the Bureau interprets existing jurisprudence in a specific manner, it would be helpful, at a minimum, for the Bureau to state that this perspective is the Bureau’s interpretation.  [In some areas], it also creates significant uncertainty and unnecessarily increases the risk of Canadian competition law diverging from international norms. For example, the section discussing market power contains a number of references that are either vague or inconsistent with existing jurisprudence and as a result, pose a serious risk of chilling legitimate competitive conduct.”

The guidelines often focus on exceptional or novel situations, the Section says, when “it would be preferable for them to focus primarily on providing general guidance” and then reference more novel or exceptional approaches on a secondary basis. Using the exceptional instead of the typical as the example risks creating confusion.

The Section notes that the guidelines “frequently and extensively” reference the Competition Tribunal and Federal Court of Appeal decisions in the Toronto Real Estate Board case. “While these decisions are important for the development of Canadian jurisprudence, earlier cases continue to offer valid and useful guidance, particularly where they deal with more common situations or conduct not at issue in the TREB case,” the Section says. “The guidelines would offer broader guidance if they also reflected earlier Canadian abuse of dominance jurisprudence.”

The Section makes a number of recommendations for areas where language should be clarified, expanded upon, or amended, particularly in areas where the guidelines are not supported by existing jurisprudence.

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