Commissioner of Competition V. Visa and MasterCard

The Competition Tribunal dismissed the case brought by the competition commissioner (commissioner) against Visa's and Master-Card's honour-all-cards and no-surcharge rules and MasterCard's no-discrimination rule. This was the first time the tribunal considered the amended price maintenance provision in the Competition Act.

After a six-week hearing, the tribunal dismissed the commissioner's application in its entirety. The tribunal found that the price maintenance provision of the Competition Act did not apply to these rules and dismissed the commissioner's application. However, the tribunal proceeded to conduct an alternative analysis in case it was wrong in its interpretation of the price maintenance provision. In this alternative analysis, the tribunal found that, through the implementation of the no-surcharge rule, each of Visa and MasterCard indirectly influenced upward the prices paid by merchants for credit card services and that the no-surcharge rule suppressed price competition and had an adverse effect on competition in the market for the supply of credit card network services to acquirers. Nevertheless, the tribunal found that even if all the conditions of the price maintenance section were satisfied, it would have exercised its discretion not to make an order prohibiting these rules, noting that a regulatory solution was more appropriate in the exceptional circumstances of this case. The tribunal declined to award costs on the basis that the commissioner had advanced a case that should have been brought and that was in the public interest.

MasterCard was represented internally by Noah Hanft, Mike McEneney, Carl Munson, Jim Masterson, Andrea Cotroneo and Cameron Clark; and by McMillan LLP's James Musgrove, Jeffrey Simpson, David Kent, Adam Chisholm, Brent McPherson, Dan Edmondstone, Janine MacNeil, Brett Harrison, Devin Anderson, Stephanie White and Jonathan O'Hara.

Visa was represented by its Josh Floum, Adam Eaton and Amy Gaskin; and Blake, Cassels & Graydon LLP's Robert Kwinter, Randall Hofley, Navin Joneja, Cassandra Brown, Dan Stern, Kate Manning, Michelle Rosenstock, Kiran Patel and Anne Glover.

The commissioner was represented by Kent Thomson, Adam Fanaki, Davit Akman and Elisa Kearney of Davies Ward Phillips & Vineberg LLP and the department of justice's William Miller and Roger Nassrallah.

The intervenor, Canada Banker's Association, was represented by Osler, Hoskin & Harcourt LLP's Mahmud Jamal and Michelle Lally.

The intervenor, TD Bank, was represented by McCarthy Tétrault LLP's Paul Morrison, Christine Lonsdale and Adam Ship.