The Competition Act
The Competition Act governs most business conduct in Canada. As described by the Canadian Competition Bureau: The Act “contains both criminal and civil provisions aimed at preventing anti-competitive practices in the marketplace. Its purpose is to maintain and encourage competition in Canada in order to:
- promote the efficiency and adaptability of the Canadian economy
- expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada
- ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy
- provide consumers with competitive prices and product choices.”
The Competition Tribunal
McMillan LLP provides this description of the functioning of the Competition Tribunal:
The Tribunal consists of both judicial and lay members. As such, the Tribunal’s composition endows it with considerable relevant expertise, although its role and structure is purely adjudicative. The mixed composition seeks to ensure that the Tribunal will include the critical components of judicial independence, impartiality and fairness, as well as specialized knowledge of business and economics. The Tribunal sits in panels of at least three, and no more than five, members to consider any application. The Chairman of the Tribunal is selected from among the judicial members and supervises the Tribunal’s work.
The Tribunal possesses neither investigatory nor independent power to consider matters. In most circumstances, the Commissioner must initiate an application for an order of the Tribunal on matters subject to determination. However, private parties have certain limited rights to initiate proceedings regarding several reviewable practices (discussed below). As well, an interested party may, with leave of the Tribunal, intervene in a Tribunal proceeding in respect of matters relevant to the proceeding that affect that person. The Tribunal may grant leave where: (a) the matter alleged to affect the interested party is legitimately within the scope of the Tribunal’s consideration or is a matter sufficiently relevant to the Tribunal’s mandate; (b) the interested party is directly affected by that matter; (c) all representations made by the interested party are relevant to a matter specifically raised by the Commissioner or the private party who initiated the proceeding; and (d) the interested party brings to the Tribunal a unique or distinct perspective that will assist the Tribunal in deciding the matters before it.
Although the Competition Tribunal Act requires that proceedings must be handled as “informally and expeditiously as the circumstances and considerations of fairness permit”, the Tribunal has tended to adopt a relatively formal manner, appearing much like a regular court. A typical contested proceeding will require as much as twelve months for final resolution. Even consent proceedings may be lengthy, but the Tribunal increasingly tends to insist on tight time limits for the interlocutory stages of an application.