CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
intermediaries but allegedly bore the effects of an unlawful overcharge passed down the supply chain. The courts have also recognised claims by so-called umbrella purchasers, namely purchasers who bought from firms that were not members of the alleged cartel but who claim that the cartel’s conduct inflated prices across the broader market. Private Applications to the Competition Tribunal Under Section 103.1 A third avenue is the private application regime before the Competition Tribunal under Section 103.1. Recent amendments have expanded access to the Tribunal. With the notable exception of mergers, private parties may now seek leave to pursue most civil reviewable practices. The Tribunal may refuse leave where the matter is already under investigation by the Commissioner, where the Commissioner has settled the matter and discontinued a related inquiry, where the matter has already been the subject of an application by the Commissioner, or where the conduct is protected by an environmental collaboration certificate issued under the Competition Act. A party seeking leave must serve the Commissioner of Competition with a certified copy of its application. Within 48 hours of service, the Commissioner must certify to the Tribunal whether the matter is already the subject of an inquiry by the Competition Bureau or whether a previous inquiry was discontinued as a result of a settlement. In rare cases, the Commissioner may commence an inquiry during that 48-hour period, in which case the certification may prevent the Tri - bunal from considering the private leave application. Leave requirements vary according to the provision invoked. For abuse of dominance, refusal to deal, exclusive dealing, tied selling and market restric - tion cases, the applicant must demonstrate that the impugned conduct directly and substantially affected its business, or that granting leave would be in the public interest. For price maintenance, direct impact on the applicant’s business is sufficient. For decep - tive marketing practices, leave may be granted where
the Tribunal is satisfied that the application is in the public interest. The Commissioner may intervene at any stage of the proceeding and provide submissions regarding the issues raised by the application, including whether the Commissioner supports or opposes the granting of leave. Further, the Commissioner’s involvement may continue after a private access proceeding has been resolved. Where the parties enter into an agreement that disposes of the application, including a consent agreement registered with the Tribunal, copies of the agreement must be served on the Commissioner. The Commissioner may apply to the Tribunal to vary or rescind an agreement resolving a private access application. These mechanisms reflect the continuing supervisory role of the Commissioner and are intend - ed to ensure that private enforcement complements, rather than conflicts with, the public enforcement of the Competition Act. 2.2 Courts Jurisdiction Over Antitrust Proceedings Canada’s antitrust cases are allocated among sev - eral courts and adjudicative bodies depending on the nature of the proceeding. • Private damages actions and competition class proceedings proceed before provincial superior courts or the Federal Court. • Criminal matters under the Competition Act, including cartel conduct and bid-rigging offences, may be heard by provincial superior courts or the Federal Court, depending on the proceeding. • Most civil reviewable matters, including mergers, abuse of dominance and competitor collabora - tions, are heard by the Competition Tribunal, a specialised adjudicative body with expertise in competition law and economics. Appeals from the Competition Tribunal are heard by the Federal Court of Appeal. The Federal Court has jurisdiction over applications for judicial review of certain competition-related deci - sions. Competition Tribunal orders are enforceable through contempt proceedings in court. In Chrysler Canada
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