CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
Probative Value of NCA Decisions Please see 2.3 Impact of Competition Authorities . 2.5 Pass-On Defence The “Pass-on Defence” Does Not Exist in Canadian Law Canadian law does not recognise a pass-on defence in antitrust court actions. A defendant cannot avoid liability by arguing that a claimant passed all or part of an alleged overcharge on to its own customers and therefore suffered no loss. The Supreme Court of Can - ada rejected the pass-on defence principally because of the evidentiary difficulties associated with tracing overcharges through complex distribution chains. At the same time, the Supreme Court has recognised that both direct and indirect purchasers may seek damages under Section 36 of the Competition Act. In the 2013 trilogy of Pro - Sys Consultants Ltd . v Micro- soft Corporation , Sun - Rype Products Ltd . v Archer Daniels Midland Company and Infineon Technologies AG v Option consommateurs , the Court confirmed that indirect purchasers who ultimately bear an over - charge may have standing to claim damages. Accordingly, there is generally no burden on a claim - ant to disprove pass-on as a defence. Rather, the plaintiff must establish, on a balance of probabilities, that it suffered loss or damage caused by the alleged contravention. Where an indirect purchaser brings a claim, it bears the burden of proving that the over - charge was passed through the distribution chain and resulted in compensable harm. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Antitrust Limitation Periods Limitation periods under the Competition Act vary depending on the type of proceeding. For private damages actions under Section 36, a claimant must generally commence an action within two years of the impugned conduct becoming reason - ably discoverable to the claimants or, if later, within two years of the final disposition of any related criminal
proceedings. In Pioneer Corp . v Godfrey , the Supreme Court of Canada confirmed that this limitation period is subject to the discoverability principle, meaning that time does not begin to run until the material facts giv - ing rise to the claim are discovered, or ought reason - ably to have been discovered. In addition, the Ontario Court of Appeal in M . M . Mura Holdings Inc . v Archer Daniels Midland Company confirmed that the limita - tion period is postponed until the conclusion of any related criminal prosecution. For merger review proceedings under Section 92, the Commissioner may challenge a completed merger within one year where the transaction was subject to mandatory notification or an advance ruling certifi - cate request, and within three years for non-notifiable mergers. Other civil reviewable matters are subject to their own statutory limitation periods. For example, applications relating to anti-competitive agreements under Section 90.1 must generally be brought within three years after the agreement has terminated, while abuse of domi - nance applications must be commenced within three years after the impugned conduct has ceased. Impact of Competition Bureau Decisions on Limitation Periods Competition Bureau investigations and civil enforce - ment proceedings do not generally suspend or extend limitation periods. However, where conduct results in criminal proceedings referred to the Attorney Gener - al, Section 36 expressly postpones the commence - ment of the civil limitation period until the underlying criminal proceedings have been finally disposed of. In practice, Competition Bureau investigations, set - tlements and published enforcement decisions may also assist private plaintiffs in discovering the material facts underlying a claim, which may affect the appli - cation of the discoverability principle established in Pioneer Corp . v Godfrey . 3.2 Typical Length of Private Antitrust Litigation Timing and Pace of Private Antitrust Litigation Private antitrust litigation in Canada can be lengthy, particularly where claims are pursued through class proceedings. There is no single average duration, as
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