CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
try specialists and other experts to address issues such as market definition, market power, competitive effects, damages, pass-on, overcharge methodolo - gies and class-wide harm. Expert opinion evidence is admissible where it satisfies the requirements estab - lished by the Supreme Court of Canada in R v Mohan and subsequent jurisprudence, including the expert’s duty to provide independent and impartial assistance to the adjudicator. Provincial Superior Courts In provincial superior courts, the procedure for expert witnesses is governed by the applicable rules of civil procedure. In Ontario, parties intending to call an expert witness must serve an expert report complying with Rule 53.03 of the Rules of Civil Procedure. The report must set out, among other things, the expert’s qualifications, instructions received, assumptions made, opinions expressed and the reasons supporting those opinions. Experts may be examined and cross- examined at trial in the same manner as other witness - es, although courts exercise an important gatekeep - ing function to determine the admissibility and scope of expert evidence. In criminal antitrust proceedings, expert testimony is governed by the Criminal Code, the applicable criminal procedure rules and the com - mon law principles governing expert evidence. Federal Court In the Federal Court, expert evidence is governed by Rules 279 to 282.1 of the Federal Courts Rules. Parties must generally serve expert reports in advance of trial and may conduct examinations of expert witnesses in accordance with the Rules. Experts who testify at trial are subject to cross-examination, and the Court may appoint an independent expert or require experts to confer and identify areas of agreement and disagree - ment. Competition-related proceedings commonly involve extensive economic expert evidence. Competition Tribunal The Competition Tribunal regularly relies on expert economic and industry evidence, particularly in merger, abuse of dominance and competitor col - laboration cases. Consistent with the Tribunal’s flex - ible procedures, Rule 2 of the Competition Tribunal Rules allows the Tribunal to dispense with, vary or supplement its Rules in order to deal with matters “as
informally and expeditiously as the circumstances and considerations of fairness permit”. Expert witnesses are typically required to file written expert reports in advance of the hearing and may be examined and cross-examined at the hearing. The Tribunal also pos - sesses broad case management powers to establish procedures governing expert evidence, including the timing of reports, reply reports, witness statements and the conduct of expert testimony. Given the highly economic nature of many antitrust disputes, expert evidence is often among the most significant evidence before the Tribunal. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages and Availability of Punitive Relief Section 36 of the Competition Act creates a statu - tory cause of action to recover losses arising from breaches of the criminal provisions in Part VI of the Act, including price-fixing, bid-rigging, wage-fixing and deceptive marketing practices, as well as failures to comply with orders of the Competition Tribunal or a court. Plaintiffs may recover the amount of loss or damage proven, plus a portion of investigation and litigation costs that the court considers appropriate. Where there has been a prior criminal conviction, Sec - tion 36 (2) provides prima facie proof of the underlying contravention, significantly easing the plaintiff’s evi - dentiary burden. Section 36 does not permit recovery of exemplary or punitive damages. However, in Microsoft Corp . v Pro - Sys Consultants Ltd ., the Supreme Court of Canada confirmed that Section 36 does not displace concur - rent common law or equitable causes of action arising from the same conduct. Plaintiffs may therefore pur - sue claims such as civil conspiracy, unlawful interfer - ence with economic relations, or unjust enrichment alongside a Section 36 claim. As a result, punitive damages may be available where the facts support an independent common law cause of action, even though such damages are not recoverable under Sec - tion 36 itself. A breach of the criminal conspiracy pro -
52 A NTITRUST LI T IGATI O N 2026
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