CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
9. Liability and Contribution 9.1 Joint and Several Liability Joint and Several Liability, Criminal Provisions Whether liability is joint and several in Canadian anti - trust litigation remains unsettled. Section 36 of the Competition Act permits a person who has suffered loss or damage as a result of conduct contrary to Part VI to recover damages from the person who engaged in the impugned conduct, but it does not express - ly address the allocation of liability among multiple defendants. Parliament previously considered codifying joint and several liability. However, the relevant provision in the proposed act was repealed before coming into force and therefore does not govern civil actions today. Absent legislative guidance or definitive appellate authority, the issue remains open, although courts may ultimately draw upon broader Canadian princi - ples governing concurrent wrongdoing, which gen - erally recognise joint and several liability. This would allow a claimant to recover all of its damages from any one defendant, leaving the defendants to resolve issues of apportionment amongst themselves. Joint and Several Liability, Civil Provisions In the civil reviewable practices context, the Compe - tition Act is largely silent on the allocation of liability among multiple respondents. As a result, courts may look to provincial law for guidance on issues of fault allocation and recovery. For example, Section 1 of Ontario’s Negligence Act provides that where dam - ages have been caused by the fault or negligence of two or more persons, the persons are jointly and sev - erally liable to the injured party for the full amount of the loss. Although the application of provincial liability rules to proceedings brought under the federal Competi - tion Act could theoretically raise federalism concerns, particularly if a provincial rule were found to conflict with the federal statutory scheme, modern Canadian division of powers jurisprudence generally favours the concurrent operation of federal and provincial laws wherever possible. Accordingly, absent a genuine operational conflict, provincial rules respecting par -
vision in Section 45 of the Competition Act may also satisfy the requirements of a civil conspiracy claim. By contrast, breaches of the Act’s civil reviewable provisions generally do not give rise to damages claims, except where a Tribunal order has been vio - lated. Recent amendments also allow private appli - cants before the Competition Tribunal to seek mon - etary recovery for certain civilly reviewable conduct, although this remedy is distinct from Section 36 dam - ages. Status of the “Passing-On” Defence in Canada The passing-on defence is not available in Canadian antitrust litigation. Interest on Damages The availability and calculation of interest in Cana - dian antitrust litigation depend on the forum in which relief is sought and the nature of the claim. Interest is generally governed by the procedural law of the court or tribunal hearing the matter. Most provinces allow for pre- and post-judgment interests at posted rates updated each quarter. The same approach applies to claims arising from a failure to comply with an order of the Competition Tri - bunal or a court under Section 36 (1)(b). Courts retain discretion to vary the statutory rate where warranted by the circumstances. For private applications before the Competition Tribu - nal relating to civil reviewable conduct, the monetary recovery regime that came into force on 20 June 2025 is distinct from Section 36 damages. The Tribunal may order payment of an amount not exceeding the value of the benefit derived from the anti-competitive conduct and direct its distribution among similarly affected persons. However, the legislation does not currently prescribe a specific statutory interest for - mula for such awards, and the Tribunal’s approach to interest remains largely undeveloped given the recent introduction of the remedy.
53 A NTITRUST LI T IGATI O N 2026
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