CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
Test for Granting an Injunction Canadian courts and the Competition Tribunal fol - low the principles governing interlocutory injunctions established by the Supreme Court of Canada in RJR - MacDonald Inc v Canada ( Attorney General ). In Can- ada ( Commissioner of Competition ) v Secure Energy Services Inc ., the Tribunal confirmed that an applicant under Section 104 of the Competition Act must gener - ally establish: (i) a serious issue to be tried; (ii) irrepa - rable harm if relief is refused; and (iii) that the balance of convenience favours granting the requested relief. Where the relief sought is mandatory rather than pro - hibitory, a stronger prima facie case may be required. Procedure, Timing and Notice An application for injunctive relief is brought before the Competition Tribunal after the filing of a substantive application under the relevant provision of the Com - petition Act. Section 104 (1.1) further provides that where an interim order is sought in respect of a pro - posed merger, the transaction cannot be completed until the application is determined. The Tribunal has indicated that urgent Section 104 applications should ordinarily be heard within approximately one week The Competition Act also authorises certain forms of relief without notice. In particular, Section 100 permits the Commissioner to seek an interim order preventing completion of a proposed merger while the Bureau completes its inquiry, and Section 103.3 provides for ex parte interim orders in certain reviewable practices matters. As with other injunction proceedings brought before the Canadian courts, an applicant proceed - ing without notice is generally expected to make full and frank disclosure of all material facts. Unlike ordinary civil injunctions, the Competition Act does not expressly require the Commissioner to provide a cross-undertaking in damages where interim relief is granted but the underlying application ultimately fails. 10.2 Alternative Dispute Resolution where a transaction is imminent. Ex Parte Relief and Undertakings Alternative dispute resolution mechanisms are avail - able in Canadian competition law proceedings, but they are generally voluntary rather than mandatory.
ties who are jointly and severally liable would likely continue to apply. This may become particularly rel - evant as the expanded private access regime under Section 103.1 of the Competition Act gives rise to an increasing number of civil applications involving mul - tiple respondents. Immunity and Leniency Applicants The Competition Act does not currently limit the civil liability of immunity or leniency applicants. Conse - quently, parties that co-operate with the Competition Bureau may nonetheless remain defendants in follow- on damages actions under Section 36 and may be exposed to the same civil remedies as other partici - pants in the alleged conduct. 9.2 Contribution Claiming Contributions From Third Parties Canadian antitrust defendants may seek contribution and indemnity from other parties alleged to have par - ticipated in the impugned conduct. The Competition Act does not contain an express contribution regime. As a result, such claims typically rely on common law principles governing concurrent wrongdoing. Procedurally, a defendant may commence a third-par - ty claim against a non-party or a cross-claim against a co-defendant under the applicable rules of civil pro - cedure. 10. Other Remedies 10.1 Injunctions Injunctive relief is available in common law court pro - ceedings. The Competition Tribunal may also grant injunctive relief under Section 104 of the Competition Act in civil matters, including merger and non-merger review - able practices cases, pending the determination of the underlying application. The Tribunal may grant any interim order it considers appropriate, having regard to the principles ordinarily applied by Canadian courts when granting interlocutory injunctions.
54 A NTITRUST LI T IGATI O N 2026
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