CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
Mediation Before the Competition Tribunal For reviewable matters before the Competition Tribu - nal, parties may participate in a confidential mediation conducted by a judicial member of the Tribunal. Medi - ation is available in all contested Tribunal proceedings, including private access applications brought with leave under Section 103.1 of the Competition Act. Consistent with subsection 9 (2) of the Competition Tribunal Act, the Tribunal encourages the informal and expeditious resolution of disputes where appropriate. Mediation occurs only with the consent of all parties and may take place at any stage of the proceeding. Parties may seek to resolve the entire dispute or only specific issues. Where a settlement is reached, it is commonly formalised through a consent agreement registered under Sections 74.12 or 105 of the Com - petition Act. Consent Agreements In civil enforcement matters, parties may also resolve disputes through negotiated consent agreements with the Commissioner of Competition. Under Section 105 of the Competition Act, a consent agreement regis - tered with the Tribunal has the same force and effect as a Tribunal order. This mechanism is frequently used to resolve reviewable conduct matters without a con - tested hearing. Criminal Matters ADR mechanisms are generally not used in criminal competition proceedings, such as cartel and bid-rig - ging prosecutions. Those matters proceed through the criminal justice system, although immunity and leniency programmes may facilitate negotiated resolu - tions with enforcement authorities.
frequently uphold such arrangements where they pro - mote access to justice, do not provide the funder with excessive control over the litigation and do not other - wise undermine the administration of justice. Litigation funding is most commonly used in private actions under Section 36 of the Competition Act, par - ticularly cartel and bid-rigging class actions. 11.2 Costs Costs awards in Canadian competition proceedings (especially class actions) depend on the jurisdiction. While some jurisdictions have a “loser pays” principle, other jurisdictions (eg, the Federal Court) operate on a presumptive no-costs basis. Before the Competition Tribunal, Section 8.1 (1) of the Competition Tribunal Act expressly authorises the Tri - bunal to award costs on an interim or final basis in accordance with the Federal Courts Rules. The amount recoverable varies by jurisdiction and cir - cumstances. In Ontario, successful parties typically recover partial indemnity costs, often in the range of 40-60% of actual legal fees. Rule 49 of the Rules of Civil Procedure may result in enhanced cost conse - quences where a party rejects a settlement offer and fails to obtain a more favourable result at trial. Security for Costs Defendants may seek security for costs in civil com - petition proceedings. In the Federal Court, Rule 416 (1) of the Federal Courts Rules authorises the Court to order security where, among other things, the plaintiff is ordinarily resident outside Canada, is a corporation with insufficient assets in Canada to satisfy a costs award, has unpaid costs orders, or where there is rea - son to believe the proceeding is frivolous and vexa - tious and the plaintiff lacks sufficient assets to satisfy a costs award. Rule 417 permits the Court to refuse security where an impecunious plaintiff demonstrates that its claim has merit. In practice, security is commonly provided by payment into court, a letter of credit or other court-approved security. Under Rule 416 (3), the proceeding may be stayed until the ordered security is furnished.
11. Funding and Costs 11.1 Litigation Funding
Third-party litigation funding is available in Canadian competition proceedings, including private dam - ages actions, competition class actions and pro - ceedings before the Competition Tribunal. Although funding agreements were historically vulnerable to challenges based on the common law doctrines of maintenance and champerty, Canadian courts now
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