Competition Act (R.S.C., 1985, c. C-34)

Abuse of Dominant Position

Marginal note:Definition of anti-competitive act

• 78 (1) For the purposes of section 79, anti-competitive act means any act intended to have a predatory, exclusionary or disciplinary negative effect on a competitor, or to have an adverse effect on competition, and includes any of the following acts:

  • (a) squeezing, by a vertically integrated supplier, of the margin available to an unintegrated customer who competes with the supplier, for the purpose of impeding or preventing the customer’s entry into, or expansion in, a market;

  • (b) acquisition by a supplier of a customer who would otherwise be available to a competitor of the supplier, or acquisition by a customer of a supplier who would otherwise be available to a competitor of the customer, for the purpose of impeding or preventing the competitor’s entry into, or eliminating the competitor from, a market;

  • (c) freight equalization on the plant of a competitor for the purpose of impeding or preventing the competitor’s entry into, or eliminating the competitor from, a market;

  • (d) use of fighting brands introduced selectively on a temporary basis to discipline or eliminate a competitor;

  • (e) pre-emption of scarce facilities or resources required by a competitor for the operation of a business, with the object of withholding the facilities or resources from a market;

  • (f) buying up of products to prevent the erosion of existing price levels;

  • (g) adoption of product specifications that are incompatible with products produced by any other person and are designed to prevent his entry into, or to eliminate him from, a market;

  • (h) requiring or inducing a supplier to sell only or primarily to certain customers, or to refrain from selling to a competitor, with the object of preventing a competitor’s entry into, or expansion in, a market;

  • (i) selling articles at a price lower than the acquisition cost for the purpose of disciplining or eliminating a competitor; and

  • (j) a selective or discriminatory response to an actual or potential competitor for the purpose of impeding or preventing the competitor’s entry into, or expansion in, a market or eliminating the competitor from a market.

  • (k) [Repealed, 2009, c. 2, s. 427]

• (2) [Repealed, 2009, c. 2, s. 427]

Marginal note:Prohibition if abuse of dominant position

• 79 (1) If, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that

  • (a) one or more persons substantially or completely control, throughout Canada or any area thereof, a class or species of business,

  • (b) that person or those persons have engaged in or are engaging in a practice of anti-competitive acts, and

  • (c) the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market,

  the Tribunal may make an order prohibiting all or any of those persons from engaging in that practice.

• Marginal note:Additional or alternative order

  (2) Where, on an application under subsection (1), the Tribunal finds that a practice of anti-competitive acts has had or is having the effect of preventing or lessening competition substantially in a market and that an order under subsection (1) is not likely to restore competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all the persons against whom an order is sought to take such actions, including the divestiture of assets or shares, as are reasonable and as are necessary to overcome the effects of the practice in that market.

• Marginal note:Limitation

  (3) In making an order under subsection (2), the Tribunal shall make the order in such terms as will in its opinion interfere with the rights of any person to whom the order is directed or any other person affected by it only to the extent necessary to achieve the purpose of the order.

• Marginal note:Administrative monetary penalty

  (3.1) If the Tribunal makes an order against a person under subsection (1) or (2), it may also order them to pay, in any manner that the Tribunal specifies, an administrative monetary penalty in an amount not exceeding the greater of

  • (a) $10,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $15,000,000, and

  • (b) three times the value of the benefit derived from the anti-competitive practice, or, if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues.

• Marginal note:Aggravating or mitigating factors

  (3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account any evidence of the following:

  • (a) the effect on competition in the relevant market;

  • (b) the gross revenue from sales affected by the practice;

  • (c) any actual or anticipated profits affected by the practice;

  • (d) the financial position of the person against whom the order is made;

  • (e) the history of compliance with this Act by the person against whom the order is made; and

  • (f) any other relevant factor.

• Marginal note:Purpose of order

  (3.3) The purpose of an order made against a person under subsection (3.1) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person.

• Marginal note:Factors to be considered

  (4) In determining, for the purposes of subsection (1), whether a practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal shall consider whether the practice is a result of superior competitive performance and may consider

  • (a) the effect of the practice on barriers to entry in the market, including network effects;

  • (b) the effect of the practice on price or non-price competition, including quality, choice or consumer privacy;

  • (c) the nature and extent of change and innovation in a relevant market; and

  • (d) any other factor that is relevant to competition in the market that is or would be affected by the practice.

• Marginal note:Exception

  (5) For the purpose of this section, an act engaged in pursuant only to the exercise of any right or enjoyment of any interest derived under the Copyright Act, Industrial Design Act, Integrated Circuit Topography Act, Patent Act, Trademarks Act or any other Act of Parliament pertaining to intellectual or industrial property is not an anti-competitive act.

• Marginal note:Limitation period

  (6) No application may be made under this section in respect of a practice of anti-competitive acts more than three years after the practice has ceased.

• Marginal note:Where proceedings commenced under section 45, 49, 76, 90.1 or 92

  (7) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

  • (a) proceedings have been commenced against that person under section 45 or 49; or

  • (b) an order against that person is sought by the Commissioner under section 76, 90.1 or 92.

• Marginal note:Inferences

  (8) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.

Marginal note:Unpaid monetary penalty

79.1 The amount of an administrative monetary penalty imposed on a person under subsection 79(3.1) is a debt due to Her Majesty in right of Canada and may be recovered as such from that person in a court of competent jurisdiction.

Delivered Pricing

Marginal note:Definition of delivered pricing

• 80 (1) For the purposes of section 81, delivered pricing means the practice of refusing a customer, or a person seeking to become a customer, delivery of an article at any place in which the supplier engages in a practice of making delivery of the article to any other of the supplier’s customers on the same trade terms that would be available to the first-mentioned customer if his place of business were located in that place.

• Marginal note:Definition of trade terms

  (2) For the purposes of subsection (1), the expression trade terms means terms in respect of payment, units of purchase and reasonable technical and servicing requirements.

Marginal note:Delivered pricing

• 81 (1) Where, on application by the Commissioner, the Tribunal finds that delivered pricing is engaged in by a major supplier of an article in a market or is widespread in a market with the result that a customer, or a person seeking to become a customer, is denied an advantage that would otherwise be available to him in the market, the Tribunal may make an order prohibiting all or any of such suppliers from engaging in delivered pricing.

• Marginal note:Exception where significant capital investment needed

  (2) No order shall be made against a supplier under this section where the Tribunal finds that the supplier could not accommodate any additional customers at a locality without making significant capital investment at that locality.

• Marginal note:Exception where trademark used

  (3) No order shall be made against a supplier under this section in respect of a practice of refusing a customer delivery of an article that the customer sells in association with a trademark that the supplier owns or in respect of which the supplier is a registered user where the Tribunal finds that the practice is necessary to maintain a standard of quality in respect of the article.

Foreign Judgments and Laws

Marginal note:Foreign judgments, etc.

82 Where, on application by the Commissioner, the Tribunal finds that

• (a) a judgment, decree, order or other process given, made or issued by or out of a court or other body in a country other than Canada can be implemented in whole or in part by persons in Canada, by companies incorporated by or pursuant to an Act of Parliament or of the legislature of a province, or by measures taken in Canada, and

• (b) the implementation in whole or in part of the judgment, decree, order or other process in Canada, would

  • (i) adversely affect competition in Canada,

  • (ii) adversely affect the efficiency of trade or industry in Canada without bringing about or increasing in Canada competition that would restore or improve that efficiency,

  • (iii) adversely affect the foreign trade of Canada without compensating advantages, or

  • (iv) otherwise restrain or injure trade or commerce in Canada without compensating advantages,

  the Tribunal may, by order, direct that

• (c) no measures be taken in Canada to implement the judgment, decree, order or process, or

• (d) no measures be taken in Canada to implement the judgment, decree, order or process except in such manner as the Tribunal prescribes for the purpose of avoiding an effect referred to in subparagraphs (b)(i) to (iv).

Marginal note:Foreign laws and directives

• 83 (1) Where, on application by the Commissioner, the Tribunal finds that a decision has been or is about to be made by a person in Canada or a company incorporated by or pursuant to an Act of Parliament or of the legislature of a province

  • (a) as a result of

    • (i) a law in force in a country other than Canada, or

    • (ii) a directive, instruction, intimation of policy or other communication to that person or company or to any other person from

      • (A) the government of a country other than Canada or of any political subdivision thereof that is in a position to direct or influence the policies of that person or company, or

      • (B) a person in a country other than Canada who is in a position to direct or influence the policies of that person or company,

      where the communication is for the purpose of giving effect to a law in force in a country other than Canada,

    and that the decision, if implemented, would have or would be likely to have any of the effects mentioned in subparagraphs 82(b)(i) to (iv), or

  • (b) as a result of a directive, instruction, intimation of policy or other communication to that person or company or to any other person, from a person in a country other than Canada who is in a position to direct or influence the policies of that person or company, where the communication is for the purpose of giving effect to a conspiracy, combination, agreement or arrangement entered into outside Canada that, if entered into in Canada, would have been in contravention of section 45,

  the Tribunal may, by order, direct that

  • (c) in a case described in paragraph (a) or (b), no measures be taken by the person or company in Canada to implement the law, directive, instruction, intimation of policy or other communication, or

  • (d) in a case described in paragraph (a), no measures be taken by the person or company in Canada to implement the law, directive, instruction, intimation of policy or other communication except in such manner as the Tribunal prescribes for the purpose of avoiding an effect referred to in subparagraphs 82(b)(i) to (iv).

• Marginal note:Limitation

  (2) No application may be made by the Commissioner for an order under this section against a particular company where proceedings have been commenced under section 46 against that company based on the same or substantially the same facts as would be alleged in the application.

Foreign Suppliers

Marginal note:Refusal to supply by foreign supplier

84 Where, on application by the Commissioner, the Tribunal finds that a supplier outside Canada has refused to supply a product or otherwise discriminated in the supply of a product to a person in Canada (the “first” person) at the instance of and by reason of the exertion of buying power outside Canada by another person, the Tribunal may order any person in Canada (the “second” person) by whom or on whose behalf or for whose benefit the buying power was exerted

• (a) to sell any such product of the supplier that the second person has obtained or obtains to the first person at the laid-down cost in Canada to the second person of the product and on the same terms and conditions as the second person obtained or obtains from the supplier; or

• (b) not to deal or to cease to deal, in Canada, in that product of the supplier.