Monday, April 7, 2014
Deborah Salzberger & David Rosner (Blake, Cassels & Graydon LLP) describe New Clouds on the Legality of Unilateral Conduct in Canada.
ABSTRACT: The provisions of the Canadian Competition Act, as interpreted by relatively few cases, created clear demarcations around permissible unilateral conduct in Canada. Recent developments have, however, clouded the picture. Concurrent shifts in proposed legislation, judicial decisions, and enforcement collectively signal new and broader interpretations of the scope of the Act's unilateral conduct provisions. In turn, these developments create uncertainty for businesses operating in Canada, highlighting the need for meaningful transparency and reasoned guidance from the Competition Bureau, the courts, and the legislature. In this regard, the experiences of competition law jurisdictions that have grappled with exploitative pricing, price discrimination, and broader concepts of unilateral conduct than were previously actionable in Canada provide a natural frame of reference.
This note (II) describes the previously understood application of the Act to unilateral conduct; (III) discusses recent enforcement developments that portend unclear changes in the application of unilateral conduct rules in Canada; and (IV) considers ways that clarity could be re-established for unilateral conduct in Canada, including by reference to the experiences of the United States and the European Union.