Canada: New Abuse Of Dominance Enforcement Guidelines

Last Updated: September 27 2012
Article by James B. Musgrove, Dr. A. Neil Campbell and Jun Chao Meng

On September 20, 2012, the Canadian Competition Bureau released its revised Enforcement Guidelines on the Abuse of Dominance Provisions of the Competition Act (the "New Guidelines").1

The New Guidelines provide a summary of the Bureau's approach to the enforcement of the Canadian abuse of dominant market position regime. Changes from the existing guidelines which were issued in 2001 (the "2001 Guidelines") and earlier draft guidelines (the "2009 Draft Guidelines"), which were never finalized, provide insight into the Bureau's evolving thinking. Key aspects of the New Guidelines and differences from previous guidelines are summarized below.

  1. Less Detail: The New Guidelines offer much less guidance, by way of examples and analyses of types of anti-competitive conduct, than did the 2009 Draft Guidelines or the 2001 Guidelines. This development is unfortunate, since guidelines are most useful in articulating enforcement approaches where jurisprudence is not available.  
  2. Necessary Intent: The most important development in the New Guidelines is the Bureau's changed interpretation of the intent necessary to find that conduct constitutes an anti-competitive act, and can therefore be the basis for a finding of abuse of dominant market position. The jurisprudence has been unanimous that, to constitute an anti-competitive act, conduct must be undertaken with the goal of having a negative effect on a competitor which is predatory, exclusionary or disciplinary. However, the New Guidelines state that "while many types of anti-competitive conduct may be intended to harm competitors, the Bureau considers that certain acts not specifically directed at competitors could still be considered to have an anti-competitive purpose". This approach greatly expands the scope for finding that conduct constitutes an abuse of dominance. For example, a Bureau official has noted that it could cover "facilitating practices."
  3. Joint Abuse of Dominance and Conscious Parallelism: The 2001 Guidelines expressly stated that mere conscious parallelism would not constitute an abuse of dominance, but the 2009 Draft Guidelines removed that provision. The New Guidelines state that "Similar or parallel conduct by firms is insufficient, on its own, for the Bureau to consider those firms to hold a jointly dominant position." The question remains as to what degree of joint action will be necessary to find joint dominance. The Competition Tribunal has not yet had occasion to consider this important point (many firms which would not consider themselves to be dominant may be subject to challenge as jointly dominant, depending upon the test employed).
  4. Market Share Thresholds: The New Guidelines maintain the historic 35% market share "safe harbour". They also indicate that a firm with a market share of between 35% and 50% will generally only be examined by the Bureau if the firm is likely to increase its market power through the alleged anti-competitive behaviour within a reasonable period of time. This change suggests that the Bureau is now less likely to focus on firms with market shares below 50%. If a firm holds a market share in excess of 50%, the New Guidelines provide that it will likely be subject to further examination.
  5. Substantial Lessening of Competition and Sufficient Remaining Competition: The New Guidelines indicate that the focus in deciding whether there has been a "substantial lessening or prevention of competition" as a result of anti-competitive conduct requires an assessment of the relative decrease in competition in the market as a result of the conduct, not a consideration of the overall competitiveness of the market, or whether the absolute level of competition in the market is substantial or sufficient. As a result, it is at least theoretically possible for conduct that results in a "substantial" lessening of competition to be challenged, even when the market in issue continues to be characterized by a "substantial" or "significant" level of competition in absolute terms. This is an odd result.
  6. Administrative Monetary Penalties: Historically, a finding of abuse of dominant market position did not give rise to fines or civil damages. In March 2009, administrative monetary penalties (a maximum of $10 million, or $15 million for repeat conduct) were introduced. There is not yet any jurisprudence regarding the imposition of such penalties. It would have been helpful to have guidance on when and what level of administrative monetary penalties would be sought by the Bureau in certain circumstances, but the New Guidelines are silent on this important issue.

The New Guidelines arrive on the heels of significantly enhanced enforcement efforts by the Competition Bureau. Between 2000-2008, only a single abuse of dominance case was filed. Since mid-2009, the Bureau has filed a Consent Agreement settling a matter involving joint abuse of dominance in the waste business; brought an abuse of dominance case against the Canadian Real Estate Association which was subsequently settled; and is pursuing an abuse case against the Toronto Real Estate Board. The Bureau is also litigating a case against Visa and MasterCard under the price maintenance provisions of the Act that is similar in many respects to an abuse of dominance case. Thus, the issues addressed in the New Guidelines are of significant practical, as well as policy, importance.


1. The new Guidelines are available on the Competition Bureau's website at:

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2012 McMillan LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

James B. Musgrove
Jun Chao Meng
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.