On September 20, 2012, Canada's Competition Bureau (the
Bureau) published the final version of its long-awaited Enforcement
Guidelines on the abuse of dominance provisions (sections 78 and
79) of the Competition Act (the Final Guidelines). The
Guidelines have been more than three years in the making. An
initial draft released in January of 2009 was the subject of
considerable public comment, but was never finalized. The Bureau released a draft version of substantially
revised guidelines for public consultation on March 22, 2012 (the
Draft Guidelines). After
receiving and reviewing submissions from interested
parties, the Bureau has now released the final
version, which replaces all of the Bureau's previous
publications on the abuse of dominance provisions.
In general, the Final Guidelines are substantively similar to
the Draft Guidelines. There are no significant changes in the Final
Guidelines as compared to the Draft Guidelines.
In some areas, the Final Guidelines provide less guidance than
did the Draft Guidelines. The Final Guidelines omit a four-part
analysis that the Bureau would use to determine whether firms
appear to be holding market power as a group that was present in
the Draft Guidelines.
A frequent comment on the Draft Guidelines was that they did not
provide specific and practical examples of various business
practices that would amount to abuse of dominance. Such examples
had been part of the prior draft guidelines on abuse of dominance,
which as noted were published on January 16, 2009
but never finalized. There was considerable feedback on the Draft
Guidelines requesting at least the reinstatement of such examples,
if not their expansion. The Final Guidelines do not contain any
Notably, the Bureau was also asked to provide guidance regarding
when the Bureau would likely seek administrative monetary penalties
and how the level of the penalties would be assessed. The Final
Guidelines shed no insight on this issue.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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