I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY
Private antitrust litigation in Canada takes place either in the civil courts of the various provinces of Canada or before the federal Competition Tribunal ('the Tribunal'), depending on the nature of the matter. Most of the litigation activity to date has occurred in the civil courts. Of those cases, most are class proceedings that allege the existence of price-fixing cartels among groups of defendants and seek damages in respect of the 'overcharge' (or inflated price) for the product.
In most of these class proceedings, the alleged price-fixed product is an input into another product (e.g., a microchip) that passes through a chain of distribution to end users or consumers (e.g., a computer). Given the requirement, discussed below, that a plaintiff must have suffered harm to have a private antitrust claim, important questions may arise as to whether direct purchasers of the price-fixed product passed on some or all of the overcharge down the chain of distribution to indirect purchasers, and if so, whether the indirect purchasers passed on some or all of the overcharge even further down the chain.
Until 2011, to the extent that Canadian courts had considered the 'pass-on' issue, they had ruled that both direct and indirect purchasers have standing to bring price-fixing conspiracy claims, and that defendants can use 'pass-on' to raise issues to challenge the benefit of certification of the class or to otherwise challenge a plaintiff's claim of loss or damage. However, in April 2011, the Court of Appeal of British Columbia reversed certification orders in the Microsoft and Sun-Rype cases upon concluding that indirect purchasers have 'no cause of action recognized in law' and therefore no capacity to sue to recover an alleged overcharge.1
The plaintiffs in both Microsoft and Sun-Rype were granted leave to appeal these decisions to the Supreme Court of Canada on 1 December 2011. On 17 May 2012 the Supreme Court of Canada granted leave to appeal the Quebec Court of Appeal's decision in the Infineon case, which certified a class action including indirect purchasers.2 The appeals are currently scheduled to be heard together in October 2012 and it is anticipated that these decisions will clarify the law with respect to claims by indirect purchasers in Canada.
II GENERAL INTRODUCTION TO THE LEGISLATIVE FRAMEWORK FOR PRIVATE ANTITRUST ENFORCEMENT
i Section 36: private actions for damages incurred as a result of criminal conduct
Section 36 of Canada's Competition Act ('the Act') provides that individuals or companies can bring private actions in a court of competent jurisdiction to recover damages incurred as a result of an alleged violation of the Act's criminal provisions (Part VI, Sections 45–62). The offences in respect of which damages can be sought are conspiracy (Section 45), bid rigging (Section 47), misleading advertising (Section 52) and deceptive telemarketing (Section 52.1).3 Recovery in such cases is limited to the actual loss suffered by the plaintiff, plus the full cost of any investigation and legal costs in connection with the matter. Double or treble damages are not recoverable, nor are punitive damages.
If the private defendant has been convicted of a criminal offence under the Act, the record of the criminal proceedings constitutes proof that the defendant engaged in anti-competitive conduct, absent evidence to the contrary. However, an essential element of actions under Section 36 is that the plaintiff must have suffered actual loss or damage as a result of the defendant's conduct. It is not enough for the plaintiff to point to anticompetitive conduct that did not affect it. Where, however, the private defendant has not (yet) been convicted of a criminal offence under the Act, the plaintiff bears a burden of proof on the traditional civil 'balance of probabilities' standard.
A civil claim for damages under Section 36 is also available against a party that has breached an order of the Tribunal, the federal adjudicative body with exclusive jurisdiction over all non-criminal antitrust offences.4
ii Section 103.1: private access to the Tribunal for civil offences
Section 103.1 of the Act permits private litigants to bring an application before the Tribunal with respect to certain civil 'reviewable matters'. Private access to the Tribunal is permitted only with respect to the following restrictive trade practices: refusal to deal (Section 75); resale price maintenance and refusal to supply (Section 76); and exclusive dealing, tied selling and market restriction (Section 77). Notably, no private actions are permitted in respect of mergers or abuse of dominance. Further, even if an applicant is ultimately successful in showing that the respondent violated a provision of the Act, the Tribunal is only permitted to order the respondent to cease its anti-competitive behaviour. The Tribunal has no jurisdiction to grant monetary remedies or awards.
Private litigants must obtain leave from the Tribunal before being allowed to bring an application. To obtain leave, an applicant must show that it is 'directly and substantially affected' in its businesses by the allegedly anti-competitive conduct; to do so it must, at a minimum, provide 'sufficient credible evidence of what is alleged to give rise to a bona fide belief by the Tribunal (i.e., that the applicant may have been directly and substantially affected in the applicant's business by a reviewable practice)', which is 'a lower standard of proof than proof on a balance of probabilities'.5 While this test might not seem difficult to meet, private litigants to date have faced some difficulty in obtaining leave.
iii Common law: torts of conspiracy and interference with economic interests
In practice, claims for damages under Section 36 of the Act are often accompanied by claims in tort. One potential reason for a plaintiff to add a common law tort claim is that it may allow for claims of punitive damages, which cannot be awarded under Section 36. The two tort claims most frequently pleaded in conjunction with Section 36 claims are claims of common law conspiracy and unlawful interference with economic interests. The constituent elements of these torts are different from the elements of claims under the Act but they can be complementary.
iv Limitation period
The limitation period is set out in Subsection 36(4) of the Act. Actions must be commenced within two years of the later of (1) a date on which the anti-competitive conduct was engaged in or (2) the final disposition of any criminal proceedings relating to the anti-competitive conduct.
i General jurisdictional rule
In order for a Canadian court to have jurisdiction over a dispute, there needs to be a 'real and substantial link' between Canada and the conduct in issue in the case.6 In the context of private actions alleging anti-competitive conduct, the courts have held that the language of Section 45 of the Act prohibiting anti-competitive conspiracies is not limited to conduct that has taken place in Canada.7 An Ontario court held that the ultimate issues for the court were whether the subject matter of the action 'has a real and substantial connection to Ontario' and whether 'the foreign defendant is connected to that subject matter.'8 In order to establish a connection between the subject matter and Ontario, the court said that '[t]here must be a causal connection between the alleged damage (sustained in Canada) and the defendants to establish a realistic possibility that the defendants may be responsible in law for the damage through their unlawful conduct.'9 In many cases, jurisdiction has been taken by Canadian courts on the basis of sales of a product having been made in Canada even if the defendant in question had no presence in Canada. While the Supreme Court of Canada has endorsed the situs of a tort as a presumptive connecting factor to establish jurisdiction, the Supreme Court recently rejected the location of damages as establishing any presumption of jurisdiction on the basis that it risks sweeping into the jurisdiction claims that only have a limited relationship with the forum.10 Although this case was not a price-fixing claim, it raises some questions regarding the requisite jurisdictional link required to establish a real and substantial connection.
ii Forum non conveniens
Even though the jurisdiction of a court to examine the conduct in question may be established, the court still has the discretion to decline jurisdiction, based on the doctrine of forum non conveniens.11 The test on a motion for a stay of proceedings on the basis of forum non conveniens is whether there is clearly a more appropriate forum in which the case should be tried other than the forum chosen by the plaintiff.12 'Where a plaintiff has an action as of right against domestic defendants, the burden is upon the foreign defendants to establish that the domestic forum is forum non conveniens.'13
iii Export cartels
Section 45(5) of the Act provides that the cartel provision of the Act does not apply to cartels that engage only in the export of products from Canada, unless the impugned cartel has resulted or is likely to result in a reduction or limitation of the real value of exports of a product; has restricted or is likely to restrict any persons from entering into or expanding the business of exporting products from Canada; or is in respect only of the supply of services that facilitate the export of products from Canada.
i Standing under Section 36
Under Section 36 of the Act, 'any person' can bring a private action for damages against a defendant alleged to have violated a criminal provision of the Act or the order of a court or the Tribunal issued under the Act. However, as noted in Section II, supra, the plaintiff must have suffered actual loss or damage from the impugned conduct. Quantifiable proof of harm is an important part of establishing liability under Section 36 of the Act. As noted in Section I, supra, the standing of indirect purchasers to bring claims under Section 36 is expected to be addressed by the Supreme Court of Canada.
ii Standing under Section 103.1
'Any person' may apply to the Tribunal for leave to bring a case under Sections 75 to 77 of the Act.14 As discussed in Section II, supra, leave will only be granted to persons who are 'directly and substantially affected' in their business by the defendant's allegedly anti-competitive conduct, and the applicants must provide 'sufficient credible evidence' of the alleged conduct to give rise to a bona fide belief by the Tribunal that the alleged activity could be subject to an order under Sections 75, 76 or 77.
V THE PROCESS OF DISCOVERY
In Canada, discovery is composed of document production obligations and oral examinations for discovery. In civil proceedings, parties are generally required to provide an affidavit of documents identifying the documents that are relevant to the litigation, and to produce those that are not privileged. Document production obligations can be very broad. Principles of proportionality are intended to ensure that the cost and burden of document production in a civil trial is proportional to the matters and amounts at issue in the claim. The challenges of electronic discovery and the increasingly technological nature of documentary production are issues that are the subject of frequent commentary by lawyers and judges alike. Privileged documents are not disclosed, but are required to be identified with sufficient particularity in the affidavit of documents to enable the other party to evaluate the privilege claim.
Oral examinations for discovery are generally more limited than in the United States and certain other jurisdictions. For instance, in Ontario a plaintiff to a proceeding is entitled as of right to examine only one representative per defendant. That representative is required to inform the plaintiff about the issues in the litigation and may answer questions by way of written undertaking in circumstances where the information is available but not within the personal knowledge of the representative being examined.
In proceedings before the Tribunal, each party is required to serve an affidavit of documents identifying the documents that are relevant to any matter in issue. There are no provisions in the Tribunal Rules for pre-trial oral discovery, but the Tribunal maintains discretion to order it on a case-specific basis.
VI USE OF EXPERTS
The use of industry experts and expert economists is commonplace in Canadian private antitrust litigation. Expert affidavit evidence from economists is also typical in most Canadian jurisdictions at the class certification stage. Because a class certification motion is not a merits assessment, expert evidence tendered at this preliminary stage of the proceeding tends to focus on whether loss or damage can be proven on a class-wide basis.
Both in civil trials and in hearings before the Tribunal, expert evidence plays a significant role. The civil procedure rules in each of the provinces address the delivery of expert reports before trial. The Tribunal Rules also provide for the delivery of expert evidence before the hearing. In addition, the Tribunal Rules provide the Tribunal the authority to appoint its own independent expert to inquire into or report on any question of fact or opinion relevant to an issue in the proceeding.15
VII CLASS ACTIONS
In Canada, class actions are provided for by statute in all provinces except Prince Edward Island.16 Unlike the United States, there is no procedure akin to the multi-district litigation process to manage multi-jurisdictional class actions.17 As a result, class actions alleging anti-competitive conduct will often be brought in more than one province. Frequently, class counsel in Canada will make informal arrangements to proceed in only one jurisdiction even though similar actions may be commenced in other jurisdictions. If a class action in one province has been certified as a 'national class' (or a class that includes residents from across Canada), a stay of similar proceedings may be sought in other provinces.18 However, there remains jurisdictional uncertainty regarding the enforceability of national classes.19 Some of the more recent class action statutes have attempted to address the complications raised by multi-jurisdictional class actions through statutory language. For instance, the class action legislation in Saskatchewan and Alberta contains provisions that address when the court should exercise jurisdiction over a multi-jurisdictional class action.20
i Requirements for certification
Although there are some differences in the statutory language in the common law jurisdictions in Canada, a class proceeding may be certified by the court if the following requirements are met:
- the pleadings disclose a cause of action;
- there is an identifiable class of two or more persons;
- the claims of the class members raise common issues;
- a class proceeding is the preferable procedure for the resolution of the common issues; and
- there is a representative plaintiff who can fairly and adequately represent the interests of the class, and a workable method or plan for advancing the proceeding.
In Quebec (a civil law jurisdiction in which the motion for certification is referred to as 'authorisation') there are two notable differences: (1) a 'numerosity' requirement similar to that imposed by US Federal Rule 23; and (2) a lack of a specific requirement that a proposed class action meet a 'preferable procedure' test (although, in practice, this second requirement is subsumed in the determinations relating to the existence of an identifiable class and the sufficiency of the common issues).
When determining the issue of certification, the courts assess the above prerequisites keeping in mind the following three important objectives of class proceedings legislation: judicial economy; improved access to the courts for actions that may not otherwise be asserted; and behaviour modification for actual or potential wrongdoers.21
Under the class actions laws of the various Canadian provinces, a plaintiff who meets the requirements of an adequate representative plaintiff, as set out above, may bring a private action on his or her own behalf and on behalf of all other persons who have allegedly suffered similar losses as a result of the defendant's conduct (which, in the case of competition law, could include conduct contrary to the criminal provisions of the Act or conduct that consists in a failure to comply with an order of the Tribunal or a court under the Act).
Notice to the class members of key events such as certification and settlement is typically mandatory unless notice is dispensed with by order of the court. Among the different provinces in Canada, there are both 'opt-out' and 'opt-in' jurisdictions. For opt-out jurisdictions, once a class proceeding has been certified, members of the defined class are presumed to be in the proceeding and to be bound by the court's determination unless they take active steps to 'opt out' within a limited time period prescribed by the court.
iv Settlements in class proceedings
Settlements of competition class actions in Canada are common and often follow settlements in any related proceedings in the United States. Typically, the parties negotiate a settlement based on an agreed-upon overcharge amount and adjust the amount based on a myriad of factors. Where each consumer would receive only a small settlement amount, distributions may be made cy-près to organisations such as charities or trade organisations.
In Canada, all settlements of class proceedings must be approved by the courts in which the proceeding was commenced. Because Canadian price-fixing class actions are often commenced in several Canadian jurisdictions simultaneously, court approval of the settlement is required in each of these jurisdictions. Efforts to attempt to streamline this process through judicial cooperation are currently under discussion.22
VIII CALCULATING DAMAGES
Damages under Section 36 of the Act are compensatory and where proven entitle a plaintiff to recover its loss or damage. Section 36 also entitles a plaintiff to claim for the costs of investigation of the matter. Although punitive damages cannot be claimed under Section 36, as noted above, damages for the common law torts of conspiracy or intentional interference with economic relations are often claimed along with Section 36 claims and may include claims for punitive damages.
To date, no contested class actions based on Section 36 of the Act have reached the stage of a trial, and there are no reported decisions on the methodology of the calculation of damages for price-fixing in the class proceeding context. Accordingly, to date most judicial commentary regarding damages-related issues have arisen in the class certification context (including in settlements).
The traditional approach to determining damages in competition cases has been to assess the difference between the alleged cartel prices and what prices would have been 'but for' the cartels to arrive at the estimated amount of an 'overcharge'. Expert evidence, including regression analysis, is often relied upon to estimate the amount of the overcharge and to address issues of pass-on (or pass-through).
Given the difficulties associated with establishing loss on a class-wide basis, class counsel are increasingly relying on alternative and less traditional approaches to damages as a means of making cases more amendable to class certification, including restitutionary theories that focus on disgorgement of the defendants' gain as opposed to the loss suffered by the class members.23
IX PASS-ON DEFENCES
As described in Section I, supra, pass-on has been used both by plaintiffs (to assert indirect purchaser claims) and defendants (to challenge damages by direct purchasers and to challenge the ability of plaintiffs to prove harm on a class-wide basis) in Canadian price-fixing class action litigation. However, the Microsoft and Sun-Rype decisions of the British Columbia Court of Appeal held that the pass-on defence is not recognised in Canada and that the corollary of that is that indirect purchasers do not have a cause of action. These decisions do not alter the law in the other provinces of Canada, and at present there are differences between provinces in the treatment of pass-on defences. As noted, the Supreme Court of Canada is likely to provide clarity in this area when it hears the appeals in Microsoft, Sun-Rype and Infineon.
X FOLLOW-UP LITIGATION
i Section 36 claims: criminal conduct
As discussed in Section II, supra, Section 36(2) of the Act provides that a prior criminal conviction under the Act is proof that the defendant has engaged in illegal conduct, unless there is evidence to the contrary. Furthermore, any evidence given in criminal proceedings as to the effect of the defendant's conduct is evidence in the civil proceedings. When there is no prior criminal conviction, a plaintiff can still bring a civil claim against the defendant, but must prove all elements of the case on a civil standard (i.e., on a balance of probabilities).
ii The Competition Bureau's immunity programme
Subject to certain conditions, parties who are the first to report an ongoing conspiracy to the Commissioner of Competition (before the Commissioner otherwise has enough evidence to commence an investigation) may receive immunity from prosecution.24 In Canada, such immunity applies only to criminal prosecutions and does not extend to private actions.
iii Sections 75–77: civilly reviewable conduct
One of the requirements for the granting of leave for a private application to the Tribunal under Sections 75 (refusal to deal), 76 (resale price maintenance and refusal to supply) or 77 (exclusive dealing, tied selling and market restriction) is certification by the Commissioner that the matter in respect of which leave is sought is not the subject of an inquiry or application by the Commissioner to the Tribunal (either ongoing or settled).
In B-Filer Inc,25 when a plaintiff brought two actions (a Section 75 refusal-to-deal claim before the Tribunal and a tort claim before the court) for the same conduct, the dismissal of the court proceedings26 did not render the Tribunal proceedings res judicata, 'because the issues before the Tribunal are not the same as the issues that were before the Alberta court'.27 The Tribunal also rejected the defendant's argument of estoppel, deciding that to continue the case before the Tribunal was not an abuse of process since the Tribunal had the exclusive jurisdiction to deal with issues under Sections 75 and 77 of the Act.28
i Solicitor and client privilege
As is the case in most common law jurisdictions, solicitor–client privilege (similar to attorney–client privilege in the US) protects communications between solicitor and client that are made in confidence for the purpose of giving or receiving legal advice. The solicitor–client privilege also applies to in-house counsel employed by a corporation, to the extent that they are performing the function of legal counsel to the company and not some other corporate function.
ii Litigation privilege
In addition to solicitor–client privilege, litigation privilege applies to work product and communications that are made specifically in contemplation of existing or anticipated litigation. Litigation privilege also applies to communications with third parties where the dominant purpose of the communication is to assist with existing or anticipated litigation.
iii Settlement privilege
In circumstances where parties involved in a dispute engage in settlement communications for the purpose of attempting to resolve the dispute and the proposed settlement communications are made on a 'without prejudice' basis, the communications will be protected from disclosure to the court by settlement privilege.
XII SETTLEMENT PROCEDURES
Settlements are actively encouraged by Canadian courts and many jurisdictions have mandatory mediation requirements in their civil procedure rules. Most class actions commenced to date have not proceeded to trial and are settled before and after class certification.
As noted, class action settlements are subject to court approval. To grant approval of a class action settlement, the court must find that the settlement is fair, reasonable and in the interests of all those affected by it.29 In determining whether to approve a class action settlement, the court will have regard to factors including:
- the likelihood of recovery or success if the case were litigated;
- the amount and nature of discovery or investigation;
- the terms and conditions of the settlement;
- recommendations of counsel;
- future expense and likely duration of litigation;
- recommendations of neutral parties or experts;
- the number and nature of objections from class members;
- the presence of good faith bargaining; and
- the absence of collusion.30
Private arbitration is available as an alternative dispute resolution mechanism to litigated proceedings as long as all parties consent to the procedure. It is not possible for a party to force another to arbitrate (as opposed to litigating before a court or the Tribunal) a matter unless it has agreed to do so.
Some of the advantages of arbitration are the ability to appoint a mutually agreed-upon arbitrator and the ability to keep the arbitration confidential. In respect of class proceedings, it is common for counsel to seek the assistance of professional mediators to resolve class actions. It is not common to arbitrate class proceedings. Whether a representative plaintiff could bind the class to arbitrate as an alternative to a civil trial of the common issues has not been the subject of judicial consideration. However, given the court's role to protect absentee class members, it is likely that any such arrangement would require court approval.
A recent decision of the Supreme Court of Canada held that the standard arbitration clause in a telecommunications contract requiring customers to waive their right to participate in a class proceeding and requiring disputes to be arbitrated was not enforceable on the basis that consumer protection legislation in British Columbia manifested a legislative intent to intervene in the marketplace to relieve consumers of their contractual commitment to arbitration.31 Because many jurisdictions in Canada (including Ontario and Quebec) have consumer protection legislation that invalidates mandatory arbitration provisions in consumer contracts, this decision will likely have application outside British Columbia.
XIV INDEMNIFICATION AND CONTRIBUTION
Issues of indemnification and contribution in the context of cartel litigation have not been addressed definitively by Canadian courts. These issues have arisen to a limited extent in Canadian competition class action litigation where settling defendants, who settle their claims with the plaintiff class in circumstances where co-defendants continue to defend the litigation, seek to limit their exposure to any cross-claims or claims for contribution and indemnity as part of the settlement. In these partial settlements, it is common for the settling defendants to seek a 'bar order' as part of the settlement approval order so as to protect them from claims for contribution and indemnity in the case of an eventual judgment against the non-settling defendants. The reach of such bar orders is frequently subject to significant negotiations in the context of settlement approval motions.
XV FUTURE DEVELOPMENTS AND OUTLOOK
There remains a growing number of competition class actions commenced each year and this area continues to attract the attention of the Canadian class action plaintiff's bar, who are becoming more knowledgeable about the area. To date, no cartel class actions have proceeded to trial on their merits.
Private access to the Tribunal has been less prevalent to date than originally anticipated. It remains to be seen whether with the decriminalisation of price-maintenance activity in this area will see any marked increase.
Previously published in The Private Competition Enforcement Review 2012, (September 2012)
1. Pro-Sys Consultants Ltd v. Microsoft Corporation, 2011 BCCA 186 ('Microsoft') and Sun-Rype Products Ltd v. Archer Daniels Midland Company, 2011 BCCA 187 ('Sun-Rype').
2. Option Consommaeurs v. Infineon Technologies, 2008 QCCA 2136 ('Infineon').
3. Prior to its repeal in March 2009, price maintenance (Section 61) was also a per se offence under Part VI and there are several ongoing class actions that seek damages based on the now-repealed Section 61 of the Act. Prior to the 2009 amendments, geographic price discrimination and predatory pricing were also criminal offences. These former offence provisions remain civilly reviewable.
4. Canada Cement LaFarge v. BC Lightweight Aggregate,  1 S.C.R. 452; Section 36 of the Act.
5. Symbol Technologies Canada ULC v. Barcode Systems Inc, 2004 FCA 339 ('Barcode'), at Paragraphs 16 and 17.
6. R v. Libman,  S.C.J. No. 56 at Paragraph 74.
7. Vitapharm Canada Ltd v. F Hoffmann-LaRoche Ltd,  OJ No. 298 at Paragraph 95 (Ont. Sup. Ct.), affirmed  OJ No. 1400 (Div. Ct.) [Vitapharm] (motion by five of the foreign defendants challenging the jurisdiction of the court).
8. Id. at Paragraph 95.
9. Id. at Paragraph 97. In this case, some of the foreign defendants pleaded guilty to the offence of conspiracy. The court stated that when the alleged conspiracy was proven, there was a real and substantial connection to Ontario with respect to the subject.
10. Club Resorts Ltd v. Van Breda, 2012 SCC 17.
11. Id. at Paragraph 103.
12. Id. at Paragraph 106.
13. Id. at Paragraph 107.
14. Competition Tribunal Rules SOR/2008-141. Section 1 defines person as 'a corporation, a partnership and an unincorporated association'.
15. Competition Tribunal Rules (SOR/2008-141).
16. However, even in Prince Edward Island class actions may be allowed under a local rule of court subsequent to the Supreme Court of Canada's decision in Western Canadian Shopping Centres Inc v. Dutton,  2 S.C.R. 534.
17. If a national class of plaintiffs is certified, it means that all Canadian residents, whether or not they have a connection with the jurisdiction where the class action is certified and who do not opt out, will be included in the class.
18. For instance, see Kelman v. Goodyear Tire & Rubber Co (2005), 5 CPC (6th) 161 (Ont. Sup. Ct.). The British Columbia and Alberta proceedings were stayed on consent pending the outcome of the Ontario proceeding.
19. Canada Post Corp v. LÈpine, 2009 SCC 16,  1 S.C.R. 549.
20. The Class Actions Act, SS 2001, Chapter C-12.01, Sections 6 and 6.1, the Class Proceedings Act, SA 2003, Chapter C-16.5, Sections 5(6) and 5(7).
21. Id. at Paragraph 62.
22. Draft Judicial Protocol released for comment by Canadian Bar Association National Task Force on Class Actions.
23. Pro-Sys Consultants Ltd v. Infineon Technologies AG, 2009 BCCA 503; Quiznoís Canada Restaurant Corporation v. 2038724 Ontario Ltd, 2010 ONCA 466.
24. Competition Bureau immunity programme under the Competition Act, available at: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03248.html.
25. B-Filer Inc v. The Bank of Nova Scotia, 2006 Comp Trib. 42 CT-2005-006.
26. Id. at Paragraph 6. In this case, the tort claim was based on breach of contract, unlawful interfere with economic interests and unfair competition. The court dismissed the plaintiff's application for injunctive relief on the basis that the plaintiff did not show 'a strong prima facie case'.
28. Id. at Paragraph 13. The court stated that 'Injunctive relief in the Alberta decision was denied on the basis of contract law. It has not yet been decided in the context of competition law.'
29. Dabbs v. Sun Life Assurance Co of Canada,  O. J. No. 1598 (Gen. Div.).
31. Seidel v. TELUS Communications Inc, 2011 SCC 15.
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.