Canada: Global Competition Review: Private Litigation - Canada

Last Updated: October 13 2015
Article by Mark C. Katz and Chantelle T. Spagnola

1. What is your country's primary competition authority?

The Competition Bureau ("the Bureau") is Canada's primary competition authority. The Bureau is an independent agency within the federal Department of Industry ("Industry Canada"). The Bureau is headed by the Commissioner of Competition ("the Commissioner"), who is appointed by the federal Cabinet.

2. Does your competition authority have investigatory power? Can it bring criminal proceedings based on competition violations?

The Bureau is responsible for administering and enforcing Canada's competition legislation, the Competition Act, R.S.C., 1985, c. C-34 ("the Act"). The Act includes both criminal offences and "reviewable practices" (ie, non-criminal civil matters). The Bureau is responsible for investigating alleged violations of the Act, both criminal and civil. To that end, the Bureau has considerable investigatory powers at its disposal, including the ability to obtain judicially authorised orders to conduct search and seizures (dawn raids), compel the production of documents and responses to interrogatories under oath, examine witnesses under oath, and intercept communications by electronic means (wiretaps).

The Bureau may commence civil proceedings under the Act before a specialised administrative body known as the Competition Tribunal ("the Tribunal"). However, responsibility for conducting criminal prosecutions under the Act resides with the federal Public Prosecutions Service of Canada ("the PPSC"). The Bureau's role in this regard is to refer matters to the PPSC when the Bureau believes the cases warrant criminal prosecution. The decision to prosecute, however, is that of the PPSC.

3. Can private antitrust claims proceed parallel to investigations and proceedings brought by competition authorities and criminal prosecutors and appeals from them?

Follow-on private actions with respect to criminal offences under the Act (see A11 below) may proceed parallel to investigations and prosecutions. It is not mandatory for plaintiffs to wait for criminal proceedings to be completed to commence an action. That said, there are certain evidentiary benefits available to civil plaintiffs where defendants have already been convicted of a criminal offence under the Act (see A5 below).

4. Is there any mechanism for staying a stand-alone private claim while a related public investigation or proceeding (or an appeal) is pending?

The ability to do so is very limited. If a party is charged with a violation of the Act's criminal provisions, that party can bring a motion to stay any related civil proceedings pending the resolution of the criminal proceedings. In order to have the civil proceedings stayed on this basis, the party must show that it would suffer prejudice if it were required to continue the civil case while the criminal proceedings are pending.

5. Are the findings of competition authorities and court decisions binding or persuasive in follow-on private antitrust cases? Do they have an evidentiary value or create a rebuttable presumption that the competition laws were violated? Are foreign enforcers' decisions taken into account? Can decisions by sector-specific regulators be used by private claimants?

The court "record of proceedings" from a criminal prosecution under the Act may be used in a follow-on civil action as prima facie proof that the defendant in the civil action committed the offence in question. Furthermore, any evidence proffered in the criminal proceedings as to the effect of the defendant's conduct may be used as evidence of the same in any follow-on private action. Decisions of foreign enforcers and sector-specific regulators are not of any probative value.

To read this article in full, please click here.

Originally published by Global Competition Review.

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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