I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION
i Parasitic causes of action under
Plaintiffs in class actions based on violations of the
Competition Act typically plead a number of common law and
equitable causes of action in addition to a claim based on the
statutory cause of action provided for in Section 36 of the
Competition Act. They do so because these causes of action hold out
the potential for greater recovery than Section 36. For example,
Section 36 requires that the plaintiffs prove loss. Waiver of tort,
however, potentially does not require any showing of loss at all.
Similarly, Section 36 is expressly limited to damages that can be
proven, thus ruling out punitive damages. Common law and equitable
claims are not so limited.
The causes of action typically pleaded are unlawful interference
with economic relations, tort of conspiracy, and waiver of tort.
They are parasitic because all (except for one branch of the tort
of conspiracy) depend on a showing of a breach of the Competition
Act as a necessary unlawful element.
Recently, courts have begun to question whether these common law
and equitable claims should be allowed at all. The Competition Act
itself provides for a cause of action for breaches of some of its
provisions, and other remedies for beaches of other provisions. The
question naturally arises therefore: is the recovery provided for
in the Competition Act a complete code, such that these other
causes of action are not needed, and not permissible In Wakelam
v. Wyeth Consumer Healthcare,2 the British Columbia
Court of Appeal held that Parliament intended the Competition Act
to be a complete code, thus excluding remedies apart from those
provided in the Act.
Following this decision, the BC Supreme Court struck claims of
unlawful conspiracy, unlawful interference with economic interests,
and constructive trust in Watson v. Bank of America
Corp,3 but certified a class action against Visa
and MasterCard, major Canadian banks, and other financial
institutions, alleging that the credit card interchange fees and
rules breach the Competition Act. Claims based on breaches of the
criminal price maintenance provisions were statute-barred, since
these provisions were repealed more than two years before the
action was launched, the court held.
However, less than four months later, another BC Supreme Court
judge refused to strike similar claims in a case alleging that
Microsoft conspired with various computer manufacturers to gain a
monopoly over PC operating systems.4 The judge said that
Wakelam conflicted with the recent SCC decision on the
tort of unlawful interference with economic relations in A.I.
Enterprises Ltd. v. Bram Enterprises Ltd.,5 because
that case referred to an earlier case holding that a breach of a
predecessor to the Competition Act could support the tort of
conspiracy. A third BC judge took the same view in Fairhurst v.
Anglo American PLC,6 and certified a class action
alleging that De Beers and diamond companies conspired to fix
prices for diamonds.
The issue is now before the BC Court of Appeal in
ii Class action plaintiffs can obtain wiretap
Class-action plaintiffs can obtain disclosure of wiretap
evidence obtained by the Competition Bureau, the Supreme Court of
Canada held in Imperial Oil v Jacques.7 The
plaintiffs were seeking production from the Competition Bureau of
wiretap intercepts it obtained in the course of its investigation
into retail gasoline price fixing in Quebec. These intercepts were
a critical piece of evidence in a trial of three accused. They
demonstrated that the conspirators used a telephone tree to
disseminate information about price increases.
The Supreme Court rejected two bases advanced by the defendants
for protecting the wiretaps from disclosure. First, provisions in
the Competition Act protecting the confidentiality of information
obtained by the Commissioner did not apply to wiretap evidence.
Second, while the wiretap provisions of the Criminal Code protect
the confidentiality of the wiretaps, they contain an exemption for
their use in court proceedings that applied here.
The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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).