The Canadian Competition Tribunal (Tribunal) issued its reasons
for denying an application in a recent "refusal to deal"
case. The case, Audatex Canada, ULC v. CarProof
Corporation, is notable because it emphasizes the need for
private litigants to present "non-speculative, cogent
evidence" at the very outset of their case.
Audatex, a supplier of automotive data to insurance companies,
sought leave of the Tribunal to bring an application to compel
parties with access to automotive listings data to supply Audatex
with the listings data. Audatex alleged that the respondents had
engaged in a "refusal to deal."
The Tribunal applied prior case law to assess whether Audatex
had presented evidence showing the "existence of reasonable
grounds for a belief" that Audatex could satisfy each of the
elements of a "refusal to deal" case. This includes an
obligation to demonstrate that Audatex was directly and
substantially affected in its business as a result of the refusal
to deal. The Tribunal found that Audatex had failed to present such
evidence and dismissed Audatex's application, without inquiry
into whether Audatex's evidence established the other elements
of a "refusal to deal" case.
In the U.S. and European Union, pure "refusal to
deal" allegations between customers and suppliers (especially
absent wider allegations of abuse of dominance) have become
increasingly rare. In Canada, the Competition Act contains a
stand-alone "refusal to deal" provision, and it is one of
the few provisions in the statute that gives private litigants the
ability to bring actions directly if they obtain leave of the
Tribunal (i.e., private litigants can only complain to the
Competition Bureau about abuses of dominance, but cannot commence
their own litigation). As a result, "refusal to deal" is
an area of law that is alive and well in Canada.
Obtaining leave of the Tribunal to bring a "refusal to
deal" application under the Competition Act requires that a
private litigant present "non-speculative, cogent
evidence" at the outset of its case, usually in affidavits
attached to its application, of every element of a "refusal to
deal" case. It was the failure to present evidence on one of
these grounds that Audatex's application failed.
The decision pays careful attention to the public policy
purposes of the Competition Act, reasoning that even though the
"refusal to deal" section gives private litigants access
to the Tribunal, the section "is not there to arbitrate
private contractual disputes relating to the supply of a product in
circumstances where the refusal to deal does not result from
insufficient competition and does not have a market
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