12 Accountability, Private Rights of Action, and Canadian Competition Institutions

Subject(s):

Fair, reasonable, and non-discriminatory terms (FRAND) — Abuse of dominant position — Unfair trading conditions — Basic principles of competition law — Damages

This chapter examines the enforcement regime in Canadian competition law, focusing on private rights of action. It addresses four questions: Are parties entitled to legal representation in Canadian competition investigations by domestic and/or foreign counsel? Do Canadian competition authorities notify parties of the legal and factual bases of an investigation and any findings by the agency? Do parties have the opportunity for meaningful engagement with Canadian competition authorities? And do courts in Canada provide checks and balances on competition agency decision making? The chapter calls for expansion in the limited private rights that presently exist, both in addressing a wider scope of possibly anticompetitive conduct, specifically around abuse of dominance, and in allowing actions for damages in those contexts. The case for expansion rests in part on the problem in Canada of relatively few decided cases and consequential uncertainty about the law.