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Highlights
ABUSE OF DOMINANCE
Measuring Competition Relatively: the Federal Court of
Appeal's Decision in Canada Pipe
Andrew Roman, Andrew Valentine
Andrew Roman and Andrew Valentine
discuss the Federal Court of Appeal's decision in Canada (Commissioner of
Competition) v. Canada Pipe Company Ltd., which overturned the decision of
the Competition Tribunal. The Tribunal had dismissed an application by the
Commissioner of Competition for an order against Canada Pipe Company Ltd., which
the Commissioner believed was engaging in several anti-competitive acts contrary
to sections 79 (abuse of dominance) and 77 (exclusive dealing) of the
Competition Act. The Tribunal had concluded that Canada Pipe, while a
dominant firm within its relevant markets, had not engaged in a practice of
anti-competitive acts and, these acts had not had the effect of substantially
preventing or lessening competition. The Federal Court held that the Tribunal
had misapplied the test for a substantial lessening of competition under section
79, and provided reasons explaining what it believed was the correct test. The
authors consider the Court's formulation of the test and argue that the
formulation of the test is needlessly rigid and will result in a more
deferential approach. It may be hoped that the Federal Court of Appeal is more
deferential in the future to the expertise of the Tribunal than it has been in
Canada Pipe. As the authors note, while the Court's desire for greater
precision in analysis is understandable, the unavailability or incompleteness of
relevant information, as well as the time and effort required to analyze it, may
not justify the modest increment in precision that may result in some
situations.
MERGERS
Gun-jumping and Due Diligence: Reducing Merger
Risks
James Musgrove, François Tougas
James Musgrove and François
Tougas examine the question of pre-merger coordination of conduct among parties
negotiating merger transactions. While this kind of conduct can be problematic,
not all efforts by merging parties to coordinate their affairs in advance of a
merger are unlawful. Companies, in particular in the United States, have faced
large fines for engaging in inappropriate pre-merger conduct. Competition
officials are concerned about coordination before a deal is finalized in order
to prevent combining parties from actually merging their activities before the
merger has been reviewed in accordance with the requirements of the
Competition Act. Such an activity could also result in charges of
conspiracy under the Act. The authors provide practical tips which merging
parties should consider implementing in order to avoid any violation of the
Competition Act before the merger is finalized
and approved.
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Board
C.J. Michael Flavell, QC
Editor-in-Chief
Lang Michener LLP
Alan S. Diner
Barrister & Solicitor
Peter R. Hayden, QC
Lang Michener LLP
H. Martin Kay, QC
Bennett Jones LLP
Yasir A. Naqvi
Lang Michener LLP
Martha A. Healey
Ogilvy Renault LLP
Andrew Roman
Miller Thomson LLP
J. William F. Rowley, QC
McMillan Binch Mendelshon |