Private Access to the Competition Tribunal

Backgrounder

June 21, 2002

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Changes to the Competition Act allow private parties to apply directly to the Competition Tribunal to address matters regarding refusal to deal, tied selling, exclusive dealing and market restrictions (sections 75 and 77). Private access will allow individual businesses, most often small and medium-sized businesses, to deal with local or private matters independently.

Minimizing Strategic Litigation

Stringent safeguards will minimize the risk of strategic litigation:

• a complainant must first seek, and obtain leave from the Competition Tribunal in order to bring a case before it.
• a 15-day period will be provided during which submissions may be made in respect of applications for leave, to provide respondents with adequate time to address the allegations against them in the leave application.
• a case cannot proceed where the Commissioner is investigating or has settled the matter;
• damages (monetary compensation) cannot be sought by the aggrieved party;
• the Tribunal can award full costs against any party in accordance with the Federal Court Rules;
• the Commissioner may intervene in the proceedings;
• an application to the Tribunal must be made no more than one year after the cessation of the conduct in question;
• an economic test is included in section 75 (refusal to deal) requiring the applicant to prove an adverse effect on competition.