Competition Litigation

The recent Kobe Mohr v. National Hockey League[1] decision of the Federal Court (the “Decision”) provides important jurisprudential guidance on the application of sections 45 and 48 of the Competition Act (the “Act”).  These provisions prohibit naked anti-competitive conspiracies and conspiracies relating participation in professional sports respectively.

Continue Reading Federal Court Decision Clarifies Scope of Competition Act Conspiracy Provisions

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On July 1, 2021, the Competition Tribunal (the “Tribunal”) ruled that it does not have the power to issue “interim, interim orders” in the context of a proposed merger of two companies in the midstream infrastructure and environmental solutions space. Rather, the Tribunal found that, in the case of mergers, interim relief is limited to that expressly provided for by sections 100 and 104 of the Competition Act (the “Act”).


Continue Reading Competition Tribunal Dismisses Request for Interim, Interim Order

Double Ticketing

Canadian competition law prohibits businesses putting two prices on one product and charging the higher of the two prices.

This concept of double ticketing was first introduced into Canadian law in 1975 to address stores listing two different prices for a single item; however, we are now seeing the concept being extended to

The use of long-term exclusive lease agreements by supermarkets in South Africa has been quite controversial over the last few years.  Unsurprisingly, the impact of long-term exclusive lease agreements on local competition was one of the six objectives to be investigated by the Grocery Retail Market Inquiry[1] (“GRMI”) which was established on 30 October 2015.

In the final report of the GRMI, which was published on 17 December 2019, it was recommended that the Competition Commission (“Commission”) must seek to secure voluntary compliance by the national supermarket chains of the recommendations made.  These recommendations included undertakings by supermarkets not to enforce exclusive provisions in certain instances, that new lease agreements may not contain exclusive provisions and that exclusive lease agreements must be phased out over a period of time.
Continue Reading Reflecting on the phasing out of long-term exclusive lease provisions in South Africa

The COVID-19 pandemic has impacted our lives in countless ways. For example, most of us are now working remotely for our home offices, living rooms or kitchen tables. In-person meetings have been replaced by video calls, email and texts. This is expected to continue for weeks – if not months – as governments at all levels are requesting that Canadians stay home in an attempt to “flatten the curve”.

While statistics aren’t available, it’s reasonable to assume that the number of documents being created and retained by businesses has increased since the pandemic began. In many cases, these documents are likely being drafted quickly and without regard to the tremendous impact that they could have on the business, including in the context of future antitrust investigation or proceedings. A short refresher on document creation – including the problems that bad or hot documents may create – is in order.


Continue Reading Bad Documents – So What’s the Problem?

On March 18, 2020, the Commissioner of Competition (the “Commissioner”) issued an open letter to the executive members of the Canadian Bar Association’s Competition Law Section regarding the impacts of the COVID-19 pandemic on the Competition Bureau’s (the “Bureau”) enforcement processes. In this letter, the Commissioner stated that “the Bureau may … need to prioritize urgent marketplace issues that require immediate action to protect Canadians”. While the Commissioner did not provide specific examples of “urgent market issues”, a subsequent statement issued by the Bureau suggests that these issues include, among other things, deceptive marketing practices relating to COVID-19 and, in particular, false, misleading or unsubstantiated performance claims about a product’s ability to prevent, treat or cure the virus.


Continue Reading A Refresher on Performance Claims

In response to the COVID-19 virus, Canada’s federal government has restricted non-essential travel and closed the US border. Canada’s provincial governments have enacted highly restrictive measures including mandating the closure of facilities providing recreational programs (i.e. gyms), libraries, public and private schools, licensed childcare centres, bars and restaurants, theaters, cinemas and concert venues, and the list goes on. Some provinces have also banned gatherings of more than 5 people and prohibited all non-essential businesses. The status quo is likely to continue for weeks, if not months. While both federal and provincial governments have implemented measures to support businesses during this time, including tax deferrals, increased credit availability, and wage subsidies to help prevent layoffs, these programs, regrettably, may not be enough to keep some businesses afloat.


Continue Reading Refresher on the Failing Firm Defence

Canada’s antitrust/competition, marketing and foreign investment laws continue to apply despite the global health and economic crisis arising from COVID-19. However, the enforcement of these laws are being significantly impacted by the COVID-19 response. These developments are fast moving and change almost daily.

Fasken’s Antitrust/Competition & Marketing Group continues to monitor these developments very closely.

In the recent case of Computicket v the Competition Commission, the Competition Appeal Court was called upon to analyse and explain the standard that must be met to establish an exclusionary abuse of dominance under South Africa’s Competition Act. The case provides insight into important practical and policy questions – what do we mean

The South African Grocery Retail Market Inquiry (“Inquiry”) published its preliminary report on May 29, 2019 (“Preliminary Report”).

The broad finding of the Inquiry is that there is a combination of features in the South African grocery retail sector that may prevent, distort or restrict competition.

For an overview of the key preliminary findings of