Private Antitrust/Competition Enforcement

Since the Supreme Court of Canada’s 2013 trilogy of decisions in Pro-Sys, Sun-Rype and Infineon, and its 2019 decision in Godfrey, plaintiffs have had considerable success certifying private antitrust/competition class actions in Canada.   Recent amendments to Ontario’s class action legislation may change that trend. As discussed more fully below, the most significant amendment to Ontario’s class action legislation is to the preferable procedure portion of the certification test that currently requires plaintiffs to prove that a class action would be the “preferable procedure for the resolution of the common issues”. The preferability requirements now include superiority and predominance elements akin to US Federal Rules 23(b)(3).  If interpreted like US Federal Rule 23(b)(3), certification judges will likely engage in a rigorous assessment of whether common questions of law or fact predominate over individual questions, which may, in turn, impair the certification of  private antitrust/competition class actions.

  1. Amendments to the Class Proceedings Act

As discussed in a prior blog post, Ontario Bill 161 Smarter and Stronger Justice Act, 2020 received Royal Assent on July 8, 2020. Bill 161 is omnibus legislation that includes amendments to Ontario’s Class Proceedings Act, 1993 (the “CPA”).  The amendments will apply to proposed class actions commenced after Bill 161 has been proclaimed in force. Bill 161 is not yet proclaimed into force but is expected to be so proclaimed soon in the future.
Continue Reading The New Preferability Requirements in Ontario’s Class Action Legislation: Implications for Private Antitrust/Competition Enforcement

On July 6, 2020, the Competition Bureau (the “Bureau”) published its Annual Plan for 2020-21 titled “Protecting competition in uncertain times” (the “Annual Plan”). The Annual Plan provides specific action items for implementing the Bureau’s 2020-24 Strategic Vision (the “Strategic Vision”) published this February.

As discussed in

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.

Introduction

Following up from Part 1 of our article on the interaction of between privacy and competition law in the economy, Part 2 surveys how competition law enforcers in the United States, European Union, and Canada have addressed both competition and privacy concerns as it relates to data.

A number of significant mergers have

On February 11th, the Competition Bureau published its Strategic Vision for 2020-24. Titled “Competition in the Digital Age”, this document outlines how the Bureau plans to deliver the benefits of competition to Canadians over the next four years in today’s rapidly changing digital economy.

The Strategic Vision includes three key themes

Since the Supreme Court of Canada’s trilogy of decisions in Pro-Sys, Sun-Rype and Infineon, plaintiffs have had considerable success certifying private antitrust/competition class actions in Canada. The province of Ontario’s proposed changes to its class action legislation may change that trend.

On December 9, 2019, the Ontario government introduced Bill 161, the Smarter