Competition Act

Marginal note:Prohibition if abuse of dominant position

• 79 (1) On application by the Commissioner or a person granted leave under section 103.1, if the Tribunal finds that one or more persons substantially or completely control a class or species of business throughout Canada or any area of Canada, it may make an order prohibiting the person or persons from engaging in a practice or conduct if it finds that the person or persons have engaged in or are engaging in

  • (a) a practice of anti-competitive acts; or

  • (b) conduct

    • (i) that had, is having or is likely to have the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest, and

    • (ii) the effect is not a result of superior competitive performance.

• Marginal note:Additional or alternative order

  (2) If, on an application under subsection (1), the Tribunal finds that a practice of anti-competitive acts amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest and that an order under subsection (1) is not likely to restore competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all persons against whom an order is sought to take actions, including the divestiture of assets or shares, that are reasonable and necessary to overcome the effects of the practice in that market.

• Marginal note:Limitation

  (3) In making an order under subsection (2), the Tribunal shall make the order in such terms as will in its opinion interfere with the rights of any person to whom the order is directed or any other person affected by it only to the extent necessary to achieve the purpose of the order.

• Marginal note:Administrative monetary penalty

  (3.1) If the Tribunal finds that a person has engaged in or is engaging in a practice of anti-competitive acts that amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person has a plausible competitive interest and it makes an order against the person under subsection (1) or (2), it may also order them to pay, in any manner that it specifies, an administrative monetary penalty in an amount not exceeding the greater of

  • (a) $25,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $35,000,000, and

  • (b) three times the value of the benefit derived from the anti-competitive practice, or, if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues.

• Marginal note:Aggravating or mitigating factors

  (3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account any evidence of the following:

  • (a) the effect on competition in the relevant market;

  • (b) the gross revenue from sales affected by the practice;

  • (c) any actual or anticipated profits affected by the practice;

  • (d) the financial position of the person against whom the order is made;

  • (e) the history of compliance with this Act by the person against whom the order is made; and

  • (f) any other relevant factor.

• Marginal note:Purpose of order

  (3.3) The purpose of an order made against a person under subsection (3.1) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person.

• Marginal note:Factors to be considered

  (4) In determining, for the purposes of subsections (1) and (2), whether conduct has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal may consider

  • (a) the effect of the conduct on barriers to entry in the market, including network effects;

  • (b) the effect of the conduct on price or non-price competition, including quality, choice or consumer privacy;

  • (c) the nature and extent of change and innovation in a relevant market; and

  • (d) any other factor that is relevant to competition in the market that is or would be affected by the conduct.

• Marginal note:Exception

  (5) For the purpose of this section, an act engaged in pursuant only to the exercise of any right or enjoyment of any interest derived under the Copyright Act, Industrial Design Act, Integrated Circuit Topography Act, Patent Act, Trademarks Act or any other Act of Parliament pertaining to intellectual or industrial property is not an anti-competitive act.

• Marginal note:Limitation period

  (6) No application may be made under this section in respect of a practice of anti-competitive acts or conduct more than three years after the practice or conduct has ceased.

• Marginal note:Where proceedings commenced under section 45, 49, 76, 90.1 or 92

  (7) No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

  • (a) proceedings have been commenced against that person under section 45 or 49; or

  • (b) an order against that person is sought by the Commissioner under section 76, 90.1 or 92.

• Marginal note:Inferences

  (8) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.