Enforcement and Adjudication: Historical Evolution and Current Structure

• Author: John S. Tyhurst
• Pages: 15-72

15

CHAPTER 2

ENFORCEMENT AND

ADJUDICATION:

HISTORICAL EVOLUTION

AND CURRENT

STRUCTURE

A. INTRODUCTION

Canada has h ad competition law since 1889, a year before the f‌irst anti-

trust legislation was passed in the United States. However, there was

soon a marked divergence between America’s forceful embrace of anti-

trust and Can ada’s rather anaemic scheme. The reasons for this included

Canada’s we ak initial leg islation, Canad a’s smaller and tra de-dependent

economy, a diering business and economic culture, and the consti-

tutional structure of the two countries. By the 1960s, it was clear that

Canada’s “combines” regime was badly broken, largely ineective, and

in need of overhaul. Constitutional lim itations had fru strated eorts to

move away from the ineective crimina l law enforcement that lay at the

centre of the problems facing the Canadian law. Reform was, however,

a slow and incremental process. Major rounds of amendments took

place in 1976, 1986, and 2009. With those changes, Canada’s legisla-

tive scheme moved to the forefront of competition law regimes in the

world, armed with the enforcement tools, adjudicative structure, and

substantive tests wh ich make it possible to promote strong and dynamic

competition in the economy. For example, Canada was de scribed in one

journal article as “the leading jurisdiction” in dealing with eciencies

in merger assessment.1

1 Roger Ware & Ralph A Winter, “Merger E ciencies in Canada: Le ssons for the

Integration of Econom ics into Antitrust La w” (2016) 61:3 Antitrust Bulletin 3 65

at 366.

CANA DIAN COMPETITION LAW AND POLICY16

This chapter examines the historical evolution of enforcement and

adjudication of Canadian competition law, and describes the current

structure. The emphasis will be on the institutions governing investi-

gation and adjudication, and the reasons for their evolution over time.

The major changes to the substantive law will be touched upon, but

discussed i n greater detail in later chapters. Table 2.1 below provides a

chronological overview.

Table 2.1. Enforcement and Adjudication of Competition Law:

1889–Present

Period Provisions Investigation Adjudication

–



Criminal:

• conspiracy

AG of Province

(crown prosecutor)

Courts

–



Criminal:

• conspiracy

• combines breaching a Board

order

AG of Province

(crown prosecutor)

Courts

Civil:

• combines: inquiry an d report

only

Ad Hoc Board

–



Civil:

• combines: inquiry, remedial

orders

Board of

Commerce

Board of

Commerce

–



Criminal:

• combines (merger, monopoly,

etc.), conspiracy

Registrar or Ad Hoc

Commissioners

Courts

–



Criminal:

• conspiracy , price discrimina-

tion, predation

AG of Province

(crown prosecutor)

Courts

Civil:

• exemption of agreements

Dominion Trade

and Industry

Commission

Dominion Trade

and Industry

Commission

–



Criminal:

• conspiracy, combines, price

discrimination, predation

Commissioner

or Ad Hoc

Commissioners

Courts

–



Criminal:

• combines (until )

• merger/monopoly (from )

• conspiracy, price discrimina-

tion/predation, resale price

maintenance, trade practices

Director of

Investigation and

Research

Courts

Regimes declared unconstitutional on division of powers grounds

Enforcement and Adjud ication17

Period Provisions Investigation Adjudication

–



Criminal:

• conspiracy, price discrimina-

tion/predation, price mainten-

ance, trade practices, merger/

monopoly

Director of

Investigation and

Research

Courts

Civil:

• refusal to supply, consignment

selling, exclusive dealing, tied

selling, etc.

Director of

Investigation and

Research

Restrictive

Trade Practices

Commission

Civil (private actions):

actions for damages

Plaintif‌f Courts

–

present

Criminal:

• conspiracy, trade practices

• price discrimination/preda-

tion (until )

• price maintenance (until  )

• Director of

Investigation

and Research

(until )

• Commissioner of

Competition

(from )

Courts

Civil:

• merger, abuse of dominance

• refusal to supply, exclusive

dealing, tied selling, t rade

practices, et c.

• consignment selling

(until )

• resale price maintenan ce

(from  )

• Director of

Investigation

and Research

(until )

• Commissioner of

Competition

(from )

Competition

Tribunal

Civil (private actions/

applications):

• actions for damages

• leave application s to the

Tribunal (from )

Plaintif‌f/Applicant Courts ,

Competition

Tribunal

Three main themes will be explored in this chapter:

1) During the f‌irst half-century of competition law in Canada, there

was an evolution of enforcement toward a specialized agency with

increasing resources, powers, and expertise.

2) Since the 1970s, there has been a gradual movement away from

the criminal courts and criminal oences and toward a specialized

civil tribunal to adjudicate a growing number of civilly reviewable

practices.