Enforcement and Adjudication: Historical Evolution and Current Structure

AuthorJohn S. Tyhurst
Pages15-72
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.

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