Litigating Conspiracy: An Introduction

• Author: Stephen G.A. Pitel
• Pages: 3-14

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LITIGATING CONSPIRACY:

AN INTRODUCTION

Stephen G.A. Pitel*

A. INTRODUCTION

The articles in this collection focus on the intersection of competition

law and class actions. They consider the role that class actions can play

in achieving an optimally competitive market for goods and services and

in providing compensation for those who have suffered as a result of

anticompetitive conduct. They examine key issues such as the appropri-

ate test for class action certification and acceptable methodologies for

calculating damages, and in doing so they bring to bear the views of legal

academics, economists, and experienced practising lawyers.

Competition law and class actions intersect primarily because of sec-

tion 36(1) of the Competition Act.1 This section provides that any person

who has suffered loss or damage as a result of conduct contrary to the

provisions of Part VI of the statute has a private right of action to seek

compensation from those persons who engaged in the prohibited con-

duct. Part VI of the statute creates a number of offences for anticompeti-

tive conduct. These include conspiring to unduly restrain or lessen trade,

making false or misleading representations, double ticketing, promoting a

scheme of pyramid selling, and price maintenance.2 As a result of section

36(1), those who engage in these types of anticompetitive conduct face

not only the prospect of prosecution by competition authorities but also

the prospect of private claims for damages.

This private right of action has existed for around thirty years, but

for most of its history it has been used only infrequently to combat con-

spiracies. The harm flowing from most conspiracies to unduly restrain

or lessen trade is diffuse, suffered by many different people across a

given market. This gives rise to complicated issues concerning proof of

* Assistant Professor, Faculty of Law, the University of Western Ontario.

1 R.S.C. 1985, c. C-34.

2 Ibid., ss. 45, 52, 54, 55.1, and 61, respectively.