Litigating conspiracy: an introduction

• Author: Stephen G.A. Pitel
• Profession: Assistant Professor, Faculty of Law, the University of Western Ontario
• Pages: 3-14

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.

3