Back to the Future: Modernizing Canada’s Monopolization Law

Abstract

Since 2002, Canada’s abuse of dominance law has been moving from the “conduct-effects-remedy” paradigm, established in the 1986 Act, to a “contravention-punishment” paradigm. The conduct-effects-remedy paradigm focuses on finding a remedy where conduct by a firm has anti-competitive effects. By contrast, the contravention-punishment paradigm seeks to punish firms that contravene rules, and thereby deter other firms from contravening those same rules.
The increased administrative monetary penalties enacted in 2022 and proposals to allow damages actions move Canada further down the road to the contravention-punishment paradigm. But this model may not just deter abuse of dominance; it risks also deterring aggressive competition and thus making Canada’s economy less, not more, competitive.
This paper argues that we should return to the conduct-effects-remedy model of the 1986 Competition Act. Then, in order to realize the goal of providing a remedy for conduct that harms competition, section 79 should be broadened to include conduct that causes harm because it is widespread in a market, even if no one firm enjoys the requisite degree of market power.