Blurred Lines: How the Dow v Nova and Royal J&M Distributing Cases May Confuse Remedies Under the Competition Act

Abstract

The authors explore the issue of whether conduct alleged to be contrary to the civilly reviewable provisions of the Competition Act can found a cause of action for conspiracy to injure or under the unlawful means tort. The paper reviews the legislative history of the bifurcation of the Canadian Competition Act and contains a comprehensive summary of relevant jurisprudence, which makes it clear that civilly reviewable conduct under the Competition Act can only be sanctioned by the Competition Tribunal, that such conduct is lawful until or unless the Competition Tribunal finds otherwise, and that it cannot be the basis for damages actions. However, two recent cases from the Ontario Superior Court (Royal J & M Distributing Inc v Kimpex Inc) and the Alberta Court of Appeal (Dow Chemicals Canada ULC v NOVA Chemicals Corporation) create some uncertainty for this settled law. The authors conclude that this development represents a potentially serious challenge to the structure and logical operation of the Competition Act.