Deriving Benefit from Recent Reforms

A Confined Role for the Benefit Derived Remedial Standard

Abstract

Through successive amending bills enacted since 2022, the Competition Act’s civil reviewable conduct provisions, under Part VIII of the Competition Act, have been significantly reformed, with the substantive elements of many provisions altered, private access introduced or expanded and new remedies made available. In connection with the latter, the amendments have introduced an altogether new yardstick for monetary penalties under the Competition Act, namely, the “value of the benefit derived” from the impugned conduct. This paper argues that in calculating financial penalties under these new provisions, while the value of the benefit derived may be codified as a determinant of the maximum available penalty, this does not necessarily establish it as the appropriate benchmark for quantifying the order to be made in any given case. Rather, consistent with the scheme, purpose and development of the Competition Act, the value of the benefit derived will often not be an appropriate consideration in determining the consequences for conduct challenged under the Competition Act’s civil regime. Rather, to guard against the recent Competition Act amendments serving as a disincentive to pro-competitive conduct, the Competition Tribunal must be cautious in tying the financial jeopardy associated with civilly reviewable conduct to the value of the benefit derived from such conduct.