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• Class Actions for Reviewable Conduct Under the Competition Act? No, Not Really, but Sort Of

  Recent years have seen a wave of reforms to the Competition Act being discussed and implemented. That wave has become a veritable tsunami with omnibus legislation introduced in Parliament in November 2023. That legislation proposes a number of fundamental changes to the Competition Act, which have the potential to dramatically impact Canadian businesses. While a detailed discussion of all of the amendments is beyond the scope of this blog post, perhaps the most interesting thing to litigators and businesses concerned about litigation risk, is the creation of what may prove to be a kind of pseudo-class action regime before the Competition Tribunal that ultimately allows consumers to recover losses as a result of certain types of reviewable conduct.

  December 8, 2023
  Paul-Erik Veel
• Rebuck v Ford Provides More Fuel for Defending False Advertising Class Actions

  Historically, many class actions practitioners considered certification the primary fight in a case. It was common that cases would settle not long after certification, so the whole ballgame was perceived to be in the certification motion. Yet with the courts consistently reaffirming the low bar for certification, we are seeing a greater number of class actions determined on their merits after certification. And as the recent case of Rebuck v Ford Motor Company shows, success on certification is by no means a guarantee of success on the merits.

  June 17, 2022
  Paul-Erik Veel
• Is Increased Enforcement of the Competition Act Coming?

  On February 8, 2022, the Competition Bureau released several recommendations for amending the Competition Act in its response to Senator Wetston’s call for submissions on Canada’s competition policy framework. The paper, entitled “Examining the Canadian Competition Act in the Digital Era”, identifies areas that the Competition Bureau believes are ripe for modernization. The paper, and Senator Wetston’s request for submissions, occur during a time when the federal government has indicated an openness to amending the Competition Act. While nothing in the Bureau’s submission has the force of law, the Bureau’s views on these matters will undoubtedly be taken very seriously, and some of the amendments the government is already considering mirror those in the Bureau’s submission. Consequently, the Bureau’s paper provides insight into the future direction of competition law in Canada.

  February 11, 2022
  Paul-Erik Veel

  Katelyn Leonard
• Competition Bureau Prioritizes Greenwashing: Keurig Fined $3 Million Over Recyclability Claims

  The Competition Bureau’s focus on greenwashing continues to grow. This past week, the Bureau announced in a news release that it had reached a $3 million settlement agreement with Keurig Canada Inc. in respect of concerns over misleading and false claims about the recyclability of its single use Keurig K-Cup Pods. The agreement marks a growing trend in enforcement activities against “greenwashing”, the practice of making false or misleading environmental ads or claims about a product’s environmental benefits.

  January 12, 2022
  Paul-Erik Veel

  Mari Galloway
• Can an “Episodic” Price-Fixing Conspiracy be Certified as a Class Action?

  Many price-fixing class actions allege a reasonably uniform conspiracy. The stereotypical scenario alleged is that executives from different companies meet in a dark, smoke-filled room and agree to raise prices or restrain output in some uniform fashion. While that is an oversimplification, and reality is always much more complex, the basic core of most price-fixing allegations is that there was a uniform conspiracy that impacted all, or at least most, consumers in a broadly similar way. This is what has made so many price-fixing class actions amenable to certification.

  April 22, 2020
  Paul-Erik Veel
• My Kingdom for a Horse: Rules Against Price Gouging Come to Ontario

  Laws against price-gouging have come to Ontario. On Saturday, March 28, 2020, the provincial government issued a press release announcing that it was enacting an Order to prohibit price-gouging. The press release announced that that Order “prohibits persons, including retailers, from selling necessary goods for unconscionable prices”. The press release also announced that the definition of unconscionable prices would be “consistent with well-established principles from the Consumer Protection Act.”

  April 1, 2020
  Paul-Erik Veel
• Competition Law in the Time of Coronavirus

  The rapid spread of the novel Coronavirus (COVID-19) is causing significant dislocation to every aspect of our daily lives. For businesses, COVID-19, and the public health responses being taken to try to limit its spread, will have a significant financial impact. Social distancing and self-isolation will result in fewer customers visiting brick-and-mortar retailers, and uncertain economic times will result in an overall drop in consumer demand. Each of these will cause pain for businesses.

  March 17, 2020
  Paul-Erik Veel
• Let it Rain: Supreme Court Green Lights Umbrella Purchaser Class Actions

  On September 20, 2019, the Supreme Court released its long-awaited decision in Pioneer Corp v Godfrey. Godfrey is the Supreme Court’s latest decision involving price-fixing class actions, and expands on and clarifies the basic approach to these cases that the Court laid out six years ago in Pro-Sys Consultants Limited v Microsoft Corporation.

  September 20, 2019
  Paul-Erik Veel
• Confusion over “some basis in fact” rolls on in British Columbia Court of Appeal’s RoRo decision

  Certification is a vital step in every class action.  In order for a class action to be certified, the proposed representative plaintiff must show “some basis in fact” to believe that the certification requirements are met. These requirements include that there are common issues of fact or law and that a class action would be the preferable procedure for resolving those common issues. The Supreme Court of Canada was clear in its decision in Pro-Sys Consultants Ltd v Microsoft Corporation that the some basis in fact standard is less onerous than a balance of probabilities standard. However, how that standard is to be applied remains a source of great difficulty for courts.

  May 31, 2019
  Paul-Erik Veel
• No March Break for Competition, as Bureau Releases New Abuse of Dominance and Intellectual Property Enforcement Guidelines

  March 2019 has been a busy month for the Competition Bureau. On March 7, the Bureau released its updated Abuse of Dominance Enforcement Guidelines. Then, on March 13, the Bureau released its updated Intellectual Property Enforcement Guidelines (“IPEGs”). While neither new enforcement guideline reflects a fundamental shift in the Bureau’s approach to these issues, they provide new guidance and reflect important nuances in the Bureau’s consideration of these issues, particularly regarding abuse of dominance.

  March 14, 2019
  Paul-Erik Veel
• Foreign Discovery in Advance of Certification in a Class Action? Not So Fast, says Divisional Court

  Given the expansive discovery rights available under US law, plaintiffs may be tempted to try to use those rights in pursuit of proceedings under Canadian law. In its recent decision in Mancinelli v RBC, the Divisional Court placed an important limit on the ability of parties to do so. The Divisional Court upheld an order requiring plaintiffs in a proposed class action to obtain Court approval before taking any steps in furtherance of a subpoena issued by an American court.

  April 27, 2018
  Paul-Erik Veel
• Sweet Justice for IP Rights Holder: Agreement not in Restraint of Trade

  The intersection of intellectual property law and competition law is an area that gains greater significance with each passing year. Much of the focus in this area recently has been on the appropriate scope of action to take by regulators. For example, in Canada, the Intellectual Property Enforcement Guidelines promulgated by the Competition Bureau in 2016 have attracted significant attention.

  April 3, 2018
  Paul-Erik Veel
• The regulated conduct defence: we’ll drink to that

  It says something about Canada that many famous cases throughout Canadian legal history relate to the regulation of alcohol.  Through the early 20th century, the regulation of alcohol was a fertile domain for disputes about Canadian federalism.  Now, in the 21st century, the complicated regulatory scheme of governing alcohol sales in Ontario is once again making new law.  This time, however, the dispute is not over arcane principles of federalism, but rather over the scope of the regulated conduct defence to conspiracies under the Competition Act.  While early 20th century federalism cases may be of interest to only a select few, the decision of the Ontario Superior Court of Justice in Hughes v Liquor Control Board of Ontario is likely to attract significantly broader interest, particularly among companies operating in regulated industries.

  March 22, 2018
  Paul-Erik Veel

  Margaret Robbins
• Toll the death knell for class-based public interest privilege in competition proceedings?

  The Competition Bureau relies heavily on voluntary cooperation from corporate Canada in order to enforce the Competition Act. Companies typically want assurances of confidentiality in order to cooperate with the Bureau. In recognition of the fact that companies are less likely to cooperate with the Competition Bureau if commercially sensitive information might be disclosed to third parties, the Competition Act provides a number of confidentiality protections for information acquired by the Bureau from third parties.

  February 6, 2018
  Paul-Erik Veel
• Voluntary Gift Cards: An Effective Strategy for Reducing Liability?

  The recent admissions by supermarket chain Loblaws and a related group of companies that they engaged in conduct to fix the retail price of bread products have drawn significant public attention to price-fixing. And Loblaws’ response to those revelations of price-fixing—including giving consumers gift cards to be used at Loblaws—has also attracted significant interest, not just from the public, but also from businesses and the antitrust and class actions bar. For organizations that have engaged in misconduct looking to make a public response, Loblaws’ actions highlight both the potential benefits and risks of such voluntary remediation.

  January 12, 2018
  Paul-Erik Veel
• Competing Fairly from a Monopoly Position: Six Things to Know about Abuse of Dominance After TREB

  Under Canadian law, many provisions of the Competition Act can only be enforced by the Commissioner of Competition, and not by private parties. That has led to a dearth of jurisprudence, and certainty, regarding the interpretation of several provisions of the Competition Act. For that reason, both major businesses and industry groups will want to take careful note of the recent decision in Toronto Real Estate Board v Commissioner of Competition, where the Federal Court of Appeal gave further guidance as to when a party will be liable for abuse of dominance.

  December 8, 2017
  Paul-Erik Veel
• Absent foreign claimants at the gates of Canadian class actions

  Class actions are almost invariably complicated and expensive matters for businesses to deal with. Such class actions only become more complicated and expensive the bigger the classes are. Now, in Airia Brands Inc v Air Canada, the Ontario Court of Appeal has given the green light to a class action that includes class members all around the world. This decision has significant implications for virtually all multinational businesses.

  October 19, 2017
  Paul-Erik Veel
• Compelling disclosure from the Competition Bureau for use in class actions: where are we now?

  A recurring source of challenging legal problems in the price-fixing class actions, and in class actions more generally, is the issue of what information and evidence the Courts can compel government investigators to provide to private litigants for use in those class actions.

  September 29, 2017
  Paul-Erik Veel
• Umbrella purchasers: Who are they, what do they want, and why are Courts (sometimes) certifying their claims?

  While competition law specialists are familiar with the ongoing debate about umbrella purchaser claims, most Canadian lawyers could be forgiven for wondering what all the fuss is about umbrellas. Far from being individuals who rejected raincoats or ponchos in favour of a more traditional option, umbrella purchasers are now at the center of a heated debate in Canadian competition law.

  August 23, 2017
  Paul-Erik Veel
• A risky rule of thumb for estimating damages in competition class actions

  Using rules of thumb to generate estimates can be very useful in a variety of circumstances: for example, when the detailed information necessary to generate a precise answer is unavailable, or when it’s too difficult to analyze that detailed information.  Lawyers use such rules of thumb in a number of circumstances, sometimes as an initial rough estimate, and sometimes to confirm the results of more detailed analysis.

  January 12, 2017
  Paul-Erik Veel
• Waiting forever for the axe to drop? Discoverability and the limitation period for Competition Act claims

  The limitation period for claims under s. 36 of the Competition Act is a longstanding question of Canadian competition law.  The plain language of the statute suggests that such claims must be brought within two years of the anticompetitive conduct.  But in Fanshawe College of Applied Arts and Technology v AU Optronics Corporation, the Ontario Court of Appeal has reached a conclusion that is much more generous to Plaintiffs, holding that such claims must be brought within two years of the Plaintiff discovering the anticompetitive conduct.

  August 12, 2016
  Paul-Erik Veel
• Supreme Court Offers Guidance on Standard of Review and Efficiency Defence Under the Competition Act

  The Supreme Court in Tervita Corp. v. Canada (Commissioner of Competition) held that a merger between landfill operators would prevent competition but provide efficiency gains, and allowed the deal to proceed. In so doing, it has provided important guidance three issues:

  January 27, 2015