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Instituting An Indirect Purchaser Checkpoint: A Case For Blocking Illinois Brick at the Canadian Border

November-18-2011

Area Competition, Antitrust and Foreign Investment

Summary

Article originally published in Canadian Competition Law Review, 2011 Vol. 24 No. 1:

In contrast to the American antitrust experience Canadian competition laws, for most of their history, have been characterized exclusively by public enforcement.  In Canada, anti-competitive monitoring has largely been left to the Competition Bureau, a governmental agency responsible for responding to complaints, conducting investigations and levying fines on violators.  It was not until 1975, when the predecessor to the current section 36 of the Competition Act was enacted, that private parties were given the
right to seek damages resulting from violations of competition laws.  Section 36 affords any person who has incurred a loss as a result of conduct that the Act deems criminal, to recover an amount equal to the loss proved to have been suffered.  As detailed in Part VI, the Act imposes criminal liability on “Every one who conspires, combines, agrees or arranges with another person to prevent or lessen, unduly, competition in the production, manufacture, purchase… sale… or supply of a product.”  According to this provision, since 1975, injured parties have had the opportunity to recover damages against cartelized companies that have conspired to fix prices.

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