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Julie Rosenthal quoted in "Top 10 business decisions of 2019: From orphan wells to Vavilov trilogy", The Lawyer's Daily

February-21-2020

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Excerpt from "Top 10 business decisions of 2019: From orphan wells to Vavilov trilogy", Julius Melnitzer, The Lawyer's Daily

A focus of intense interest among competition law and scholars, this decision from the Competition Tribunal provides several important clarifications and developments relating to the law governing abuse of dominance.

The case dealt with the Vancouver International Airport’s limitation of in-flight catering services to two providers and refusals to grant licences to others. The tribunal ruled that there was no clear and convincing evidence demonstrating that prices would be lower in the relevant market but for the airport’s exclusionary conduct.

The key takeaways are:

  • The determination of who has a “plausible competitive interest” in the relevant market for the purpose of the abuse of dominance provisions is subject to a very low evidentiary threshold;
  • The case marks the first time that the “legitimate business justification” principle has been successfully invoked by a respondent. “The reasons provide crucial guidance as to how the tribunal might apply the principle in determining whether a respondent acted with the requisite anti-competitive purpose,” said Julie Rosenthal, who with colleagues Calvin Goldman, Michael Koch, Richard Annan, Ryan Cookson and Sarah Stothart, formed the Goodmans LLP team that successfully represented the Vancouver Airport Authority; and
  • The “regulated conduct” defence does not apply to the Competition Act’s non-criminal provisions, such as s. 79 abuse of dominance proceedings.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

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