Recent Competition Tribunal Decisions Muddy the Leave Test for Private Access Applications

Posted on September 28, 2004

Kevin Rushton

On July 13 and August 4, 2004, the Competition Tribunal granted leave to Robinson Motorcycle Limited (Robinson) and Quinlan's of Huntsville Inc. (Quinlans) to bring applications against Fred Deeley Imports Ltd. (FDI) under the refusal-to-deal provisions of the Competition Act1. The two decisions bring to four the number of leave applications granted to private parties since amendments to the Act in June of 2002. Unfortunately, these recent decisions appear to cloud the legal and evidentiary thresholds that will be applied by the Tribunal before granting leave.

As noted in the March 2004 edition of The Competitor, section 103.1 of the Act allows private parties to apply directly to the Tribunal to address alleged breaches of sections 75 (refusal to deal) and 77 (exclusive dealing, tied selling and market restriction). Obtaining leave of the Tribunal is a prerequisite to bringing such applications. To date, a total of nine applications for leave have been filed. Of these, the first was denied, four have been granted and the remaining four await decisions by the Tribunal.

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Tribunal Denies CWS Application

Posted on September 28, 2004

On June 28, 2004, the Competition Tribunal denied an application by Canadian Waste Services Inc. (CWS) (Now Waste Management of Canada Corporation) to rescind an October 2001 order under section 92 (mergers) requiring the divestiture of the Ridge landfill in Chatham, Ontario. In May 2003, CWS applied to the Tribunal to set aside the divestiture order under s. 106 of the Competition Act on the basis that the circumstances that led to the making of the order had changed, and that in the present circumstances, the Tribunal would not have made the order. The Tribunal's decision is currently under appeal. Although the Tribunal's recent decision terminated the July 10, 2003 stay of its order to divest the Ridge landfill, on August 6, 2004, the Federal Court of Appeal granted a stay of the divestiture order pending appeal of the Tribunal's recent s. 106 decision. The appeal is scheduled to be heard on November 4, 2004.

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