New Economy Price Predation Appeal is Dismissed

Posted on June 1, 2005

Culhane v. ATP Aero Training Products
Shawn C.D. Neylan

On April 11, 2005 the Federal Court of Appeal dismissed the appeal in Culhane v. ATP Aero Training Products. The case involved alleged predatory pricing in circumstances in which examination guides, formerly sold in a paper format, were made available at no charge on the Internet as a marketing tool. The trial judge had found that such activities amounted to selling a product at an unreasonably low price, but also found the plaintiff could not prove that it had been harmed by this activity. The Court of Appeal found that the trial judge had not made any palpable or overriding error in finding that proof of loss or damage resulting from the alleged predatory conduct was not made out. It therefore dismissed the appeal on that basis. Consequently, the Federal Court of Appeal did not need to address the issue of whether making the examination guides available on-line at no charge amounted to selling the guides at an unreasonably low price within the meaning of the criminal provision in the Competition Act concerning predatory pricing. Stikeman Elliott was co-counsel for the respondent on the appeal.

Tags: , ,

Competition Bureau's Clearance of Rogers-Microcell Wireless Merger Explained

Posted on June 1, 2005

Michael Mahoney

Canada's Competition Bureau (the Bureau) has issued a technical backgrounder summarizing the reasoning behind its clearance of the November, 2004 acquisition of #4 positioned Microcell Telecommunications Inc. (Microcell) by #3 positioned Rogers Wireless Communications Inc. (Rogers Wireless). The deal created the largest (by subscriber base) wireless telecoms provider in the country, and reduced the number of principal wireless competitors to three.1 The backgrounder is noteworthy, because it provides guidance as to how the Bureau is applying the revised Merger Enforcement Guidelines (the MEGs)2 with respect to, among other things, market definition in the fast-moving world of telecoms, co-ordinated effects (or "interdependence") analysis, and the influence (or lack thereof) of a "maverick" firm. It also clearly reveals a forward-looking focus to merger analysis. After a hiatus of several years, the Bureau has indicated that, in the interests of transparency (but bearing in mind confidentiality obligations) it will again be issuing backgrounders on selected cases that raise interesting issues.3

Continue Reading...
Tags: ,

Consent Agreement Process Under Attack

Posted on June 1, 2005

A key aspect of Canada's consent procedure for settling matters with the Commissioner of Competition (the Commissioner) before the Competition Tribunal (the Tribunal) has come under attack. The procedure was streamlined in 2002, with a change from the issuance by the Tribunal of an order on consent, often following a hearing, to the simple registration of a consent agreement - which then has the force of an order of the Tribunal.

There are several differences between the old and the new procedures, one being that supporting evidence is no longer filed with the Tribunal, and another being that the scope for intervention by third parties is (or was thought to have been) significantly narrowed. Previously, intervenors in consent order proceedings could potentially delay them for months, as in the case of Canada (Director of Investigation and Research) v. Imperial Oil Ltd. (1989), 45 B.L.R. 1 (Comp. Trib.), or even derail them altogether. Under the new procedures, potential intervenors are limited to an application to vary or rescind a consent agreement, within sixty days after its registration. In addition, they must show that they are directly affected by the agreement, and that the terms of the agreement "could not be the subject of an order of the Tribunal."

Continue Reading...
Tags: ,