On September 20, 2012, Canada’s Competition Bureau (the Bureau) published the final version of its long-awaited Enforcement Guidelines on the abuse of dominance provisions (sections 78 and 79) of the Competition Act (the Final Guidelines). The Guidelines have been more than three years in the making. An initial draft released in January of 2009 was the subject of considerable public comment, but was never finalized. The Bureau released a draft version of substantially revised guidelines for public consultation on March 22, 2012 (the Draft Guidelines). After receiving and reviewing submissions from interested parties, the Bureau has now released the final version, which replaces all of the Bureau’s previous publications on the abuse of dominance provisions.
In general, the Final Guidelines are substantively similar to the Draft Guidelines. There are no significant changes in the Final Guidelines as compared to the Draft Guidelines.
In some areas, the Final Guidelines provide less guidance than did the Draft Guidelines. The Final Guidelines omit a four-part analysis that the Bureau would use to determine whether firms appear to be holding market power as a group that was present in the Draft Guidelines.
A frequent comment on the Draft Guidelines was that they did not provide specific and practical examples of various business practices that would amount to abuse of dominance. Such examples had been part of the prior draft guidelines on abuse of dominance, which as noted were published on January 16, 2009 but never finalized. There was considerable feedback on the Draft Guidelines requesting at least the reinstatement of such examples, if not their expansion. The Final Guidelines do not contain any such guidance.
Notably, the Bureau was also asked to provide guidance regarding when the Bureau would likely seek administrative monetary penalties and how the level of the penalties would be assessed. The Final Guidelines shed no insight on this issue.