Abuse of dominance (Competition Act)

A buyer may meet this rule when the target is a market leader or holds a strong share against its rivals. The Competition Bureau’s enforcement guidelines, dated March 7, 2019 and so earlier than the 2024 amendments to section 79, say abuse occurs when a dominant firm, or group, engages in a practice of anti-competitive acts, with the result that competition has been, is, or is likely to be prevented or lessened substantially in a market. See whether buying a partnership interest triggers Competition Act notification for the separate merger-review rules.

The elements

Under section 79(1), on application by the Commissioner or a person granted leave under section 103.1, the Competition Tribunal may make an order prohibiting a practice or conduct if it finds that one or more persons substantially or completely control a class or species of business throughout Canada or any area of Canada, and have engaged in or are engaging in either a practice of anti-competitive acts, or conduct that had, is having or is likely to have the effect of preventing or lessening competition substantially in a market in which they have a plausible competitive interest, where the effect is not a result of superior competitive performance. Section 78(1) defines an anti-competitive act as one intended to have a predatory, exclusionary or disciplinary negative effect on a competitor, or an adverse effect on competition. Section 79 has further conditions and exceptions, including subsections 79(5) to (7), so read it in full.

What to ask

• Whether the target has been the subject of a Bureau inquiry or a Tribunal application
• How the target’s market would be defined, and how much control it has
• Which of its commercial practices a competitor could call exclusionary