The Competition Tribunal has no cases before it. Procedural inefficiency is a major reason why.
The Competition Tribunal might be the loneliest adjudicative body in the country. While most other courts and tribunals face significant backlogs, it has currently no cases before it.
In its 33 years of existence, it has not been unusual for the Competition Tribunal to have a relatively modest caseload. But having zero cases at any time is out of the ordinary.
The tribunal issued its most recent ruling on October 17, when it dismissed the application brought by the Competition Bureau against the Vancouver Airport Authority (VAA) in an "abuse of dominance" case under the Competition Act. It rejected the Commissioner of Competition's argument against VAA's decision to authorize only a limited number of in-flight caterers to operate at the Vancouver International Airport.
If the tribunal is handling so few cases, it's partly because "it takes the tribunal a long time to make a ruling," according to Paul Crampton, the Chief Justice of the Federal Court, who spoke at the CBA's Fall Competition Law Conference in October.
"The bar's insistence on [having] all the bells and whistles that they are used to in the superior court system have bogged down the system," he said. "They don't want to give up conventional tools and processes that they have had in place for hundreds of years.
"[They're] losing out because clients don't want to go to the tribunal, and that means the Commissioner has more power," he said, adding that he would like to see a more informal process in matters that come before the tribunal.
The tribunal has taken steps to accelerate the pace of its decisions. It published new practice directions on expedited proceedings in January 2019. Cal Goldman, Chair of the Competition, Antitrust and Foreign Investment Group at Goodmans LLP, noted that it calls for a five-to-six-month filing to hearing timeline under an expedited process—with a decision to follow within a month. The guidelines also set out an active role for the tribunal in case management and a proactive effort to encourage mediation. And the Competition Tribunal/Bar Liaison Committee has worked on ways to expedite cases.
Adam Chisholm, a partner at McMillan, says that the tribunal tends to have only a handful of cases at a time, and many matters are resolved by consent decrees. Furthermore, cases brought by the Competition Bureau tend to wind down near the end of a Commissioner's term, and it can take up to a year for a new Commissioner to ramp up the actions that the resource-strapped bureau intends to pursue. Current Commissioner Matthew Boswell began his five-year term in March 2019.
Lawyers familiar with the tribunal say it has rarely been used to its full capacity. "A long-standing challenge about the tribunal is that people say there's not enough action there, there aren't enough cases there," says James Musgrove, co-chair of McMillan's Competition and Antitrust Practice Group. "We built this wonderful vehicle, and it doesn't go anywhere very often."
According to Michael Koch, Partner at Goodmans, which represented VAA in its matter before tribunal, the dearth of decisions from the tribunal holds back the development of new case law. "Competition lawyers and businesses, in fact, would benefit from there being cases and therefore, there would be jurisprudence that can clarify and help counsel and their clients," he says.
In spite of the complaints about procedural overload, strict procedures are needed to protect all parties, says Musgrove, who is also a member of the Competition Tribunal/Bar Liaison Committee.
"People want cases to move quickly, particularly cases which are time-sensitive. Mergers are the most obvious example but there are other kinds of cases. On the other hand, the stakes are high in many of these cases. They're important issues, and they're complicated cases," he says.
"Most of the matters brought before the tribunal are going to be matters with some public importance," says Chisolm. "And it's going to be important to our clients who will generally be responding to those matters to have them heard with a certain level of procedural fairness."
"I don't think less process would be fair, or a solution to the normative notion of there not being enough cases. In the case of abuse of dominance, a party could be facing an administrative monetary penalty," says Koch.
The tribunal generally addresses two types of cases: reviewable matters under the Competition Act regarding unilateral actions by a single party; and mergers involving two companies.
Koch suggests that the tribunal could be more generous in granting leave to private parties, rather than barring them from bringing private actions—under Section 75 (refusal to deal), Section 76 (price maintenance) and Section 77 (exclusive dealing, tied selling and market restriction). "Either the legal requirement, which I think should still be retained, could be loosened up, in and of itself through legislation, or the tribunal could take a more liberal view of leave," says Koch.
Meanwhile, few merger cases have come before the tribunal in recent years. The absence of significant mergers in the current business environment is one reason. But the tribunal's slow pace of decision-making also puts deals at risk, so parties often make consent agreements to mitigate the likelihood of costly and time-consuming litigation. With an expedited process, Goldman suggests that additional matters could proceed to the tribunal, particularly if there is a specific item that can be heard and decided in a matter of months.
One area where cases could be heard more efficiently is in misleading advertising, which could be resolved through mediation. “It's insane that most misleading advertising cases take as long as they do because they typically just aren't that complicated," says Musgrove
Ultimately, the question isn't so much whether the tribunal is hearing too many or too few cases. Says Koch: "We should be asking: are there cases that should be brought which are not being brought? And what are the reasons for that?"