Competition Bureau

News & Resources > Public comments > Draft - Information Bulletin on the Abuse of Dominance Provisions as applied to the Telecommunications Industry > VI. Remedies

Draft - Information Bulletin on the Abuse of Dominance Provisions as applied to the Telecommunications Industry: Part 6 - Remedies

Alternative Case Resolutions

If the Commissioner, having investigated a complaint of abuse of dominance, is satisfied that the evidence supports an application to the Tribunal for a remedy, the Commissioner will present to the parties any preliminary concerns regarding the alleged contravention of the Act.  The parties are afforded the opportunity to respond to the Commissioner's concerns and can propose alternative means of addressing those concerns in order to avoid an application to the Tribunal.

Resolution of these matters is dealt with on a case-by-case basis.  In most circumstances, the Commissioner's preference would be to have a remedy agreed upon by the parties affirmed in a consent agreement pursuant to sections 105 and 106 of the Act.  In instances where an alternative (non-litigious) course of action has been adopted to resolve competition issues, the Commissioner will make the resolution public to ensure that all interested parties have been informed of the fact that the matter has been resolved.

6.2 Orders of the Competition Tribunal

Where, on application by the Commissioner, the Tribunal finds that the elements of subsection 79(1) are met, it may make an order prohibiting a respondent firm or firms from engaging in the practice of anti-competitive acts.  In addition, or alternatively, if the Tribunal finds that an order prohibiting the continuance of the practice is not likely to restore competition in the affected market, the Tribunal may, pursuant to subsection 79(2), make an order directing any such actions, including the divestiture of assets or shares, as are reasonable and necessary to overcome the effects of the practice of anti-competitive acts.

In some cases, the Tribunal has explicitly ordered access to certain facilities or services.^[64]  However, access will not improve competitive performance in a market if it is provided at a prohibitive price.  The Tribunal has stated that it does not function as a price regulator, such as through ongoing oversight of rates or access price setting.^[65]  The Bureau also does not have the legislative mandate to act as a binding price regulator in access disputes.  Having said that, the level of the access price would usually be an important consideration in assessing whether a firm is in compliance with the order to provide access.^[66]

Subsection 79(2) gives the Tribunal broad discretion in making orders, and in limited circumstances this has included orders specifying formulas for setting prices.^[67]  However, such orders do not involve ongoing oversight and instead specify what would constitute compliance with the order.  Specific disputes over what would constitute “reasonable” access prices could be resolved through third-party mediation or arbitration

---

[64] For example, see Nielsen, supra note 25 where the Tribunal ordered Nielsen to provide access to scanner data to its competitors. In Canada (Director of Investigation and Research) v. Bank of Montreal, [1996] 68 C.P.R. (3d) 527 (Comp. Trib.) [Interac], the Tribunal addressed the issue of access to a network using a consent order.

[65] Tele-Direct, supra note 38 at 255.

[66] In Tele-Direct, the Tribunal articulated its view that a commission arrangement at a minimum rate of 15 per cent would constitute acceptable compliance with its order prohibiting tying, supra note 38.

[67] For example, in Nielsen, supra note 25, the Tribunal ordered that historical data be provided to the entrant provided that the entrant agreed to pay a price for the data based on a cost-based formula. On consent, in Interac, supra note 67, the Tribunal's order specified a cost-based formula to set the “switch fee” (i.e., the inter-member network user fee).