Marginal note:Prohibition where abuse of dominant position
79. (1) Where, on application by the Commissioner, the Tribunal finds that
(a) one or more persons substantially or completely control, throughout Canada or any area thereof, a class or species of business,
(b) that person or those persons have engaged in or are engaging in a practice of anti-competitive acts, and
(c) the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market,
the Tribunal may make an order prohibiting all or any of those persons from engaging in that practice.
Marginal note:Additional or alternative order
(2) Where, on an application under subsection (1), the Tribunal finds that a practice of anti-competitive acts has had or is having the effect of preventing or lessening competition substantially in a market and that an order under subsection (1) is not likely to restore competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all the persons against whom an order is sought to take such actions, including the divestiture of assets or shares, as are reasonable and as are necessary to overcome the effects of the practice in that market.
(3) In making an order under subsection (2), the Tribunal shall make the order in such terms as will in its opinion interfere with the rights of any person to whom the order is directed or any other person affected by it only to the extent necessary to achieve the purpose of the order.
Marginal note:Administrative monetary penalty
(3.1) Where the Tribunal makes an order under subsection (1) or (2) against an entity who operates a domestic service, as defined in subsection 55(1) of the Canada Transportation Act, it may also order the entity to pay, in such manner as the Tribunal may specify, an administrative monetary penalty in an amount not greater than $15 million.
Marginal note:Aggravating or mitigating factors
(3.2) In determining the amount of an administrative monetary penalty, the Tribunal shall take into account the following:
(a) the frequency and duration of the practice;
(b) the vulnerability of the class of persons adversely affected by the practice;
(c) injury to competition in the relevant market;
(d) the history of compliance with this Act by the entity; and
(e) any other relevant factor.
Marginal note:Purpose of order
(3.3) The purpose of an order under subsection (3.1) is to promote practices that are in conformity with this section, not to punish.
Marginal note:Superior competitive performance
(4) In determining, for the purposes of subsection (1), whether a practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal shall consider whether the practice is a result of superior competitive performance.
(5) For the purpose of this section, an act engaged in pursuant only to the exercise of any right or enjoyment of any interest derived under the Copyright Act, Industrial Design Act, Integrated Circuit Topography Act, Patent Act, Trade-marks Act or any other Act of Parliament pertaining to intellectual or industrial property is not an anti-competitive act.
Marginal note:Limitation period
(6) No application may be made under this section in respect of a practice of anti-competitive acts more than three years after the practice has ceased.
Marginal note:Where proceedings commenced under section 45 or 92
(7) No application may be made under this section against a person
(a) against whom proceedings have been commenced under section 45, or
(b) against whom an order is sought under section 92
on the basis of the same or substantially the same facts as would be alleged in the proceedings under section 45 or 92, as the case may be.
- R.S., 1985, c. 19 (2nd Supp.), s. 45;
- 1990, c. 37, s. 31;
- 1999, c. 2, s. 37;
- 2002, c. 16, s. 11.4.
- Date modified: