unilateral conduct and distribution practices 

 

Distribution practices involving exclusivity, conditional discounts and bundling, amongst others are increasingly being used as competitive tools by leading companies across Canada. Ensuring those practices do not attract legal sanctions is a key concern.

Many common distribution practices may constitute "reviewable conduct" under Canada's Competition Act. If the activity is likely to have an adverse effect on competition, it may draw the attention of the Competition Commissioner. Exclusive dealing, tied selling, price maintenance, "market restriction" and refusals to supply to an existing or potential customer can all be reviewed. Some of these practices can have common law implications or create private rights of action.

McMillan's Competition and Antitrust Group has the expertise to help manufacturers, wholesalers, franchisors, retailers, distributors and other clients legally create and maintain their business relationships with distributors, sales agents and other representatives. We advise clients on exclusivity or restrictive provisions in supply and other agreements, structuring dealer networks, franchise systems and other distribution practices, and terminating customer relationships.

McMillan professionals help clients lead by:
  • Advising on ways to maximize business objectives while reducing legal risks created by the broad provisions of the Competition Act
  • Providing representation when responding to Competition Bureau inquiries and seeking to settle matters with unresolved concerns
  • Defending practices challenged before the Competition Tribunal and in the courts
  • Counseling and defending potentially dominant companies whose distribution practices may be challenged under the abuse of dominance provisions
  • Counsel to MasterCard in connection with the Competition Bureau's challenge to its Operating Rules, and counsel in a series of class actions 
  • Counsel to life insurance industry in Interac abuse of dominance proceeding before the Competition Tribunal
  • Counsel to Polaroid Canada in Polaroid Canada Inc. v. Continent-Wide Enterprises Ltd. market restriction proceeding
  • Counsel to The NutraSweet Company in NutraSweet, the first abuse of dominance proceeding under the Competition Act
December 2014
Competition Bulletin
October 2014
Competition Bulletin
September 2014
Canada Update – Can Patent Non-Use be an Abuse of Dominant Market Position
American Bar Association, Section of Antitrust Law, Unilateral Conduct Committee Newsletter, Monopoly Matters (with D. Anderson & P. Wells)
July 2014
Competition Bureau May Challenge "Product Hopping" as Abuse of Dominance
Toronto Law Journal
June 2014
Update on Distribution and Pricing Practices
Ontario Bar Association
May 2014
Competition Bulletin
May 2014
Canadian Competition Law Review
May 2014
Federal Court of Appeal Delivers Less Clarity on Abuse of Dominance
Toronto Law Journal
April 2014
International Trade Bulletin
2014
Report from Canada
ABA Section of Antitrust Law, Unilateral Conduct Committee, Monopoly Matters Newsletter
February 2014
Competition Bulletin
February 2014
Competition Bulletin
January 2014
The Canadian Competition Tribunal as the Champion of Certainty
Lexpert
2013
ABA Section of Antitrust Law, Unilateral Conduct Committee, Monopoly Matters Newsletter
October 2013
Black Letter Competition Law: The Tribunal Confirms the Rules
CBA 2013 Annual Fall Competition Law Conference
September 2013
"Monopoly Matters", ABA Section of Antitrust Law
June 2013
Competition Tribunal Confirms that Abuse of Dominant Market Conduct requires Acts directed at Injuring or Excluding Competitors
Toronto Law Journal
June 2013
Both Sides Now: A Brief Reflection on the Two Sided Market Debate
Competition Policy International, CPI Antitrust Chronicle Article
April 2013
Competition Bulletin
April 10, 2013
Two Sided Markets in Canadian Competition Law – A Very Brief History
American Bar Association, Section of Antitrust Law, 61st Antitrust Law Spring Meeting
March 2013
New York State Bar Association Conference
January 2013
Competition Bulletin
September 2012
Competition Bulletin
April 2012
Canadian Competition Bureau Releases: Revised Abuse of Dominance Guidelines for Comment
Antitrust and Trade Regulation Report Vol. 102, No. 2544
April 2012
Competition and Antitrust Bulletin/TerraLex Newsletter
March 2012
"Monopoly Matters", ABA Section of Antitrust Law
March 2012
Remedies in Monopolization Cases
"Monopoly Matters", ABA Section of Antitrust Law
August 2011
Mergers, Competitor Collaborations and Distribution Practices in the US and Canada
American Bar Association Annual Meeting
2011
The Price, the Whole Price, and Nothing But the Price
Toronto Law Journal, Vol. 6, No. 7, Summer 2011
April 2011
Antitrust Hot Topics: What the Business Lawyer Needs to Know
Antitrust Committee, Section of Business Law, American Bar Association
September 2010
Joint Ventures Under the Competition Act
Canadian Bar Association, Competition Law Fall Conference
2010
The International Competition Network Unilateral Conduct Working Group - A Brief, Unauthorized, and Idiosyncratic Primer
ABA Section of Antitrust Law, Unilateral Conduct Committee, Newsletter
May 2010
Canadian Competition Bureau v. Canadian Real Estate Association
Toronto Law Journal, Vol. 5, No. 5, May 2010
April 2010
An Antitrust Round-Up for the Business Lawyer: What's New or Developing in the US, Canada, Europe and Beyond
Antitrust Committee, Section of Business Law, American Bar Association
February 2010
Patents vs. Competition Law: May the Best Doctrine Win
Toronto Law Journal , Vol. 5, No. 2
January 2010
Is Your Business Ready for the Latest Changes to Canada's Competition Act?
Association of Corporate Counsel (ACC) Seminar, Montreal
January 2010
Refusal to Deal in Canada: A Primer
ABA Section of Antitrust Law's Unilateral Conduct Committee, International Committee and Distribution and Franchise Committee and the ABA Centre for Continuing Legal Education Teleseminar Series, Distribution Issues in the North Atlantic Triangle: Part III: Refusal to Deal: When Can – and Will – You be Required to Supply
November 2009
Canada's Competition Law
Carrier's Competitive Edge, Canadian Insurance Business Magazine
2009
Canadian Competition Record , Vol. 23, No. 2
April 2009
Sweeping changes to Canada's Competition Act
Co-author (John Clifford, Mark Opashinov and Sorcha O'Carroll), Global Competition Review, April 2009 (Vol. 12 Iss. 4)
October 2008
Competition Law Bulletin
2008
Canada's Competition Law: Guidance for Insurers
ABA Section of Antitrust Law, Insurance Industry Committee, The Insurance Policy Newsletter
June 2008
Distribution Issues in Canadian Competition Law - An Update on Predatory Pricing Part II
Co-authored: Esther Rossman and James Musgrove
Canadian Corporate Counsel , Volume 17, Number 7
May 2008
The Implications of the Recent Decision Of The U.S. Supreme Court in Leegin for Distribution Policies in Canada
Co-authored: Janine MacNeil and James Musgrove
TerraLex Connections
May 2008
The Canadian Law of Price Maintenance and Predatory Pricing - An Update - Part I
Co-authored: Esther Rossman and James Musgrove
Canadian Corporate Counsel , Volume 7, Number 6
April 2008
CCH Corporate Brief & Competition and Antitrust Alert
October 2007
Monopsony and Predatory Buying: The Canadian Landscape is Wide Open
Canadian Bar Association 2007 Annual Conference on Competition Law
October 2007
North American Distribution Arrangements and Price Maintenance Dangers
Co-authored: Esther Rossman and James Musgrove
Toronto Law Journal
September 2007
Til Death Us Do Part: Is the Canadian Law of Refusal to Deal Becoming an Increasing Challenge for Efficient Distribution Arrangements in Canada?
Co-authored: James Musgrove and Janine MacNeil
Distribution, The Newsletter of the Distribution and Franchising Committee, Antitrust Section - American Bar Association Volume 11, Number 2
2007
Lang Michener Competition & Antitrust Brief and International Antitrust Bulletin
2007
Lang Michener Competition & Antitrust Brief
2007
Lang Michener InBrief 
September 2006
The Development of Private Enforcement of the 'Refusal to Deal' Law in Canada
Competition Law Publication by Federated Press
2006
Lilly v. Apotex - The Application of Section 45 to Patent Assignments and Other Issues
Co-authored: Daniel Edmondstone and James Musgrove
Canadian Competition Record , Vol. 22, No. 3
June 2006
Tips and Traps under Competition Law for IP Licensing
by Mark Opashinov and Jonathan Hood for presentation by Mark Opashinov to the Canadian Institute's IP License Agreements Conference, June 2006
May 2006
Responding to the Market Power of Federal Freight Railways
Competition as a driver of change: Proceedings of the 41st Annual Conference of the Canadian Transportation Research Forum
May 2006
Recent Developments in the Canadian Law of Refusal to Deal
Co-authored: James Musgrove and Janine MacNeil
The ABA Newsletter of the Distribution and Franchising Committee, Antitrust Section, Vol. 10, No. 2
April 2006
Important Practical Competition Law Issues in Day-to-Day Transactions: Developments in the Law of Predation, Price Maintenance and Refusal to Deal
Co-authored: James Musgrove and Janine MacNeil
The Advocates' Quarterly, Vol. 31, No. 2
April 2006
Competition & Antitrust Brief
2005
Competition & Antitrust Brief
2004
Canada's Post-Chicago Approach to Predation
British Institute of International and Comparative Law, 2004 Competition Conference
September 2004
Competition Bulletin
August 2004
Advertising & Marketing Bulletin
2004
Stalled on Take Off: Commissioner of Competition v. Air Canada – A Comment
Co-authored: Daniel Edmondstone and James Musgrove
Canadian Competition Record
2004
Pricing Reform: Once More Unto the Breach? (Part II)
8:2 Competition Law 522
2003
Pricing Reform: Once More Unto the Breach? (Part I)
8:1 Competition Law 502
October 2002
CBA Competition Law Conference
2002
Reviewable Practices in the Competition Act: Refusal to Deal (Part I)
Co-authored: C.J. Flavell and Y. Naqvi
Competition Law
2002
Reviewable Practices in the Competition Act: Exclusive Dealing and Tied Selling (Part II)
Co-authored: C.J. Flavell and Y. Naqvi
7 Competition Law 493
2001
Bill C-23 Makes Progress
Co-authored: Daniel Edmondstone and J.B. Musgrove
Canadian Competition Record
November 2, 2000
Report to the Canada Transportation Act Review Panel, Toronto, Ontario, published at the Canada Transportation Act Review
November 2000
American Bar Association Antitrust Section "Distribution in a Global Economy: Internet, B2B and Traditional Issues" Conference
October 13, 2000
Final Offer Arbitration and Competition
Report to the Canada Transportation Act Review Panel, Toronto, Ontario
February 2000
Antitrust Report (co-authored with Nancy Johnson)
March 1999
Insight Conference
1999
Canada chapter - Antitrust Law and Trade Regulation
Matthew Bender, 1999