71 CBLJ 273

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THE NEW ABUSE OF DOMINANCE TEST: MISSED OPPORTUNITIES AND FUTURE CHALLENGES

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Francesco Ducci

 

ABSTRACT 

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This paper provides a critical assessment of the new abuse of dominance test under Section 79 of the Competition Act. Recent reforms have reshaped Canada’s unilateral conduct regime by introducing a new bifurcated approach that lowers the statutory requirements for the imposition of prohibition orders to a finding of either anticompetitive acts or substantial lessening or prevention of competition (SLPC). The paper argues that these amendments missed a crucial opportunity to resolve long-standing conceptual flaws in Canadian abuse of dominance. In particular, it explains that the anticompetitive act requirement under the old three-part test has always been redundant and resulted in problematic outcomes, such as undue emphasis on intent and harm to competitors. A more coherent reform approach would have eliminated Section 79(1)(b) altogether in favour of a simpler two-part test based on dominance and SLPC. In contrast, the amendments elevate the role of the anti-competitive act requirement, at least for prohibition orders, possibly exacerbating the ambiguities that plagued the abuse test well before the recent legislative changes. For these reasons, future amendments will become desirable if these long-standing problems are further aggravated by the enforcement of the new provision.