Canada: The legal regime of private enforcement - The conditions for success in civil law

In recent years, Canadian competition law has witnessed a renewed interest in private enforcement. Several cases from the Supreme Court of Canada highlighted the fact that indirect and umbrella purchasers could take part in a class action, notably pursuant to Quebec’s civil law. The similarity between Quebec’s civil law and French law leads us accordingly to reflect upon the reasons underpinning the success of private enforcement in Quebec, as well as the lessons that can be drawn for European antitrust law. Seemingly, the origins of this success are primarily procedural in nature. The North American conception of the class action includes a certification step and, in this respect, Quebec is no exception. It is therefore possible to strike a more equitable balance of power between the alleged cartel and the plaintiffs as soon as the class action is authorised. One notable advantage at this stage of the proceedings is that of the less onerous “burden of demonstration” required to prove a right of action. Thus, the right to sue is made possible for multiple class actions. Also, pursuant to the Competition Act the right of private action provides that “any person” may sue a cartel. The language used by the Act at s. 36 allows for broad statutory interpretation, authorising judges to provide legal remedy to all victims of anti-competitive practices.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. Introduction 1. At a time when the European Commission is drawing the first lessons from its Damages Directive [1], there is renewed interest in private enforcement of Canadian competition law, which is rich in lessons learned. 2. In ten years, the Canadian Supreme Court will have ruled on private enforcement cases four times. This is a remarkable achievement considering the modest size of the Canadian market. 3. In 2019, the Supreme Court of Canada issued a major decision on the common law umbrella purchaser class action. The decision welcomed this type of remedy, though not without a dissent expressing concern about the risk of opening up the Canadian

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Benjamin Lehaire, Canada: The legal regime of private enforcement - The conditions for success in civil law, May 2021, Concurrences N° 2-2021, Art. N° 99629, pp. 234-240

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