In a recent article (available to subscribers) published by Global Competition Review, Mark Katz spoke about the application of Canada’s Competition Act to Crown corporations.

Last month, the former owner of a private security company in Québec applied for permission to sue the statutory corporation Bureau of Private Security and Garda World Security, claiming that they abused their dominance in the market and pushed out competitors. The bureau moved to dismiss the claim, arguing that it is not bound by the Competition Act because it exercises regulatory rather than commercial functions.

Mark noted that Canada’s Competition Act specifically provides that it applies to a Crown corporation only “in respect of commercial activities engaged in by the corporation in competition, whether actual or potential, with other persons.”

“As a result, one cannot make a blanket determination that the Act does not apply to an entity simply because it is a Crown agent. The key question is whether the entity is engaged in competitive commercial activities,” he explained.

He added that the Competition Tribunal had dealt with a similar argument involving allegations against the Correctional Service of Canada, but had dismissed the application on the grounds that the dispute in question involved a policy decision rather than commercial conduct.