Section 79 — Competition Act: Prohibition if abuse of dominant position

On application by the Commissioner or a person granted leave under section 103.1, if the Tribunal finds that one or more persons substantially or completely control a class or species of business throughout Canada or any area of Canada, it may make an order prohibiting the person or persons from engaging in a practice or conduct if it finds that the person or persons have engaged in or are engaging in a practice of anti-competitive acts; or conduct that had, is having or is likely to have the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest, and the effect is not a result of superior competitive performance. If, on an application under subsection (1), the Tribunal finds that a practice of anti-competitive acts amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest 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 persons against whom an order is sought to take actions, including the divestiture of assets or shares, that are reasonable and necessary to overcome the effects of the practice in that market. 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. If the Tribunal finds that a person has engaged in or is engaging in a practice of anti-competitive acts that amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person has a plausible competitive interest and it makes an order against the person under subsection (1) or (2), it may also order them to pay, in any manner that it specifies, an administrative monetary penalty in an amount not exceeding the greater of $25,000,000 and, for each subsequent order under either of those subsections, an amount not exceeding $35,000,000, and three times the value of the benefit derived from the anti-competitive practice, or, if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues. In determining the amount of an administrative monetary penalty, the Tribunal shall take into account any evidence of the following: the effect on competition in the relevant market; the gross revenue from sales affected by the practice; any actual or anticipated profits affected by the practice; the financial position of the person against whom the order is made; the amount that the person against whom the order is made is required to pay under an order made under subsection (4.1); the history of compliance with this Act by the person against whom the order is made; and any other relevant factor. The purpose of an order made against a person under subsection (3.1) is to promote practices by that person that are in conformity with the purposes of this section and not to punish that person. In determining, for the purposes of subsections (1) and (2), whether conduct has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal may consider the effect of the conduct on barriers to entry in the market, including network effects; the effect of the conduct on price or non-price competition, including quality, choice or consumer privacy; the nature and extent of change and innovation in a relevant market; and any other factor that is relevant to competition in the market that is or would be affected by the conduct. If, as the result of an application by a person granted leave under section 103.1, the Tribunal finds that a person has engaged in or is engaging in a practice of anti-competitive acts that amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person has a plausible competitive interest and it makes an order under subsection (1) or (2) against the person, it may also order the person against whom the order is made to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate. The Tribunal may specify in an order made under subsection (4.1) any term that it considers necessary for the order’s implementation, including any term referred to in any of paragraphs 75(1.3)(a) to (g). 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 , Trademarks Act or any other Act of Parliament pertaining to intellectual or industrial property is not an anti-competitive act. No application may be made under this section in respect of a practice of anti-competitive acts or conduct more than three years after the practice or conduct has ceased. No application may be made under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 45 or 49; or an order against that person has been made under section 76, 90.1 or 92. In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.