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pricing and distribution practices
McMillan lawyers regularly advise clients on the lawful use of pricing and distribution practices as a competitive tool. We counsel clients on proper structuring of pricing policies, and other incentives, and help ensure that pricing and distribution arrangements do not attract legal sanctions.
Many common distribution practices may constitute "reviewable matters" under the Competition Act. If the activity is likely to result in a substantial prevention or lessening of competition, or an adverse effect on, competition, the Commissioner of Competition may seek a prohibition or other remedial order from the Competition Tribunal. Exclusive dealing, tied selling, "market restriction" (territorial, customer or other re-sale restrictions) and refusals to supply to an existing or potential customer are all potentially reviewable. Private rights of action can also be initiated with leave of the Tribunal and common law torts may also apply to various distribution practices.
McMillan lawyers have 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 through whom their products are marketed. We advise clients on exclusivity or restrictive provisions in supply and other agreements, structuring dealer networks, franchise systems and other distribution practices, as well as on the termination of customer relationships, to help clients maximize their business objectives while reducing legal risks engendered by these broad provisions of the Competition Act. We provide representation for firms responding to Competition Bureau inquiries and seeking to settle matters with unresolved concerns. We also defend practices challenged before the Competition Tribunal and in the courts.
We also have broad and deep experience in counseling and (where necessary) defending potentially dominant companies whose distribution practices may be challenged under the abuse of dominance provisions.
Representative Transactions/Cases
- counsel to MasterCard in connection with the Competition Bureau's challenge to its Operating Rules
- counsel to life insurance industry in Interac abuse of dominance proceeding before the Competition Tribunal
- counsel to Polariod 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
Publications / Presentations
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June 2011
the Canadian approach to 'passing on' and indirect purchaser claims
Competition Bulletin
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May 2010
Canadian Competition Bureau v. Canadian Real Estate Association
Toronto Law Journal, Vol. 5, No. 5, May 2010
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January 2010
Refusal to Deal in Canada: A Primer
J. Musgrove, J. MacNeil and D. Liddle, 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, January 14, 2010.
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September 2009
Tribunal Decision Affirms Market Power Required in Order to Succeed in ‘Refusal to Deal' Cases
Competition Bulletin
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September 2009
Canada Modernizes Its Resale Price Maintenance Rules
The Antitrust Counselor, Vol. 4.1, The Newsletter of the ABA Section of Antitrust Law Corporate Counseling Committee
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February 2009
Guidance Galore: Selected Comparisons of the Recent U.S., EC and Canadian Abuse of Dominance Enforcement Statements
J. Musgrove at Northwind Professional Institute's, 2009 Competition Law & Policy Forum, February 11-13, 2009.
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