Stikeman Elliott
Litigation and Advocacy
Competition Litigation

Experience | Activities

Competition litigation is an increasingly active and complex business reality in Canada. The recent amendments to the Canadian Competition Act further expand the range of conduct and the seriousness of the consequences to parties in civil proceedings, including cases before the Competition Tribunal and in court. Stikeman Elliott's competition litigators have the experience, knowledge, judgment and skills to represent our clients effectively in this very dynamic and strategically important area. The Group was recently awarded by Benchmark Canada Litigation the "Competition [Litigation] Firm of the Year" in 2014 and the practice head was named "Competition Litigator of the Year".

Stikeman Elliott's competition litigators represent national and international clients in a variety of competition litigation matters, including:

  • Criminal investigations and proceedings, involving corporations as well as directors, officers and employees, including immunity and leniency applications

  • Defending class actions, which are typically commenced on a national basis mirroring similar U.S. actions and often following Canadian criminal investigations

  • Representing clients who are a merging party, or who oppose a particular merger, both in dealing with the Competition Bureau and then before the Competition Tribunal, on a contested or consent basis

  • Defending clients in contested proceedings before the Competition Tribunal in which allegations of anticompetitive conduct or violations of consumer protection measures in the Competition Act are made by the Commissioner of Competition or, under recent and proposed amendments to the Competition Act, by private individuals in certain areas

  • Making or responding to complaints to the Competition Bureau regarding anti-competitive behaviour in a particular marketplace

  • Commencing or defending private actions or applications brought under the Competition Act and under the common law in which anti-competitive conduct is alleged

Stikeman Elliott's competition litigators have unmatched experience in all of these areas and the strategic judgment and outstanding advocacy skills to secure the best possible results for our clients. We have highly skilled competition litigation counsel who understand the ins and outs of Canadian antitrust law and the practice and approach of the regulatory authorities and who are well-known to the Competition Tribunal and courts at all levels and in all jurisdictions. Our litigators work very closely with our colleagues on the solicitors' side of Canadian antitrust practice, and members of our Group draw on the experience and judgment of the litigation team on a daily basis.

Katherine Kay heads the Group's competition litigation practice and is lead counsel on a broad range of cases dealing with all aspects of competition law, including criminal defence work, class and other civil actions, mergers, abuse of dominance and other reviewable matters before the Competition Tribunal. Ms. Kay was recently awarded "Competition Litigator of the Year" by Benchmark Canada Litigation in 2014. She was also recognized as one of the "100 Women in Antitrust" in the world by the Global Competition Review and was recently described in GCR's Country Survey: Canada as one of the "headline competition litigators" and as "among the most talented and well-regarded in the country", and "arguably the best competition litigator Canada has to offer." She is named in Chambers Global's Guide to the World's Leading Lawyers for Business as a #1 leading lawyer in Canada in Competition/Antitrust: Litigation and was recently described by them as "virtually insurmountable in the area of competition litigation".

Representative Matters

A sampling of Stikeman Elliott's recent competition litigation mandates:

  • Canadian Imperial Bank of Commerce (CIBC) et al. (2014) British Columbia, Ontario, Alberta, Saskatchewan and Quebec (in multiple class actions brought against several financial institutions and credit card companies in British Columbia, Alberta, Saskatchewan, Ontario and Quebec alleging anti-competitive conduct with respect to the imposition of fees to merchants for the acceptance of credit cards. Certification application was argued in British Columbia in 2013 and is under reserve. The proceedings in Alberta, Ontario and Quebec have been stayed pending developments in British Columbia.)

  • Pro Sys Consultants Ltd. v. Infineon Technologies AG., Infineon Technologies North America Corp. et al. (2014) Ontario, Quebec and British Columbia (acting for defendant in class actions commenced in Ontario, Quebec and British Columbia alleging price-fixing conspiracy in computer memory chips called Dynamic Random Access Memory (DRAM). Successfully defeated certification in British Columbia and Quebec at first instance. The British Columbia Court of Appeal overturned the dismissal of the certification motion; leave to appeal to the Supreme Court of Canada was dismissed. The Quebec Court of Appeal reversed the motion judge and authorized the proceeding as a class action, and the Supreme Court of Canada has now granted leave to appeal that decision. The cases in British Columbia and Quebec will move to the next phase. This is the first indirect purchaser price-fixing class action certified in Canada. The case raises many cutting edge issues regarding the test for certification and aggregate damages.)

  • Hi! Neighbour Flooring Covering Co. v. Future Foam (2014) Ontario and British Columbia (acting for defendant in class actions alleging price-fixing of polyurethane foam.)

  • Fanshawe College v. LG Display Co. et al. (2014) Ontario, British Columbia and Quebec (acting for defendants in three provinces in proposed class actions alleging price-fixing conspiracy in LCD panels and products. Contested certification motion has been argued and is under appeal in Ontario).

  • HarperCollins Publishing Inc. et al. (2014) British Colombia, Ontario and Quebec (alleging price-fixing in electronic books.)

  • Fairhurst v. DeBeers S.A. et al. (2013) British Columbia, Ontario, Quebec, Saskatchewan (in a class action alleging price-fixing in Canadian diamond prices and resulting in a jurisdictional challenge in competition class action. The appeal in the British Columbia Court of Appeal was heard and leave to appeal to the Supreme Court of Canada was dismissed.)


Related Practices
Key Contacts

C. Jean Fontaine

Paul Collins
Katherine L. Kay

Nicholas McHaffie

Hein Poulus, Q.C.

Related Publications