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RESTRICTIVE TRADE PRACTICES - Competition Tribunal - Powers and duties - Competition Tribunal hearings - Evidence

Tuesday, September 19, 2017 @ 2:59 PM  

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Appeal by CarGurus Incorporated from a decision by the Competition Tribunal refusing leave to bring claims. The appellant and the respondent, Trader Corporation, were among approximately ten companies involved in digital marketplaces that aggregated listings for the sale of automobiles. The respondent's business created vehicle listings for automobile dealers, available to other digital marketplaces through a licensing syndication process. In 2015, the respondent received a complaint that the appellant used its listings without permission. The appellant refused the respondent's request to enter a syndication agreement with respect to its listings. The respondent commenced copyright proceedings that were subsequently successful. In the interim, the appellant removed the offending listings and filed a claim with the Tribunal alleging anticompetitive conduct by the respondent that negatively affected its revenue. The Tribunal refused leave to bring the claim on the basis the appellant's evidence of a negative impact on revenue lacked sufficient particulars and credibility. The Tribunal concluded the appellant was not directly and substantially affected by the respondent's conduct. The appellant appealed.

HELD: Appeal dismissed. The Tribunal's determinations regarding the appellant's evidence of its market share was a pure question of fact and therefore was not a proper ground of appeal. The Tribunal did not misapply the test for leave to bring a claim, or improperly impose a heightened evidentiary threshold with respect to the issue of projected harm. The Tribunal's conclusion that the appellant's evidence was insufficient to establish its business was substantially affected by the respondent's practices was reasonable given the unsubstantiated and speculative nature of the appellant's projections. Similarly, the Tribunal did not misapply the test for evaluating the issue of substantial harm, or unreasonably conclude that the appellant's evidence of substantial harm was insufficient. No basis for appellate interference was established.

CarGurus, Inc. v. Trader Corp., [2017] F.C.J. No. 842, Federal Court of Appeal, J. Gauthier, Y. de Montigny and J.M. Woods JJ.A., September 7, 2017. Digest No. TLD-Sept182017003