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Enforcement Guidelines on:
The Abuse of Dominance
in the Airline Industry
February, 2001
DRAFT
Table of Contents
Enforcement Guidelines on the Abuse of Dominance in the Airline Industry
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Anti-competitive Acts Defined by Legislation and Regulations . . . . . . . . . . . . . . 5
3. The Abuse of Dominance Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Dominance in the Context of the Canadian Airline Industry . . . . . . . . . . . 8
3.2 Market Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2.1 Geographic Market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.2.2 Product Market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3 Practice of Anti-competitive Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4. Anti-competitive Acts in the Airline Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Operating/Increasing Capacity at Fares Below Avoidable Cost . . . . . . . 11
4.1.1 The Avoidable Cost Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1.2 Avoidable Cost Categories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.1.3 Fares and Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1.4 Low-Cost Second-Brand Carrier . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.2 Exclusionary Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.2.1 Pre-empting Airport Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.2.2 Pre-empting Takeoff and Landing Slots . . . . . . . . . . . . . . . . . . . 18
4.2.3 Altering Schedules, Networks or Infrastructure . . . . . . . . . . . . . . 19
4.3 Essential Facilities and Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.3.1 Criteria to Identify Essential Facilities and Services . . . . . . . . . . 21
4.3.1(a)Essential to Provide Service . . . . . . . . . . . . . . . . . . . . . . 21
4.3.1(b)Cannot be Reasonably Replicated or Acquired . . . . . . . . 22
4.3.1(c)Controlled by a Dominant Carrier . . . . . . . . . . . . . . . . . . 23
4.3.1(d)Feasible to Provide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.3.2 Application of the Essential Facilities and Services Regulations 24
4.4 Marketing Conducts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.4.1 Frequent Flyer Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.4.2 Travel Agent Commission Overrides . . . . . . . . . . . . . . . . . . . . . 25
4.4.3 Corporate Discount Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.5 Other Anti-Competitive Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5. Substantial Prevention or Lessening of Competition . . . . . . . . . . . . . . . . . . . . . . 27
6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Annex A - Sections 78 and 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Annex B - Regulations Respecting Anti-competitive Acts of Persons Operating a
Domestic Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Annex C - Section 104.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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ENFORCEMENT GUIDELINES ON THE ABUSE OF DOMINANCE IN THE
AIRLINE INDUSTRY
1. Introduction
1. As part of the Competition Bureau’s (the “Bureau”) continuing efforts to ensure a
transparent and predictable enforcement policy, these guidelines set out the approach
that the Bureau takes in investigating and enforcing new amendments and regulations
(the “regulations”) under the abuse of dominance provisions contained in sections 78
and 79 of the Competition Act (the “Act”) with respect to the Canadian airline
industry. 1
2. The Bureau views the airline regulations that were enacted following the
restructuring of the Canadian airline industry as a ‘code of conduct’ for air carriers.
By publishing these guidelines, the Bureau seeks to inform all industry stakeholders
about the type of conduct which the Bureau is likely to challenge. The Bureau’s
objective in doing so is to facilitate as high a degree as possible of compliance with
the airline amendments to the Competition Act and the related regulations, thereby
minimizing the need for enforcement action under the Act .
3. Following its acquisition of Canadian Airlines in December 1999, Air Canada
became the dominant domestic airline carrier with more than 80% of domestic
passenger traffic and close to 90% of domestic passenger revenues. Given this
degree of market dominance, the Government concluded that additional safeguards,
beyond those available under the existing provisions of the Competition Act and
undertakings provided by Air Canada as part of the merger approval process, were
necessary to protect the competitive process.2 This conclusion was based on the
recognition that not only would a dominant carrier have an incentive to engage in
anti-competitive behaviour, but that certain characteristics of the airline industry (e.g.
1
The full text of Sections 78 and 79 and the regulations defining anti-competitive acts in the airline
industry are reproduced in Annexes A and B respectively.
2
The undertakings provided by Air Canada, which have the force of law with the passage of Bill C-26, can
be viewed at the Bureau’s web site http://competition.ic.gc.ca In part, these Undertakings require Air Canada to,
surrender slots at Pearson International Airport, surrender airport facilities at various airports across Canada, allow
access to its Aeroplan program to competing Canadian carriers, offer interlining and joint fare agreements to
competing Canadian carriers and alter its travel agent override programs to reduce bias in favour of Air Canada.
3
highly mobile assets) would provide an opportunity for it to do so wherever existing
competitors expand or new competitors emerge to challenge its dominance.
4. To address these concerns, the Competition Act was amended to provide authority for
the Governor in Council to specify, by regulations under section 78(2)(a) of the
Competition Act, anti-competitive acts or conduct on the part of a person operating a
domestic airline service as defined in subsection 55(1) of the Canada Transportation
Act. A further amendment contained in section 78(1)(k) relating to access to and
supply of essential services and facilities was also introduced together with authority
for the Governor in Council to specify by regulations services and facilities that are
essential for the purpose of applying this provision. The regulations adopted under
these provisions came into force on August 23, 2000.
5. In addition to these changes, the Act was further amended to allow the Commissioner
of Competition to issue temporary orders in the airline industry under certain
specified circumstances.3 The purpose of this additional power contained in section
104.1 of the Act is to enable the Commissioner to intervene to prevent injury to
competition, the elimination of a competitor or loss by a competitor of significant
market share or revenue between the time when an inquiry under the Act has
commenced and when the matter can be brought before the Competition Tribunal in
the form of an application under section 79.4
6. The undertakings provided as part of the merger approval process are pro-
competitive, legally binding obligations on the part of Air Canada. Any actions taken
by Air Canada and its affiliates which are required by the undertakings would not
constitute “anti-competitive acts” within the meaning of section 79 of the
Competition Act or as defined in the airline regulations. However, compliance with
the undertakings regarding the merger will not otherwise shield Air Canada from the
application of section 79 or the regulations. In addition, implementation of airline
specific amendments to section 78 and the enactment of the regulations does not limit
3
Annex C contains the statutory provision relating to cease and desist powers contained in section 104.1
(1) of the Competition Act.
4
On October 12, 2000, the Commissioner issued a temporary order against Air Canada pursuant to section
104.1. The Competition Tribunal upheld the order in a decision rendered on November 24, 2000. Air Canada is
currently appealing the Tribunal’s decision and has commenced litigation in the Quebec Superior Court to challenge
the authority granted to the Commissioner under section 104.1.
4
the application of the other provisions of the Competition Act, including the existing
provisions under sections 78 and 79, to Air Canada or any other air carrier.
7. The airline regulations refer to anti-competitive acts of a person operating a
“domestic service”. However, in keeping with the existing provisions of section 78,
the Bureau approaches complaints directed against any carriers (domestic or foreign)
on a similar basis and will challenge conduct before the Competition Tribunal based
on the merits of each case.
8. The airline specific amendments and regulations under the Competition Act define
the boundary between legitimate and unacceptable conduct on the part of dominant
airline carriers. In drafting these guidelines, the Bureau recognizes the difficulty
associated with distinguishing anti-competitive behaviour from aggressive, but
beneficial, competition in the marketplace. The Bureau also recognizes the need to
ensure that the application of these provisions does not unduly hinder the competitive
process. The regulations defining anti-competitive acts by a dominant air carrier are
not intended to inhibit Air Canada or any other carriers from competing for the
business of Canadian air travellers. Nor are they intended to protect airline carriers
from competition.
2. Anti-competitive Acts Defined by Legislation and Regulations
9. In summary, predatory, exclusionary and other conduct which have been defined by
regulation as anti-competitive when carried out by a dominant airline carrier include
the following:
(a) operating capacity on a route or routes at fares that do not cover the
avoidable cost of providing the service;
(b) increasing capacity on a route or routes at fares that do not
cover the avoidable cost of providing the service;
(c) using a low-cost second-brand carrier in a manner that is described in
paragraph (a) or (b);
(d) pre-empting airport facilities or services that are required by
another air carrier for the operation of its business, with the object
of withholding the airport facilities or services from a market;
5
(e) to the extent not governed by regulations respecting take-off and
landing slots made under any other Act, pre-empting take-off or landing
slots that are required by another air carrier for the operation of its
business, with the object of withholding the take-off or landing slots from
a market;
(f) using commissions, incentives or other inducements to sell or purchase
its flights for the purpose of disciplining or eliminating a competitor or
impeding or preventing a competitor’s entry into, or expansion in, a
market;
(g) using a loyalty marketing program for the purpose of disciplining or
eliminating a competitor or impeding or preventing a competitor’s entry
into, or expansion in, a market;
(h) altering its schedules, networks, or infrastructure for the purpose of
disciplining or eliminating a competitor or impeding or preventing a
competitor’s entry into, or expansion in a market.
10. In addition, section 78(1)(k) of the Competition Act specifies an additional anti-
competitive act under section 78:
the denial by a person operating a “domestic service”, as defined in
subsection 55(1) of the Canada Transportation Act, of access on
reasonable commercial terms to facilities or services that are
essential to the operation of an “air service” as defined in that
subsection, or refusal by such a person to supply such facilities or
services on such terms.
11. Facilities and services that are essential to the operation in a market of air service are
defined by regulations as those:
(a) that are required in order to provide a competitive air service,
(b) that cannot reasonably or practicably be purchased, acquired,
provided or replicated by another air carrier on its own behalf,
(c) that are effectively controlled by the air carrier who denies access to
them or refuses supply of them, and
6
(d) that can be feasibly provided to another air carrier, having regard
to operational or safety considerations, or legitimate business
justifications of the air carrier referred to in paragraph (c).
12. In addition, the regulations specify that for the purpose of the preceding paragraph,
facilities and services may include, but are not limited to, take-off
and landing slots, interline arrangements, airport gates, loading
bridges, counters and related airport facilities, maintenance services,
and baggage handling infrastructure, equipment and services.
13. It is important to note that, consistent with section 78 of the Competition Act, the
above list of anti-competitive acts is non-exhaustive for the purpose of section 79, the
provision dealing with abuse of a dominant market position. In other words, the
Bureau is not confined to challenging only those practices defined in the regulations or
in section 78. Similarly, the Tribunal is not limited to only making orders about these
practices.
14. The abuse of dominance provisions provide broad powers of remedy to the
Competition Tribunal. Where the Tribunal finds that the elements of section 79 are
met, it may make an order prohibiting a respondent firm or firms from engaging in the
practice of anti-competitive acts. In addition, or alternatively, if the Tribunal
concludes that such an order may not be adequate to restore competition, it may make
an order directing any such actions, including the divestiture of assets or shares, as are
reasonable and necessary to overcome the effects of the practice of anti-competitive
acts.
15. The role of the Competition Bureau is to carry out investigations under the
Competition Act having regard for the public interest associated with competition.
With the exception of the Commissioner of Competition’s limited authority to issue
temporary orders in respect of the airline industry, the Bureau does not have the
authority to directly compel change in business behaviour. In order to do so, it must
make an application to the Competition Tribunal and take on the role of a litigant.
3. The Abuse of Dominance Provision
16. Abuse of a dominant position occurs when a dominant firm in a market, or a dominant
group of firms acting together, engage in conduct that is likely to eliminate or
7
discipline a competitor or to deter future entry by new competitors, resulting in
competition being substantially prevented or lessened. Section 79 is not intended to
prohibit dominance or the presence of market power. Rather, the section seeks to
address the “abuse” of a dominant market position to substantially prevent or lessen
competition.5
17. Section 79 sets out the following three essential elements, all of which the
Competition Tribunal must find to exist for it to grant an order:
1. one or more firms are dominant in that they substantially or completely
control a class or species of business;
2. the firm, or firms, have engaged in or are engaging in a practice of
anti-competitive acts;
3. the practice of anti-competitive acts has had, is having, or is likely to
have the effect of preventing or lessening competition substantially in a
market.
18. When the Bureau receives a complaint, a determination will be made as to whether the
complaint is likely to warrant a formal inquiry under the Act. Making this
determination requires reason to believe that a practice of anti-competitive acts has
occurred which is likely to result in a substantial prevention or lessening of
competition. Assessing the requisite reason to believe will usually require the
provision of information from the complainant as to the specific conduct being
complained about and its impact on competition. Once the Bureau establishes
grounds for an inquiry, the Bureau can invoke formal powers under the Act to require
the production of the relevant information from all market participants.
3.1 Dominance in the Context of the Canadian Airline Industry
19. The first factual question that the Bureau must address when examining an allegation
of abuse is whether an air carrier is dominant in that it “substantially or completely
5
Based largely on the jurisprudence emanating from the Competition Tribunal, the Bureau will shortly be
publishing a bulletin outlining in detail its approach to enforcing these provisions. Accordingly, while this
document deals specifically with the Bureau’s approach to enforcement of specific amendments and regulations
with respect to the airline industry, readers should also refer to the general enforcement guidelines with respect to
sections 78 and 79 for further information and guidance.
8
controls, throughout Canada or any area thereof, a class or species of business.”6 For
the purposes of enforcing section 79, the Bureau treats the elements “class or species
of business” as being synonymous with a relevant product market. Likewise, it sees
the element of “throughout Canada or any area thereof” as being synonymous with a
relevant geographic market.7
20. The Bureau considers “substantially or completely control” in section 79, or
dominance as it is commonly referred to, to be synonymous with market power. To
determine whether a firm possesses market power, the Bureau assesses a number of
qualitative and quantitative factors, the most important of which are market share and
barriers to entry. The Bureau’s view, given the high barriers to entry, is that a national
carrier that dominates the overall airline industry in Canada establishes the basis for a
prima facie finding of dominance regardless of its actual presence in any one regional
or local market. Barriers to entry include regulatory barriers related to foreign
ownership and cabotage.
3.2 Market Definition
21. When assessing whether a particular airline is dominant the Bureau examines whether
there are existing competitors that are likely to constrain the ability of the firm or
firms to profitably raise prices, maintain high prices or otherwise restrict competition.
Identifying all competitors faced by an airline requires identifying both the geographic
areas over which firms are competing (geographic markets) as well as the types of
competing services (product markets).
3.2.1 Geographic Market
22. An origin-destination city-pair will generally constitute a geographic market for the
purposes of analysing the airline industry.8 While the relevant geographic market may
6
It is not necessary that the practice of anti-competitive acts take place within Canada, but that its impact
has an effect in Canada.
7
The market may, for antitrust purposes, include regions outside Canada.
8
In the Gemini II case, the Competition Tribunal stated in discussing the geographic dimension of airline
markets that “an airline market is defined as a city-pair”.Canada (D.I.R.) V. Air Canada, (1993) 49 C.P.R. (3d) 7at
40 (Competition Tribunal).
9
frequently contain only one origin airport and one destination airport, this is not
always the case. When two airports are in reasonable proximity to each other (e.g.
Pearson International Airport and Hamilton International Airport), it is possible that
travel to or from one airport could be considered to be a substitute for travel to or
from the other for some portion of travellers.
23. Whether or not travellers consider two airports to be substitute origins or destinations
depends on several factors, including how passengers are distributed geographically in
the area, the ease of travel to each airport and the amount of time required to travel to
each airport, the airlines serving each airport, the flight schedules at each airport, the
schedules and availability of connecting flights and differentials in available fares. In
addition, the origin or destination area is more likely to include multiple airports when
the distance between the origin and destination areas is greater. For example, while
customers may be willing to drive for one hour to an alternative airport when the time
of air travel is five hours, the same passengers may be unwilling to drive the hour if
the flight time is less than an hour.
3.2.2 Product Market
24. As a rule, it is expected that air transport will be considered to be in a separate market
from other modes of transportation unless the distance to be travelled is very short.9
For example, a passenger might substitute bus for air travel when travelling from
Ottawa to Montreal, but would be unlikely to substitute bus for air travel when
travelling from Ottawa to Vancouver. In addition, the Bureau may consider business
travel as a different market segment than leisure travel due to their different demand
characteristics.
25. Depending upon the time-sensitivity of passengers, the overall length of the trip and
the fare differential, passengers will be less likely to substitute one-stop or multiple-
stop service for a non-stop service . Hence, these services could be found to
constitute separate product markets.
9
In the Gemini II case, the Tribunal accepted that the relevant product market can be defined as passenger
airline service.
10
3.3 Practice of Anti-competitive Acts
26. Having defined relevant product and geographic markets and determined that
dominance exists, the second element required under section 79 is to establish that
the firm or firms in question have engaged in a “practice of anti-competitive acts.”
The word “practice” is normally taken to mean more than an isolated act. Within the
meaning of section 79 and as reflected in the jurisprudence, a “practice” can
encompass one occurrence that is sustained or systematic over a period of time, or a
number of different acts taken together that have an anti-competitive effect.
4. Anti-competitive Acts in the Airline Industry
27. What follows is a discussion of the Bureau’s interpretation of the specific airline anti-
competitive acts referred to in section 78(1)(j) and 78(1)(k) of the Competition Act
and the Bureau’s approach to ascertaining whether they have taken place.
4.1 Operating/Increasing Capacity at Fares Below Avoidable Cost
28. The Regulations 1 (a), (b) and (c) define the following behaviour as anti-competitive
acts:
(a) operating capacity on a route or routes at fares that do not cover the
avoidable cost of providing the service;
(b) increasing capacity on a route or routes at fares that do not cover the
avoidable cost of providing the service;
(c) using a low-cost second-brand carrier in a manner that is described in
paragraph (a) or (b).
29. For the airline industry, the regulations state that operating or increasing capacity on a
route or routes, at fares that do not cover the avoidable cost of providing the service
constitutes an anti-competitive act.
30. The pricing and capacity decisions of a dominant carrier will have an anti-competitive
effect if they result in higher prices and reduced output due to the elimination or
disciplining of a rival, or the exclusion of a potential rival. For example, a dominant
airline may offer a large number of seats at low fares on a route on which it faces
11
competition. As a result of this conduct, one or more of the airline’s competitors may
be driven from the market. Such conduct may also deter remaining airlines from
engaging in aggressive fare competition, or deter other airlines from entering routes
on which the incumbent airline operates. As another example, a dominant airline
may increase capacity on a route in such a way as to attract passengers from a rival
carrier, while not attracting a sufficient number of passengers to cover its avoidable
costs.
31. In the Bureau’s experience most complaints under regulations 1 (a), (b) and (c) will
come from established carriers or new entrants alleging that the dominant firm has
responded to their entry or expansion in a market by “targeting” them with lower
prices or some other competitive variable. While the Bureau closely examines
allegations of targeting, the focus of the Bureau’s inquiries is whether the revenues
earned from passenger fares, cargo services and other sources are sufficient to cover
the avoidable cost of the dominant carrier in providing the service.
32. The practice of operating capacity at fares that do not cover the avoidable cost of
providing the service does not require that the fares charged by the dominant airline
be lower than the fares set by the competitor in order to be considered anti-
competitive. Airlines differ in many ways, such as in the quality of service they
provide, the schedule they offer, and their frequent flyer programs. The Bureau does
not consider that matching the dollar price of a competitor for travel on a specific
flight is the same as charging the same real price for the same quality and quantity.
An airline with a superior frequent flyer program or schedule could meet the dollar
price of a competitor, and in fact force the rival to set substantially lower fares to
attract customers. Price matching can be anti-competitive, where the revenues earned
by the service fall below the avoidable cost of providing the service.
4.1.1 The Avoidable Cost Test
33. To apply the avoidable cost test, the Bureau compares the revenues earned as a result
of providing a service to the avoidable costs of providing that service. Avoidable
costs refer to all costs that could have been avoided by the dominant airline had it
chosen not to offer the service in question. If the revenues the dominant airline earns
from the service do not cover the avoidable costs of a particular service, then the
Bureau would conclude that the airline is engaging in anti-competitive conduct.
12
34. In the airline industry, the relevant unit of capacity for cost and revenue analysis is a
flight. Carriers adjust capacity by adding and subtracting flights or by changing the
size of the aircraft used to provide the service. Carriers can and do cancel badly
performing flights such as those with low load factors and those with revenues that do
not cover cost. Badly performing flights are sometimes removed from a route even if
the overall route is profitable. Alternatively, a carrier could maintain an unprofitable
flight on an otherwise profitable route for the purpose of drawing passenger traffic
away from a rival carrier. The latter act could lead to the disciplining or elimination
of a competitor from the route.
35. Under the avoidable cost test, the Bureau considers whether the revenue from each
flight on a route covers the avoidable cost of the flight on a daily basis for a period of
at least a month. For the purpose of these Guidelines, the term ‘flight’ is used by the
Bureau to refer to departures on a city-pair route which occur at identical or similar
times.10 Because of the common costs incurred in providing airline service, the
Bureau does not consider it appropriate to conduct the avoidable cost test by
comparing a particular fare with the avoidable cost of a flight averaged over all the
seats in the aircraft.
36. For example, suppose that an airline has responded to entry by adding a new flight to
a route on which it has previously offered service. In computing avoidable cost, the
Bureau would consider all costs that the airline had to incur to offer the additional
flight. These would include all costs that vary with the number of passengers served,
as well as those costs that need to be incurred to operate the flight but that do not vary
with the number of passengers carried on the flight.11
37. As a general rule, rather than focus on a specific fare class, the cost-revenue analysis
under the avoidable cost test will be applied to flights. In this regard, the Bureau
recognizes that a carrier such as Air Canada has numerous fare categories on any
given flight. Rather than focus on a specific fare class, the relevant issue is whether
10
For example, a daily departure at 8:00 a.m. would be considered a flight.
11
This particular example deals with the case in which an airline adds a flight in response to new entry.
However, the same type of calculation can be made in the case where an airline maintains capacity in the face of
entry.
13
the total revenue earned from a flight is sufficient to cover the avoidable cost of
providing the flight.
38. Avoidable costs that vary with the number of passengers served would include costs
such as passenger commissions, some portion of fuel and oil expense, food and
supplies. Flight specific fixed costs are also avoidable unless they would still be
incurred or could not be reallocated in the event the flight is cancelled. These would
include base fuel, flight and cabin crew costs, aircraft costs, navigation fees, landing
fees, maintenance labour and aircraft service labour.
39. Avoidable costs would not include any common costs that the airline needs to incur
to offer service beyond the flight in question. For example, common costs may
include fixed overhead costs, such as maintenance facilities, corporate offices, and
executive salaries that are required to offer any service from a particular city.
40. Whether a cost is considered avoidable will depend on the length of time required by
the airline to adjust its schedule and its capacity in the market. In some cases, an
incumbent carrier might anticipate where and when entry will occur several months in
advance of the actual commencement of the entrant’s service. An incumbent carrier
might add a flight in a market in anticipation of a rival carrier’s entry. Or a flight
might be maintained in a market when it would otherwise have been cancelled in the
absence of an entry threat. In these cases, the incumbent carrier’s aircraft costs and
other associated flight specific costs will likely be regarded as avoidable for a flight.
41. With respect to the “fares that do not cover the avoidable cost of providing the
service”, the Bureau examines whether the revenue generated by the fares for a given
flight cover the avoidable cost of the flight. The Bureau carries out its
revenue/avoidable cost comparison on a daily basis. For a given flight the Bureau
considers whether that flight’s average daily revenues over a month cover its
avoidable costs, as well as the number of times that flight’s revenues did not cover its
avoidable costs.12
12
For example, consider a flight departing daily at 8:00am from Halifax to Toronto for the month of
October. The Bureau, would determine both daily flight revenue and avoidable costs on an Available Seat Mile
(ASM) basis. The Bureau would consider whether the average revenue per flight for October covered its avoidable
costs. In addition, the Bureau would consider the number of times during October that the flight’s daily revenue did
not cover its avoidable costs.
14
15
4.1.2 Avoidable Cost Categories
42. The following table illustrates how the Bureau is likely to categorize various costs as
either avoidable or unavoidable with respect to the airline’s decision to cancel or add
a flight. As shown below, costs are grouped into four general categories: outright
avoidable, avoidable through redeployment, potentially avoidable and unavoidable.
Note that some costs are not exclusive to one category. For example, aircraft costs
could be avoidable either outright through sale or through redeployment to other
routes.
Cost Category Examples Discussion
Outright Avoidable - Travel Agent Commissions The airline would no longer incur the cost
for these items in the event that it
- Fuel and Oil expenses
cancelled a flight. Similarly, if a flight
- Navigation Fees was added these costs would need to be
- Landing Fees incurred.
- Aircraft costs
Avoidable through - Flight crew labour These costs are avoidable in the sense that
redeployment upon cancelling a flight, the airline would
- Cabin crew labour
likely redeploy the aircraft and crew to an
- Aircraft costs alternative route. Similarly, if a flight was
added the airline would likely redeploy
the needed aircraft and crew from another
route.
Potentially Avoidable - Maintenance labour To the extent that these costs are specific
to a flight and could be either avoided
- Ticketing agent labour
outright, or avoidable through
- Baggage handler labour redeployment of labour to another route,
- Reservation labour they would be considered avoidable.
Unavoidable - Executive salaries These costs are not specific to a flight and
thus are unavoidable in the event that a
- Building expenses
flight is added or cancelled.
- General overhead
16
4.1.3 Fares and Revenues
43. A flight’s revenue consists in part of revenue from passengers just flying between the
airports serving the route under examination. It also consists of the prorated portion
of revenue obtained from passengers that are travelling beyond the destination airport
serving the route under examination or that begin a trip at an airport different form the
origin airport serving the route in question. The proration can be calculated on the
basis of the proportion of total distance travelled represented by the origin-destination
route in question. It can also be calculated as the proportion of total (separate
segment) economy fare revenue represented by the economy fare of the origin-
destination route in question. The Bureau generally uses a carrier’s prorate formula to
allocate revenue generated by through or connecting passengers to a particular route
provided the Bureau can verify that the formula is normal business practice and
consistent with general industry practice. Finally, the Bureau also includes cargo and
miscellaneous (e.g. bar service) revenue in its calculation of revenue generated by a
flight.
4.1.4 Low-Cost Second-Brand Carrier
44. In the case of a dominant carrier introducing a low-cost second-brand carrier, as
described in regulation 1 (c), the Bureau will take a similar approach to determine
whether or not it is operated below avoidable cost. Moreover, should the Bureau
receive a complaint that leads it to believe that the dominant air carrier is using a low-
cost second-brand carrier to engage in an anti-competitive act, it will closely examine
the low-cost carrier’s costs to determine whether it is receiving the benefit of any
cross-subsidy from the mainline carrier for services or other inputs to its operations
that would facilitate anti-competitive behaviour.
45. A cross subsidy from the mainline carrier could take the form of cost shifting from the
low-cost carrier to the mainline carrier. This would result in an understatement of the
low-cost carrier’s true economic costs of operation. It could be done to signal a
potential entrant that its costs are lower than they really are, or to pass an avoidable
cost test. The Bureau compares a low-cost second-brand carrier’s costs to those of
the mainline carrier with an eye to determining whether reported cost differences are
real.
17
4.2 Exclusionary Conduct
46. Regulations 1 (d), (e) and (h) define the following exclusionary conduct as anti-
competitive-acts:
(d) pre-empting airport facilities or services that are required by another air
carrier for the operation of its business, with the object of withholding the
airport facilities or services from a market;
(e) to the extent not governed by regulations respecting take-off and
landing slots made under any other Act, pre-empting take-off or
landing slots that are required by another air carrier for the operation
of its business, with the object of withholding the take-off or landing
slots from a market;
(h) altering its schedules, networks, or infrastructure for the purpose of
disciplining or eliminating a competitor or impeding or preventing a
competitor’s entry into, or expansion in, a market.
47. Exclusionary conduct is conduct by an incumbent firm to keep potential rivals from
entering its markets or to keep existing rivals from expanding in one or more markets.
For example, the incumbent firm may take control, on a pre-emptive basis, of
essential inputs, services, or facilities required by a rival firm to compete with the
incumbent, raising a rival’s costs of providing a good or service, or contracting with
customers so as to preclude them from becoming customers of a rival firm.
4.2.1 Pre-empting Airport Facilities
48. In the Bureau’s view, the anti-competitive act defined in regulation 1 (d), “...pre-
empting airport facilities or services that are required by another air carrier for the
operation of its business...”, is meant to apply when a dominant carrier obtains access
to and control of certain airport facilities or services (e.g., gate space, counter space,
baggage handling facilities) before a competing carrier has an opportunity to enter
into or expand in the market. “Market pre-emption” usually carries with it the idea
that an investment is being made before it can yield a positive return on a flow basis.
Hoarding of inputs essential for the production of a good or service, in order to keep
them from being used by a potential rival, would be a pre-emptive act if the inputs
were not immediately contributing towards higher returns for the firm. In other
words, the firm would have acquired the essential inputs or production capacity in
18
excess to its present requirements in order to keep new entrants out of the market. By
pre-empting the market and keeping new firms from entering, the dominant carrier
will be able to charge higher fares and earn higher profits than would have been
possible if new entry did occur.
4.2.2 Pre-empting Takeoff and Landing Slots
49. The anti-competitive act defined in regulation 1 (e), “. . . pre-empting take-off and
landing slots that are required by another air carrier for the operation of its business . .
.”, is similar to anti-competitive act described in the previous paragraph in that pre-
emption is the act. However, airport slots have been distinguished from airport
facilities and services, in part, because they may be regulated. An airport slot is a
scheduled time of arrival or departure available or allocated to a particular airline on a
specific date at an airport. A dominant carrier’s pre-emption of slots would entail
acquiring control of slots that it had no immediate use for, but that it wished to hold in
order to keep entrants out of the market. If the carrier had to use the slots in order to
maintain control of them, it might be able to schedule some service in the slots just to
occupy them (even if the service operates at a loss).
50. Pre-emption of the latter type could be referred to as pre-emptive scheduling. It
involves the expansion of capacity in the market at a time before it can generate at
least a competitive rate of return on a flow basis. In the absence of potential entry by
a new carrier into the market, the incumbent carrier would have no incentive to
expand capacity prematurely because its overall profits would be higher by delaying
the increase in service until market growth justified it. It is the threat of new entry
that drives the incumbent to expand its capacity, and the capacity expansion acts as an
entry barrier. In the presence of a “use it or lose it” slot allocation policy, the Bureau
determines whether a dominant carrier has preempted take-off and landing slots on
the basis of whether the carrier is covering the avoidable cost of offering the service
in the slots for which pre-emption is alleged. It should be noted that for pre-emption
of take-off or landing slots to be an anti-competitive act, it must be done with the
object of withholding the take-off or landing slots from a market.
51. Pre-emption of slots could adversely affect competition at airports where the
preempted slots are arrivals or departures during the peak travel periods, or at airports
that are slot constrained. Currently, Toronto’s Pearson Airport is the only Canadian
19
airport that faces slot constraints. However, slot constraints could develop at
Vancouver or Dorval airports in the future.
4.2.3 Altering Schedules, Networks or Infrastructure
52. Finally, regulation 1 (h) states that it would be anti-competitive for the dominant
carrier to alter its schedules, networks, or infrastructure for the purpose of disciplining
or eliminating a competitor or impeding or preventing a competitor’s entry into, or
expansion in, a market. The Bureau does not regard changes in the dominant firm’s
network, schedule or infrastructure facilities in the normal course of business as
necessarily or even usually anti-competitive. However, the Bureau would be
concerned about changes in the dominant carrier’s network, schedule or infrastructure
facilities for which an anti-competitive purpose and effect had been identified and for
which no valid business reason had been articulated.
53. As an example, assume a rival carrier has negotiated an interline arrangement with the
dominant carrier. Assume further that the rival carrier required the feed traffic
provided by the interline arrangement in order to make its service on a particular route
profitable. In addition, assume that the rival carrier scheduled its flight and began
marketing its service on the route given certain assumptions about the dominant
carrier’s announced schedule. If the dominant carrier altered its schedule subsequent
to the interline arrangement in a way that made the rival’s service unprofitable, and if
the change in schedule was not motivated by some valid business reason, then it may
be an anti-competitive act as set out in regulation 1(h).
4.3 Essential Facilities and Services
54. The new anti-competitive act added to section 78 also defines the following form of
exclusionary conduct as an anti-competitive-act:
78(1)(k) the denial by a person operating a “domestic service”, as defined in
subsection 55(1) of the Canada Transportation Act, of access on reasonable
commercial terms to facilities or services that are essential to the operation in
a market of an “air service”, as defined in that subsection, or refusal by such
a person to supply such facilities or services on such terms.
20
55. And section 2 (1) of the airline regulations provide that:
For the purpose of paragraph 78(1)(k) of the Competition Act, facilities and
services that are essential to the operation in a market of an air service, as
defined in subsection 55(1) of the Canada Transportation Act, are those:
(a) that are required in order to provide a competitive air service;
(b) that cannot reasonably or practicably be purchased, acquired, provided or
replicated by another carrier on its own behalf;
(c) that are effectively controlled by the air carrier who denies access to them
or refuses supply of them; and
(d) that can be feasibly provided to another air carrier, having regard to
operational or safety considerations, or legitimate business justifications of
the air carrier referred to in paragraph (c).
56. Section 2 (2) of the airline regulations state that for the purpose of the above
paragraph:
facilities and services may include, but are not limited to, take-off and landing
slots, interline arrangements, airport gates, loading bridges, counters and
related airport facilities, maintenance services, and baggage handling
infrastructure, equipment and services.
57. Raising a rival’s costs could be the outcome of the anti-competitive act defined by
paragraph 78(1)(k), “the denial by a person operating a ‘domestic service’ . . . of
access on reasonable commercial terms to facilities or services that are essential to
the operation in a market of an ‘air service’ . . . or refusal by such a person to supply
such facilities or services on such terms.”13 This type of practice could lead to either
an increase in a competing carrier’s fixed costs or variable costs of operation. With
respect to a possible impact on fixed costs, a situation could develop at a particular
airport where a dominant carrier contracts for all or most of the available space
within the terminal facility, including passenger service counters and gates. The
carrier may be willing to sublease space to a rival carrier, but only at a lease rate that
would either make the rival’s operation unprofitable or inhibit the willingness of the
13
However, the denial of access to essential facilities or services is not the only way that a dominant carrier
can raise a rival’s costs.
21
rival to expand its service. A dominant carrier could also have third party
agreements that give it exclusive access to certain airport services. Again, a
competing carrier’s fixed costs could be raised relative to what they would have
been in the absence of the third party agreements, assuming that the costs of the
services do not vary with the number of passengers being carried.
58. With respect to a possible impact on variable costs, the dominant carrier might have
third party service agreements that grant it exclusive access to certain airport
services that are necessary to offer an air service, but that are not available elsewhere
in the market. A rival carrier would only be able to commence service by either
purchasing third party services through the dominant carrier or providing the
services for itself. If the prices the third party charged for these services, or the costs
of providing services for itself are sufficiently high, the rival carrier could find it
either unprofitable to serve the market at all or to expand its service. The exclusive
third party service agreement, in conjunction with the refusal to make the service
available on reasonable commercial terms, could constitute an anti-competitive act.
4.3.1 Criteria to Identify Essential Facilities and Services
59. In order for a carrier to be in possible contravention of 78(1)(k), the denial of access
must be “on reasonable commercial terms” and it must be to facilities or services
that are essential to the operation of an air service. The airline regulations contain
four criteria that the Bureau will use to determine whether a service or facility is
essential to the operation in a market of an air service. They also contain a non-
exhaustive list of facilities and services that may be essential.
4.3.1(a)Essential to Provide Service
60. First, the facility or service must be required in order for the air carrier to provide a
competitive air service. In other words, it must not be possible to offer the
competitive air service without the facility or service for which access is being
denied. In every case of alleged denial of access, the Bureau examines whether the
carrier being denied access could have arranged a substitute facility or service on
reasonable terms. For example, in the case of a complaint that a carrier is denying
access to interline arrangements on reasonable commercial terms, the Bureau will
22
consider whether the complainant could have provided a competitive air service in
the market without the interline arrangement (e.g. with direct service).
61. The inclusion of the phrase “competitive air service” means that a carrier cannot
defend its denial of access to an essential facility or service on the grounds that the
facility or service is not required for the operation of an air service. For example, if
passengers expect a carrier to provide a certain service, such as flights from airport
A, and would not view a carrier as offering an acceptable substitute at an alternative
airport B, then denial by the dominant firm of access to the airport A could imply the
inability to operate a competitive air service. In addition, if the complainant carrier
can only obtain access to the service on unreasonable commercial terms or at
unreasonable times, then that could also imply the inability to operate a competitive
air service.
62. The phrase “competitive air service” is not meant to imply identical air service. Nor
is the dominant carrier expected to subsidize the provision of an essential facility or
service in order for an air carrier to provide a competitive air service. Such an
expectation would contradict regulation 1(d), which refers to the feasibility of
providing the facility or service, as well as 78(1)(k) itself, which refers to access on
reasonable commercial terms.
4.3.1(b)Cannot be Reasonably Replicated or Acquired
63. The second requirement for a service or facility to be essential is that it cannot
reasonably or practicably be purchased, acquired, provided or replicated by another
carrier on its own behalf. The Bureau seeks to determine whether the service or
facility for which access is being denied is available anywhere in the market on
reasonable commercial terms. The Bureau also considers whether the complainant
carrier could have provided the service or facility for itself on reasonable terms. For
example, a carrier might complain that the dominant carrier is the only provider of
baggage handling or maintenance services at a particular airport facility, and that
these services cannot be reasonably purchased in the market. In the event of this
type of complaint, the Bureau needs to consider whether baggage handling or
maintenance services could be replicated on reasonable terms by the complainant
carrier.
23
64. The ability to replicate a service could depend on who has effective control of the
facility associated with the service. If the dominant carrier has contracted for all
available facilities at a given airport, a rival carrier might be unable to replicate or
provide a service for itself at that airport. For example, if the dominant carrier has
contracts for all of the gate space at an airport, or all of the airport related baggage
equipment (e.g. the baggage conveyor belts), then a rival carrier might be unable to
offer air service from that airport.
4.3.1(c)Controlled by a Dominant Carrier
65. The third requirement for a service or facility to be essential is that it be effectively
controlled, directly or indirectly, by the air carrier refusing supply or access. This
requirement makes it clear that simply because the dominant carrier is using a
particular facility or service does not imply that it has effective discretionary control
over the use of the facility or service. A dominant carrier could refuse to supply a
facility or service because it is not within its contractual authority to grant access.
4.3.1(d)Feasible to Provide
66. The fourth requirement for a service or facility to be essential is that it can be
feasibly provided to another air carrier, having regard to operational or safety
considerations, or legitimate business justifications of the air carrier denying access
or refusing supply. In the case of an alleged refusal to supply an essential facility or
service, the dominant carrier might be able to defend its refusal on valid business
grounds.
67. While it is difficult to anticipate what valid business reasons might be offered for the
refusal to supply, several examples can be suggested. For instance, a dominant
carrier might try to defend its refusal to supply on the grounds that it does not have
sufficient capacity in place to meet its own requirements as well as those of the rival
carrier. Meeting the rival carrier’s request for service might require the dominant
carrier to invest in new facilities, and such an investment might be unreasonable to
expect. Alternatively, the dominant carrier could be required to cancel its own
service in order to meet the rival’s request for service, and such a requirement might
be unreasonable. A second valid business reason for refusal to supply could involve
legitimate concerns regarding the safety procedures of a rival carrier. If the situation
24
requires, the Bureau will obtain the expertise of an independent third party to assess
the validity of claims advanced by a dominant carrier that it is infeasible for it to
provide access.
4.3.2 Application of the Essential Facilities and Services Regulations
68. As with other acts in section 78, the denial of access on reasonable commercial
terms to facilities or services that are essential to the operation in a market of an air
service is only an abuse of dominance if the practice has had, is having or is likely to
prevent or substantially lessen competition in a market.
69. The behavior described by 78(1)(k) could also be challenged under section 79 of the
Competition Act where the act involves an airport authority that refuses to make
available unused airport facilities or services for the operation of a competing
carrier. A dominant air carrier in a market could attempt to contract with an airport
authority to obtain exclusive access to the airport facility and services provided by
the airport, paying a price higher than the airport authority would be able to obtain
from a competing carrier. This could prevent the competing carrier’s entry in a
market because it would not be feasible for the competing carrier to construct its
own airport facility.
70. Over time, all facilities at the airport may have been taken up by the various carriers
serving the airport. At some point, a new competing carrier may only be able to
commence operations at the airport if (a) the airport expands (but this decision may
not be under its control), or (b) it is able to obtain unused airport facilities, such as
underutilized gates, on reasonable commercial terms, from the carrier(s) or airport
authority that controls them. Then a denial of access by the dominant carrier to
essential facilities or services on reasonable commercial terms could be an anti-
competitive act under section 78.
4.4 Marketing Conducts
71. The Regulations 1 (f) and (g) define two other anti-competitive acts as follows:
(f) using commissions, incentives or other inducements to sell or purchase its
flights for the purpose of disciplining or eliminating a competitor or impeding
or preventing a competitor’s entry into, or expansion in, a market;
25
(g) using a loyalty marketing program for the purpose of disciplining or
eliminating a competitor or impeding or preventing a competitor’s entry into,
or expansion in, a market.
72. Travel agent commissions and frequent flyer programs are instruments that can be
used by airlines to build a loyal base of customers and travel agents. Frequent flyer
programs award points to travellers which can be later redeemed in the form of
travel on other routes. Because the number of points the customer has with a
specific airline depends on the amount of business the customer has given to that
airline, the customer has an incentive to fly as much as possible with the same
carrier. In addition, such frequent flyer programs will induce consumers to choose
to fly on airlines with large networks that provide a larger number of routes on
which the frequent flyer points can be redeemed. All of these features contribute to
the ability of a frequent flyer program to induce loyalty from consumers.
73. Similarly, airlines can use the structure of travel agent commissions, and in
particular commission overrides, to reward travel agents for booking flights with the
airline. A typical commission override program grants an increased commission to
a travel agent provided that the agent books a specified percentage of its passengers
on the carrier with which it has the agreement. This commission structure gives
travel agents the incentive to book as many flights as possible on the same airline.
4.4.1 Frequent Flyer Programs
74. An airline can potentially use a passenger loyalty programs such as frequent flyer
programs to foreclose a potential or existing rival. For example, suppose that the
dominant airline faces new entry on a particular route. As part of a campaign to
eliminate the new rival, the dominant airline may increase the frequent flyer awards
on this route beyond what it would normally offer on similar routes on which it
faces competition. This increase would have the same effect as lowering fares on
the route; a package of greater value is being offered for the same price. If the
increase is justified only because it eliminates or disciplines the new entrant, then it
would be considered anti-competitive.
4.4.2 Travel Agent Commission Overrides
26
75. Similarly, travel agent commissions can be used as an instrument to foreclose a
potential or existing rival. In response to entry on a route, the dominant airline
could increase the commission bonus earned by travel agents that book a large
percentage of their passengers with the dominant carrier. Where the increase in
bonus commissions is sufficient to induce agents to book flights of the offering
carrier with the consequent effect of eliminating or disciplining a competitor, the
Bureau will consider the increased offering to be an anti-competitive act.
4.4.3 Corporate Discount Programs
76. Besides commission overrides that may be anti-competitive, regulation 1 (f) permits
the Bureau to challenge certain types of corporate discount programs that might be
anti-competitive. It may be possible, for example, for a dominant incumbent carrier
to contract with firms, public institutions, or governments to be the preferred air
carrier for their employees, offering discounts as inducements for such loyalty. Such
contracts could be of concern if they cover a sufficiently large part of the market so
as to have a material impact on competitive airline operations. These types of
contracts could affect the ability of a rival carrier to attract sufficient passengers to
make its operation profitable. They could also have an impact on a dominant
carrier’s ability to cover its avoidable costs.
77. The Bureau anticipates that the manipulation of frequent flyer rewards, travel agent
commissions, and corporate discount programs would most likely be anti-
competitive when their manipulation is part of an overall anti-competitive strategy.
Therefore, the Bureau considers whether loyalty programs are being employed in
order to contribute to or enhance the effects of other anti-competitive strategies
listed in the regulations. However, the Bureau does not rule out the possibility that
the manipulation of frequent flyer programs and travel agent commissions could be
sufficient to achieve an anti-competitive aim.
78. It should be noted that for the acts defined in regulations (f) and (g) to be anti-
competitive, there must be evidence to indicate that the dominant carrier is engaging
in them “for the purpose of disciplining or eliminating a competitor or impeding or
preventing a competitor’s entry into, or expansion in, a market”. The mere use of
commissions, incentives, or other inducements to sell or purchase its flights, and the
27
mere use of loyalty marketing programs, are not in and of themselves considered
anti-competitive acts under the airline regulations.
79. Finally, with the exception of the first three regulations dealing with anti-
competitive pricing, all of the other regulations require evidence of some anti-
competitive purpose or object. In this regard, the Bureau would note that the
jurisprudence under section 79 has held that the element of anti-competitive intent
or purpose can be established either with direct evidence or by inference based on
the likely effect of a practice on competition in the particular circumstances of a
case.
4.5 Other Anti-Competitive Practices
80. In addition to the anti-competitive acts defined for the airline industry by regulations
and in paragraphs 78(1)(j) and (k), section 78 provides a non exhaustive, illustrative
list of anti-competitive acts as follows:
(a) Margin squeezing by a vertically integrated supplier against a customer-
competitor;
(b) Acquisition by a supplier of a customer to foreclose a competitor;
(c) Freight equalization on a competitor’s plant to eliminate or impede
competition;
(d) Selective use of fighting brands to discipline or eliminate a competitor;
(e) Pre-emption of scarce facilities or resources required by a competitor;
(f) Buying up products to prevent price erosion;
(g) Adopting incompatible specifications to prevent entry or eliminate a
competitor;
(h) Requiring or inducing suppliers to sell only or primarily to certain
customers;
(i) Selling articles below acquisition costs to discipline or eliminate a
competitor.
81. The anti-competitive practices described above will be discussed in more detail in
the forthcoming general enforcement guidelines to be published by the Bureau with
respect to sections 78 and 79. It is important to note that the general list of anti-
competitive practices contained in section 78 can also apply to the airline industry.
28
5. Substantial Prevention or Lessening of Competition
82. In order to establish grounds for an order under section 79, the Tribunal must be
satisfied that the practice of anti-competitive acts is likely to result in a substantial
prevention or lessening of competition (i.e. the third essential element in section 79).
Anti-competitive acts involve actions which are either predatory, exclusionary or
disciplinary in nature. The meaning of “lessening competition substantially” is
established in case law. The question to be decided is whether the anti-competitive
acts engaged in by a firm or group of firms are likely to serve to preserve, entrench
or enhance their market power by eliminating or disciplining a competitor or
deterring entry into the market.
83. The Bureau’s approach in assessing anti-competitive activities in the airline industry
focuses on determining whether the activities are likely to have the following
effects: (i) raising rivals’ costs or reducing rivals’ revenues, (ii) foreclosing existing
or potential rivals from essential services or facilities, and (iii) eliminating or
disciplining competitors.
6. Conclusion
84. This document outlines of the Competition Bureau’s approach to enforcing the
abuse of dominance provisions contained in sections 78 and 79 of the Competition
Act and regulations enacted under section 78 (2) with respect to the airline industry.
85. The Bureau cannot, however, provide guidance for every situation and the
circumstances of each case will ultimately determine how the Bureau will exercise
its enforcement discretion. Under its Program of Advisory Opinions, the Bureau has
historically provided its views on proposed actions by businesses. Consequently,
airline carriers can seek advice on whether or not a proposed course of action would
raise an issue under the Competition Act.
29
86. For further information, contact the Competition Bureau:
Information Centre
Competition Bureau
Industry Canada
50 Victoria Street
Hull, QC K1A 0C9
Tel.: (819) 997-4282
Toll free: 1 800 348-5358
TDD (for hearing impaired): 1 800 642-3844
Fax: (819) 997-0324
Fax on demand: (819) 997-2869
Web site: http://competition.ic.gc.ca
E-mail: compbureau@ic.gc.ca
Competition Bureau
February, 2001
30
Annex A
Section 78 as Amended Article 78 tel que modifié
Definition of 78.(1) For the purposes of section 79, 78.(1) Pour l'application de l'article Définition de
"anti-competitive “agissement
act"
"anti-competitive act", without 79, «agissement anti-concurrentiel» anti-
restricting the generality of the term, s'entend notamment des agissements concurrentiel”
includes any of the following acts: suivants :
(a) squeezing, by a vertically a) la compression, par un
integrated supplier, of the margin fournisseur intégré verticalement, de
available to an unintegrated customer la marge bénéficiaire accessible à un
who competes with the supplier, for client non intégré qui est en
the purpose of impeding or preventing concurrence avec ce fournisseur,
the customer's entry into, or dans les cas où cette compression a
expansion in, a market; pour but d'empêcher l'entrée ou la
participation accrue du client dans
un marché ou encore de faire
obstacle à cette entrée ou à cette
participation accrue;
(b) acquisition by a supplier of a b) l'acquisition par un fournisseur
customer who would otherwise be d'un client qui serait par ailleurs
available to a competitor of the accessible à un concurrent du
supplier, or acquisition by a customer fournisseur, ou l'acquisition par un
of a supplier who would otherwise be client d'un fournisseur qui serait par
available to a competitor of the ailleurs accessible à un concurrent
customer, for the purpose of impeding du client, dans le but d'empêcher ce
or preventing the competitor’s entry concurrent d'entrer dans un marché,
into, or eliminating the competitor dans le but de faire obstacle à cette
from, a market; entrée ou encore dans le but de
l'éliminer d'un marché;
31
(c) freight equalization on the plant c) la péréquation du fret en
of a competitor for the purpose of utilisant comme base l'établissement
impeding or preventing the d'un concurrent dans le but
competitor's entry into, or eliminating d'empêcher son entrée dans un
the competitor from, a market; marché ou d'y faire obstacle ou
encore de l'éliminer d'un marché;
(d) use of fighting brands introduced d) l'utilisation sélective et
selectively on a temporary basis to temporaire de marques de combat
discipline or eliminate a competitor; destinées à mettre au pas ou à
éliminer un concurrent;
(e) pre-emption of scarce facilities or e) la préemption d'installations ou
resources required by a competitor for de ressources rares nécessaires à un
the operation of a business, with the concurrent pour l'exploitation d'une
object of withholding the facilities or entreprise, dans le but de retenir ces
resources from a market; installations ou ces ressources hors
d'un marché;
(f) buying up of products to prevent f) l'achat de produits dans le but
the erosion of existing price levels; d'empêcher l'érosion des structures
de prix existantes;
32
(g) adoption of product specifications g) l'adoption, pour des produits, de
that are incompatible with products normes incompatibles avec les
produced by any other person and are produits fabriqués par une autre
designed to prevent his entry into, or personne et destinées à empêcher
to eliminate him from, a market; l'entrée de cette dernière dans un
marché ou à l'éliminer d'un marché;
(h) requiring or inducing a supplier to h) le fait d'inciter un fournisseur à
sell only or primarily to certain ne vendre uniquement ou
customers, or to refrain from selling principalement qu'à certains clients,
to a competitor, with the object of ou à ne pas vendre à un concurrent
preventing a competitor's entry into, ou encore le fait d'exiger l'une ou
or expansion in, a market; l'autre de ces attitudes de la part de
ce fournisseur, afin d'empêcher
l'entrée ou la participation accrue
d'un concurrent dans un marché;
(i) selling articles at a price lower (i) le fait de vendre des articles à
than the acquisition cost for the un prix inférieur au coût
purpose of disciplining or eliminating d'acquisition de ces articles dans le
a competitor; but de discipliner ou d'éliminer un
concurrent;
(j) acts or conducts of a person (j) à l’égard des exploitants d’un
operating a domestic service, as service intérieur, au sens du
defined in subsection 55(1) of the paragraphe 55(1) de la Loi sur les
Canada Transportation Act, that are transports au Canada, les
specified under paragraph (2)(a); and agissements précisés à l’alinéa 2(a);
33
(k) the denial by a person operating a (k) le fait pour un exploitant d’un
“domestic service”, as defined in service intérieur, au sens du
subsection 55(1) of the Canada paragraphe 55(1) de la Loi sur les
Transportation Act, of access on transports au Canada, de ne pas
reasonable commercial terms to donner acccès, à des conditions
facilities or services that are essential raisonnables dans l’industrie, à des
to the operation in a market of “an air installations ou sersvices essentiels
service”, as defined in that subsection, à l’exploitation dans un marché d’un
or refusal by such a person to supply service aérien, au sens de ce
such facilities or services on such paragraphe, ou de refuser de fournir
terms. ces installations ou services à de
telles conditions.
Regulations (2) The Governor in Council may, on (2) Le gouverneur en conseil peut, Règlements
the recommendation of the Minister par règlement pris sur
[of Industry] and the Minister of recommendation du ministre [de
Transport, make regulations l’Industrie] et du ministre des
(a) specifying acts or conduct for the Transports:
purpose of paragraph (1)(j); and (a) préciser des agissements pour
(b) specifying facilities or services l’application de l’alinéa (1)j);
that are essential to the operation of (b) préciser des installations ou
an air service for the purpose of services essentiels pour l’application
paragraph (1)(k). de l’alinéa (1)k).
R.S., 1985, c.19 (2nd Supp.), s. 45; L.R. (1985), ch. 19 (2e suppl.), art.
2000, c.15, s. 13 45;
2000, ch 15, art. 13
34
Section 79 Article 79
Prohibition where 79. (1) Where, on application by the 79. (1) Lorsque, à la suite d'une Ordonnance
abuse of dominant Commissioner, the Tribunal finds that demande du commissaire, il conclut d'interdiction dans
position les cas d'abus de
à l'existence de la situation suivante: position dominante
(a) one or more persons a) une ou plusieurs
substantially or completely personnes contrôlent
control, throughout Canada or sensiblement ou
any area thereof, a class or complètement une catégorie
species of business, ou espèce d'entreprises à la
grandeur du Canada ou d'une
de ses régions;
(b) that person or those b) cette personne ou ces
persons have engaged in or are personnes se livrent ou se
engaging in a practice of sont livrées à une pratique
anti-competitive acts, and d'agissements
anti-concurrentiels;
(c) the practice has had, is c) la pratique a, a eu ou aura
having or is likely to have the vraisemblablement pour
effect of preventing or effet d'empêcher ou de
lessening competition diminuer sensiblement la
substantially in a market, concurrence dans un marché
the Tribunal may make an le Tribunal peut rendre une
order prohibiting all or any of those ordonnance interdisant à ces
persons from engaging in that personnes ou à l'une ou l'autre
practice. d'entre elles de se livrer à une telle
pratique.
35
Additional or (2) Where, on an application under (2) Dans les cas où à la suite de la Ordonnance
alternative order supplémentaire ou
subsection (1), the Tribunal finds that demande visée au paragraphe (1) il substitutive
a practice of anti-competitive acts has conclut qu'une pratique
had or is having the effect of d'agissements anti-concurrentiels a
preventing or lessening competition eu ou a pour effet d'empêcher ou de
substantially in a market and that an diminuer sensiblement la
order under subsection (1) is not concurrence dans un marché et
likely to restore competition in that qu'une ordonnance rendue aux
market, the Tribunal may, in addition termes du paragraphe (1) n'aura
to or in lieu of making an order under vraisemblablement pas pour effet de
subsection (1), make an order rétablir la concurrence dans ce
directing any or all the persons against marché, le Tribunal peut, en sus ou
whom an order is sought to take such au lieu de rendre l'ordonnance
actions, including the divestiture of prévue au paragraphe (1), rendre
assets or shares, as are reasonable and une ordonnance enjoignant à l'une
as are necessary to overcome the ou l'autre ou à l'ensemble des
effects of the practice in that market. personnes visées par la demande
d'ordonnance de prendre des
mesures raisonnables et nécessaires
dans le but d'enrayer les effets de la
pratique sur le marché en question
et, notamment, de se départir
d'éléments d'actif ou d’actions.
Limitation (3) In making an order under (3) Lorsque le Tribunal rend une Restriction
subsection (2), the Tribunal shall ordonnance en application du
make the order in such terms as will paragraphe (2), il le fait aux
in its opinion interfere with the rights conditions qui, à son avis, ne
of any person to whom the order is porteront atteinte aux droits de la
directed or any other person affected personne visée par cette ordonnance
by it only to the extent necessary to ou à ceux des autres personnes
achieve the purpose of the order. touchées par cette ordonnance que
dans la mesure de ce qui est
nécessaire à la réalisation de l'objet
de l'ordonnance.
36
Superior (4) In determining, for the purposes of (4) Pour l'application du paragraphe Efficience
competitive économique
performance
subsection (1), whether a practice has (1), lorsque le Tribunal décide de la supérieure
had, is having or is likely to have the question de savoir si une pratique a
effect of preventing or lessening eu, a ou aura vraisemblablement
competition substantially in a market, pour effet d'empêcher ou de
the Tribunal shall consider whether diminuer sensiblement la
the practice is a result of superior concurrence dans un marché, il doit
competitive performance. évaluer si la pratique résulte du
rendement concurrentiel supérieur.
Exception (5) For the purpose of this section, an (5) Pour l'application du présent Exception
act engaged in pursuant only to the article, un agissement résultant du
exercise of any right or enjoyment of seul fait de l'exercice de quelque
any interest derived under the droit ou de la jouissance de quelque
Copyright Act, Industrial Design Act, intérêt découlant de la Loi sur les
Integrated Circuit Topography Act, brevets, de la Loi sur les dessins
Patent Act, Trade-marks Act or any industriels, de la Loi sur le droit
other Act of Parliament pertaining to d'auteur, de la Loi sur les marques
intellectual or industrial property is de commerce, de la Loi sur les
not an anti-competitive act. topographies de circuits intégrés ou
de toute autre loi fédérale relative à
la propriété intellectuelle ou
industrielle ne constitue pas un
agissement anti-concurrentiel.
Limitation period (6) No application may be made under (6) Une demande ne peut pas être Prescription
this section in respect of a practice of présentée en application du présent
anti-competitive acts more than three article à l'égard d'une pratique
years after the practice has ceased. d'agissements anti-concurrentiels si
la pratique en question a cessé
depuis plus de trois ans.
37
Where (7) No application may be made (7) Une demande ne peut être Procédures en
proceedings vertu de l'article 45
commenced under
under this section against a person présentée en application du présent ou 92
section 45 or 92 article à l'endroit d'une personne :
(a) against whom proceedings a) contre laquelle des
have been commenced under procédures ont été
section 45, or entreprises en vertu de
l'article 45;
(b) against whom an order is b) contre laquelle une
sought under section 92 ordonnance est demandée en
vertu de l'article 92,
on the basis of the same or si les faits qui seraient allégués dans
substantially the same facts as would la demande en application du
be alleged in the proceedings under présent article sont en substance les
section 45 or 92, as the case may be. mêmes que ceux qui sont allégués
dans les affaires visées à l'article 45
ou 92.
R.S., 1985, c. 19 (2nd Supp.), s. 45; L.R. (1985), ch. 19 (2e suppl.), art.
1990, c. 37, s. 31; 1999, c. 2, s. 37. 45; 1990, ch. 37, art. 31; 1999, ch.
2, art. 37.
38
Annex B
REGULATIONS RESPECTING RÈGLEMENT SUR LES
ANTI-COMPETITIVE ACTS OF AGISSEMENTS ANTI-
PERSONS OPERATING A CONCURRENTIELS DES
DOMESTIC SERVICE EXPLOITANTS DE SERVICE
INTÉRIEUR
ANTI-COMPETITIVE ACTS AGISSEMENTS ANTI-CONCURRENTIELS
1. For the purposes of paragraph 78(1)(j) 1. Pour l'application de l'alinéa 78(1)j)
of the Competition Act, the following de la Loi sur la concurrence,
acts or conduct of a person operating a constituent des agissements anti-
domestic service, as defined in concurrentiels les agissements ci-après
subsection 55(1) of the Canada de l'exploitant d'un service intérieur, au
Transportation Act, are anti-competitive sens du paragraphe 55(1) de la Loi sur
acts: les transports au Canada :
(a) operating capacity on a route or a) l'exploitation de la capacité sur une
routes at fares that do not cover the ou plusieurs routes à des prix qui ne
avoidable cost of providing the service; couvrent pas les coûts évitables de
prestation du service en cause;
(b) increasing capacity on a route or b) l'augmentation de la capacité sur une
routes at fares that do not cover the ou plusieurs routes à des prix qui ne
avoidable cost of providing the service; couvrent pas les coûts évitables de
prestation du service en cause;
(c) using a low-cost second-brand c) l'utilisation d'un transporteur
carrier in a manner that is described in secondaire à moindre coût d'une façon
paragraph (a) or (b); visée aux alinéas a) ou b);
(d) pre-empting airport facilities or d) la préemption d'installations ou de
services that are required by another air services aéroportuaires nécessaires à un
carrier for the operation of its business, autre transporteur aérien pour
with the object of withholding the l'exploitation de son entreprise, dans le
39
airport facilities or services from a but de retenir ces installations ou ces
market; services hors d’un marché;
(e) to the extent not governed by e) dans la mesure où elle n’est pas régie
regulations respecting take-off and par un règlement - pris en vertu d’une
landing slots made under any other Act, autre loi - concernant les créneaux de
pre-empting take-off or landing slots décollage ou d’atterrissage, la
that are required by another air carrier préemption de créneaux de décollage ou
for the operation of its business, with the d’atterrissage nécessaires à un autre
object of withholding the take-off or transporteur aérien pour l’exploitation
landing slots from a market; de son entreprise, dans le but de retenir
ces créneaux hors d’un marché;
(f) using commissions, incentives or f) l'utilisation, pour la vente ou l'achat
other inducements to sell or purchase its de ses vols, de commissions,de primes
flights for the purpose of disciplining or ou d'autres incitatifs dans le but de
eliminating a competitor or impeding or discipliner ou d'éliminer un concurrent,
preventing a competitor’s entry into, or ou d'empêcher l'entrée ou la
expansion in, a market; participation accrue d'un concurrent
dans un marché ou d'y faire obstacle;
(g) using a loyalty marketing program g) le recours à un programme de
for the purpose of disciplining or fidélisation dans le but de discipliner ou
eliminating a competitor or impeding or d'éliminer un concurrent, ou d'empêcher
preventing a competitor's entry into, or l'entrée ou la participation accrue d'un
expansion in, a market; and concurrent dans un marché ou d'y faire
obstacle;
(h) altering its schedules, networks, or h) la modification de ses horaires, de
infrastructure for the purpose of ses réseaux ou de son infrastructure
disciplining or eliminating a competitor dans le but de discipliner ou d'éliminer
or impeding or preventing a competitor's un concurrent, ou d'empêcher l'entrée
entry into, or expansion in, a market. ou la participation accrue d'un
concurrent dans un marché ou d'y faire
obstacle.
40
ESSENTIAL FACILITIES AND SERVICES INSTALLATIONS OU SERVICES
ESSENTIELS
2. (1) For the purposes of 2. (1) Pour l'application de l'alinéa
paragraph 78(1)(k) of the Competition 78(1)k) de la Loi sur la concurrence,
Act, facilities and services that are constituent des installations ou services
essential to the operation in a market of essentiels à l'exploitation dans un
an air service, as defined in marché d'un service aérien, au sens du
subsection 55(1) of the Canada paragraphe 55(1) de la Loi sur les
Transportation Act, are those transports au Canada, les installations
ou services qui, à la fois :
(a) that are required in order to provide a) sont nécessaires pour fournir un
a competitive air service; service aérien concurrentiel;
(b) that cannot reasonably or practicably b) ne peuvent raisonnablement ou
be purchased, acquired, provided or commodément être achetés, acquis,
replicated by another air carrier on its fournis ou reproduits par un autre
own behalf; transporteur aérien pour son propre
compte;
(c) that are effectively controlled by the c) sont, dans les faits, contrôlés par le
air carrier who denies access to them or transporteur aérien qui n'y donne pas
refuses supply of them; and accès ou qui refuse de les fournir;
(d) that can be feasibly provided to d) peuvent réalistement être fournis à un
another air carrier, having regard to autre transporteur aérien, compte tenu
operational or safety considerations, or des considérations de fonctionnement et
legitimate business justifications of the de sécurité, ou des raisons d'affaires
air carrier referred to in paragraph (c). légitimes du transporteur aérien visé à
l'alinéa c).
(2) For the purpose of subsection (1), (2) Peuvent notamment être visés par le
facilities and services may include, but paragraphe (1) les créneaux de
41
are not limited to, take-off and landing décollage et d'atterrissage, les accords
slots, interline arrangements, airport intercompagnies, les portes
gates, loading bridges, counters and d'embarquement, les passerelles
related airport facilities, maintenance d'embarquement, les comptoirs et les
services, and baggage handling installations aéroportuaires connexes,
infrastructure, equipment and services. les services d'entretien et les services de
manutention des bagages ainsi que
l'équipement et l'infrastructure
connexes.
COMING INTO FORCE ENTRÉE EN VIGUEUR
3. These Regulations come into force 3. Le présent règlement entre en vigueur
on the day on which they are registered. à la date de son enregistrement.
SOR/87-348 DORS/87-348
42
Annex C
New section 104.1: Nouvel article 104.1 :
Temporary 104.1 (1) The Commissioner may make 104.1 (1) Le commissaire peut rendre Ordon-
order nance
a temporary order prohibiting a person une ordonnance provisoire interdisant à provisoire
operating a domestic service, as defined une personne exploitant un service
in subsection 55(1) of the Canada intérieur, au sens du paragraphe 55(1)
Transportation Act, from doing an act de la Loi sur les transports au Canada,
or a thing that could, in the opinion of d'accomplir tout acte, ou de mener toute
the Commissioner, constitute an activité, qui, selon lui, pourrait
anti-competitive act or requiring the constituer des agissements
person to take the steps that the anti-concurrentiels ou lui enjoignant de
Commissioner considers necessary to prendre les mesures qu'il estime
prevent injury to competition or harm to nécessaires pour ne pas nuire à la
another person if concurrence ou pour éviter de causer
des dommages à une autre personne
lorsque, à la fois :
(a) the Commissioner has a) il a commencé une enquête en
commenced an inquiry under vertu du paragraphe 10(1) en
subsection 10(l) in regard to vue de déterminer si les
whether the person has engaged agissements de la personne ont
in conduct that is reviewable donné lieu à une situation visée
under section 79; and à l'article 79;
(b) the Commissioner considers b) il estime qu'en cas de
that in the absence of a non-prononcé de l'ordonnance :
temporary order
(i) injury to competition (i) soit la concurrence
that cannot adequately be subira vraisemblablement
remedied by the Tribunal un préjudice auquel le
is likely to occur, or Tribunal ne pourra
adéquatement remédier,
43
(ii) a person is likely to (ii) soit un compétiteur
be eliminated as a sera vraisemblablement
competitor, suffer a éliminé ou une personne
significant loss of market subira vraisemblablement
share, suffer a significant une réduction importante
loss of revenue or suffer de sa part de marché, une
other harm that cannot be perte importante de revenu
adequately remedied by ou des dommages
the Tribunal. auxquels le Tribunal ne
pourra adéquatement
remédier.
Notice not (2) The Commissioner is not obliged to (2) Le commissaire peut rendre Aucun
required préavis ni
give notice to or receive representations l'ordonnance sans préavis et sans aucune
from any person before making a donner au préalable à qui que ce soit la observa-
temporary order. possibilité de présenter des tion
observations.
Notice to (3) On making a temporary order, the (3) Le commissaire envoie un avis écrit Avis aux
persons intéressés
affected
Commissioner shall promptly give de l'ordonnance et des motifs de
written notice of the order, together celle-ci, dans les meilleurs délais après
with the grounds for it, to every person son prononcé, aux personnes qui en font
against whom it was made or who is l'objet et aux autres personnes
directly affected by it. directement touchées.
Duration (4) Subject to subsections (5) and (6), a (4) Sous réserve des paragraphes (5) et Durée de
of l'ordon-
temporary
temporary order has effect for 20 days. (6), l'ordonnance demeure en vigueur nance
order pendant vingt jours.
Extension (5) The Commissioner may extend the (5) Le commissaire peut, à deux Proroga-
and tion de
revocation
20-day period for one or two periods of reprises, proroger l'ordonnance d'une l'ordon-
30 days each or may revoke a temporary période supplémentaire de trente jours nance
order. The Commissioner shall et peut, en tout temps, annuler
promptly give written notice of the l'ordonnance. Dans les meilleurs délais,
extension or revocation to every person il avise par écrit de la prorogation ou de
to whom notice was given under l'annulation les personnes qui ont été
subsection (3). avisées au titre du paragraphe (3).
44
When (6) If an application is made under (6) En cas de présentation de la Durée de
application l'ordon-
made to
subsection (7), the temporary order has demande visée au paragraphe (7), nance en
Tribunal effect until the Tribunal makes an order l'ordonnance demeure en vigueur cas de
under that subsection. jusqu'à la date du prononcé de la contes-
tation
décision du Tribunal.
judiciaire
Confirma- (7) A person against whom the (7) Toute personne faisant l'objet de Modifica-
tion tion ou
Commissioner has made a temporary l'ordonnance peut en demander au annulatio
order may, within the period referred to Tribunal la modification ou l'annulation n de
in subsection (4), apply to the Tribunal pendant la période prévue au l'ordon-
nance
to have the temporary order varied or paragraphe (4). Le Tribunal :
set aside and the Tribunal shall
(a) if it is satisfied that one or a) confirme l'ordonnance, avec,
more of the conditions set out in le cas échéant, les modifications
paragraph (1)(b) existed or are qu'il estime indiquées en
likely to exist, make an order l'occurrence, pour une période
confirming the temporary maximale de soixante jours à
order, with or without variation compter du prononcé de sa
as the Tribunal considers décision, s'il est convaincu
necessary and sufficient to meet qu'une des situations visées à
the circumstances, and fixing the l'alinéa (1)b) s'est produite ou se
effective period of its order for a produira vraisemblablement;
maximum of 60 days after the
day on which it is made; and
(b) if it is not satisfied that one b) annule l'ordonnance s'il n'est
or more of the conditions set out pas convaincu qu'une des
in paragraph (1)(b) existed or are situations visées à l'alinéa (1)b)
likely to exist, make an order s'est produite ou se produira
setting aside the temporary vraisemblablement.
order.
Notice (8) The applicant shall give written (8) Le demandeur avise par écrit de la Avis
notice of the application to every person demande les personnes qui ont été
to whom notice was given under avisées au titre du paragraphe (3).
subsection (3).
45
Commis- (9) In the event of an application under (9) Pour les fins de la demande visée au Statut
sioner is d'intimé
respondent
subsection (7), the Commissioner is the paragraphe (7), le commissaire est du
respondent. l'intimé. commis-
saire
Represen- (10) At the hearing of an application (10) Dans le cadre de l'audition de la Possibilit
tations é de
under subsection (7), the Tribunal shall demande visée au paragraphe (7), le présenter
provide the applicant, the Tribunal accorde au demandeur, au des
Commissioner and any person directly commissaire et aux personnes observa-
tions
affected by the temporary order with a directement touchées toute possibilité
full opportunity to present evidence and de présenter des éléments de preuve et
make representations before the des observations sur l'ordonnance
Tribunal makes an order under that attaquée avant de rendre sa décision.
subsection.
Prohibitio (11) Except as provided for by (11) Sous réserve du paragraphe (7) : Interdic-
n of tion de
extraor-
subsection (7), recours
dinary (a) a temporary order made by the a) l'ordonnance ne peut faire extraor-
relief Commissioner shall not be l'objet d'aucune contestation ou dinaire
questioned or reviewed in any révision judiciaire;
court; and
(b) no order shall be made, process b) l'action du commissaire -
entered or proceedings taken in dans la mesure où elle s'exerce
any court, whether by way of dans le cadre du présent article -
injunction, certiorari, ne peut être contestée, révisée,
mandamus, prohibition, quo empêchée ou limitée, ni faire
warranto, declaratory judgment l'objet d'aucun recours
or otherwise, to question, judiciaire, notamment par voie
review, prohibit or restrain the d'injonction, de certiorari, de
Commissioner in the exercise of mandamus, de prohibition, de
the jurisdiction granted by this quo warranto ou de jugement
section. déclaratoire.
Powers (12) The making of a temporary order (12) Le prononcé de l'ordonnance par le Exercice
and duties des
not
does not in any way limit, restrict or commissaire ne porte aucunement attribu-
affected by qualify the powers, duties or atteinte à l'exercice par celui-ci des tions non
order responsibilities of the Commissioner attributions que lui confère la présente touché
par
46
under this Act, including the loi, notamment le pouvoir de mener des l'ordon-
nance
Commissioner's power to conduct enquêtes et de présenter des demandes
inquiries and to make applications to devant le Tribunal à l'égard des
the Tribunal in regard to conduct that is agissements qui font l'objet de
the subject of the temporary order. l'ordonnance.
Registra- (13) The Commissioner shall file each (13) Le commissaire dépose chaque Enregis-
tion of trement
orders
temporary order with the Registry of the ordonnance auprès du greffe du de
Tribunal. Once registered, the order is Tribunal. Une fois enregistrée, l'ordon-
enforceable in the same manner as an l'ordonnance a la même valeur et nance
order of the Tribunal. produit les mêmes effets que si elle
avait été rendue par le Tribunal.
Duty of (14) When a temporary order is in (14) Lorsqu'une ordonnance provisoire Obliga-
Commis- tions du
sioner
effect, the Commissioner shall proceed a force d'application, le commissaire commis-
as expeditiously as possible to complete doit, avec toute la diligence possible, saire
the investigation arising out of the mener à terme l'enquête à l'égard des
conduct in respect of which the agissements qui font l'objet de
temporary order was made. l'ordonnance.
Immunity (15) No action lies against Her Majesty (15) Sa Majesté du chef du Canada, le Immunité
judiciaire
in right of Canada, the Minister, the ministre, le commissaire, les
Commissioner, any Deputy sous-commissaires, les personnes
Commissioner, any person employed in appartenant à l'administration publique
the public service of Canada or any fédérale, de même que les personnes
person acting under the direction of the agissant sous les ordres du commissaire,
Commissioner for anything done or bénéficient de l'immunité judiciaire
omitted to be done in good faith under pour les actes ou omissions accomplis
this section. de bonne foi en application du présent
article.
2000, c.15, s.15 2000, ch. 15, art. 18.
47
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