Competition
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Jilesen, Monique
Lenczner Slaght Royce
Smith Griffin LLP
(416) 865-2926
mjilesen@litigate.com
Ms. Jilesen's commer-
cial litigation trial prac-
tice includes complex
contract and sharehold-
er disputes, class ac-
tions, civil fraud, bank-
ruptcy and insolvency
matters, securities and
derivatives cases, and
professional liability.
Kapusianyk,
QC, Brian G.
Gowling Lafleur
Henderson LLP
(403) 298-1014
brian.kapusianyk@gowlings.
com
Mr. Kapusianyk prac-
tises in the areas
of insurance and
commercial litigation
with an emphasis in
professional liability,
construction law, D&O
litigation, commercial
insurance coverage, as
well as personal injury
and products liability
litigation.
Kay, Katherine L.
Stikeman Elliott LLP
(416) 869-5507
kkay@stikeman.com
Ms. Kay focuses on
complex commercial
litigation, often involving
the interplay between
regulatory, civil and
criminal law regimes
across multiple jurisdic-
tions. Widely recognized
for her expertise in com-
petition, class action
defence and securities.
Kaplan, QC,
William C.
Blake, Cassels
& Graydon LLP
(604) 631-3304
bill.kaplan@blakes.com
Mr. Kaplan's litigation
practice focuses on
corporate/commercial,
governance, securities
and insolvency matters.
He appears on a wide
variety of cases at all
levels of BC courts,
the SCC, administrative
tribunals and
arbitration panels.
Karayannides,
George J.
Clyde & Co Canada LLP
(647) 789-4831
george.karayannides@
clydeco.ca
Mr. Karayannides's
commercial litigation
and arbitration (domes-
tic and international)
practice embraces com-
plex business disputes,
shareholder remedies,
fraud, IP, product liabil-
ity and class actions.
Keefe, John A.
Goodmans LLP
(416) 597-4268
jkeefe@goodmans.ca
Mr. Keefe focuses on
international commer-
cial disputes, white-
collar crime, corruption,
securities fraud and
domestic and inter-
national arbitration. He
regularly advises boards
on governance issues
and conducts internal
investigations.
reparable harm" to con-
sumers in six communi-
ties if retail operations
were integrated before
the fate of the merger
was decided.
Banicevic describes
the decision as "an im-
portant development
for the Bureau in that
it clarifies the approach
and the burden that the
Bureau has to meet when
using s. 104 to obtain an
injunction in the merger
context." (Section 104
has not been invoked as
oen in mergers as s. 100 since the former can only be used
where an application to challenge the merger has already
been brought.)
"e Bureau will still have to show evidence for why they
need that injunction," she says. "But overall they've now got
an opportunity to use s. 104 with more success than they
had with s. 100. Practically, the Bureau's success in invoking
s. 104 may be more significant in its impact on the negoti-
ating dynamics between the parties and the Bureau where a
merger raises competition issues and potential remedies are
being discussed."
Another important Tribunal ruling, upheld on appeal,
was Kobo Inc. v. e Commissioner of Competition, 2014
Comp. Trib. 14. e case clarifies the factors that the Tribu-
nal will consider when reviewing third-party applications to
rescind or vary a consent agreement.
In February 2014, following a probe of the ebook indus-
try, the Bureau reached a consent agreement with four major
ebook publishers. ey agreed to alter distribution agree-
ments with individual ebook retailers (which the Bureau al-
leged restricted retail price competition), to allow retailers to
offer discounts on ebooks.
Soon aerward, however, Kobo, the largest ebook retailer
in Canada, sought to rescind or alter the agreement on the
basis that it includes terms that could not be the subject of an
order of the Tribunal. e Tribunal ruled in September 2014
that it can grant an application to rescind or vary the terms of
a consent agreement only where one or more of three condi-
tions are met:
• e consent agreement includes terms that the Tribunal
is not permitted to issue in respect of the reviewable
trade practice in question.
• e consent agreement does not identify each of the
substantive elements of the reviewable trade practice
in question or does not contain a statement that the
respondent either agrees or does not contest that these
elements have been met.
• e consent agreement includes terms that are unen-
forceable or would lead to no enforceable obligation,
e.g., because they are too vague.
"e Tribunal set a standard that was deferential to the
Commissioner," says Wright. "It was deferential to the pro-
cess of allowing parties to settle, restricting the ability of
third parties to come in and upset the applecart. So the stan-
dard is fairly high for intervention by a non-party."
Kobo challenged the Tribunal's decision at the Federal
Court of Appeal, but its appeal was dismissed in June 2015.
