Case Law Clause Samples

Case Law. The enforcement of Canadian competition law takes place by the Competition Bureau1058 or a private party bringing a case before the Competition Tribunal. Subsequently an appeal may be lodged before the Federal Court of Appeal (FCA). If allowed, a further appeal may be brought before the Canadian Supreme Court. Before discussing the landmark Canada Pipe judgment by the FCA, it is apt to examine three rulings by the Competition Tribunal to provide sufficient context on the issue of justifications. These judgments are Nielsen, Tele-­‐Direct and NutraSweet. The Nielsen case focused on the use of exclusive contracts to deny (potential) competitors access to scanner data used for market tracking services.1059 The Tribunal examined whether the exclusive agreements were based on a valid ‘business justification’ rather than an anti-­‐competitive purpose.1060 The Tribunal held that it may consider ‘any credible efficiency or pro-­‐competitive business justification’. I believe that this terminology aptly reflects the wide range of available justification pleas. The Tribunal also noted that the justification plea must be weighed ‘in light of any anti-­‐competitive effects’ with the aim ‘to establish the overriding purpose’ of the challenged act.1061 I agree that such a balancing test is indeed instructive by accommodating all the different grounds and implications that can be attributed to the conduct under review.1062 1057 See ▇▇▇▇▇▇▇▇▇▇ et al., supra note 1055, at 528: ‘efficiency considerations are crucial to deciding whether an act has the requisite anti-­‐competitive purposes to be classified as an “anti-­‐competitive act” pursuant to section 79’. 1058 Formally speaking, Competition Tribunal cases were brought by the Director of Investigation and Research or, more recently, the Commissioner of Competition. 1059 Canada (Director of Investigation and Research) v D&B Companies of Canada (‘Nielsen’), [1995] CT-­‐1994-­‐001. 1060 Ibid., at 67. 1061 Ibid., at 69. Confirmed by Tele-­‐Direct (infra note 1063), at 259. 1062 As long as ‘purpose’ is not simply equated with subjective intent, which does not seem to be the case. The Tele-­‐Direct ruling largely confirmed these principles.1063 The Competition Bureau argued that Tele-­‐ Direct (a company active in the telephone directory market) had behaved anti-­‐competitively, in particular by tying advertising space to sales services and refusing to deal with advertising consultants. The Tribunal used a weighing exercise, h...

Case Law. The Singaporean public enforcement procedure in Singapore is similar to that of the UK. The CCS can adopt an infringement decision if it finds that a company has acted contrary to the SCA. Such a decision can be appealed to the Competition Appeal Board (CAB).1129 A further appeal is open to the High Court,1130 and finally to the Court of Appeal – Singapore’s highest court. The 2010 SISTIC decision was the first case in which the CCS found an abuse.1131 The decision held that SISTIC, the dominant ticketing company in Singapore, contravened Section 47 SCA by foreclosing competition in the ticketing services market through a web of exclusive agreements.1132 1124 Ibid., at 11.4. 1125 Ibid., at 11.6. 1126 Ibid., at 11.6. 1127 Ibid., at 11.12. 1128 Ibid., at 11.16. 1129 Sections 71 and 72 SCA. 1130 Section 74 SCA. 1131 CCS decision of June 2010, SISTIC, available at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.▇▇/content/dam/ccs/PDFs/Public_register_and_consultation/Public_register/Abuse_of_Domi ▇▇▇▇▇/SISTIC%20Infringement%20Decision%20(Non-­‐confidential%20version).pdf. Referring to its own guidelines, the CCS devotes an entire chapter on the examination of objective justification.1133 The CCS examined whether the following conditions applied: 1134 1. The conduct was in defence of a legitimate commercial interest, 2. The firm has not taken more restrictive measures than were necessary, 3. The restriction resulted in certain benefits; 4. The restrictions are proportionate to the claimed benefits. On the facts, the CCS rejected SISTIC’s plea that exclusivity was necessary to maintain investments, holding that it is competition, rather than immunity from competition, that fosters investment and innovation.1135 In addition, the CCS held that SISTIC failed the necessity test,1136 as it had not demonstrated that its investments were (i) specific and (ii) directly attributable to the exclusivity agreements.1137 The approach by the CCS makes sense, as there is no reason to condone behaviour because of benefits that would have arisen even without that conduct. The CCS also noted that the conduct under review does not meet the proportionality test, as third-­‐party event promoters (a group which it considers one of the ‘stakeholders’) do not benefit from the discounts.1138 It is unclear why the CCS has relied on this observation. As the SCA statute is clearly geared towards encouraging efficient market conduct,1139 it is unclear why every stakeholder should necessarily benefit from the conduct un...

Case Law. In terms of procedure, a plaintiff may bring a federal antitrust case before a District Court. Such a plaintiff is usually a private party, but can also be one of the enforcement agencies of US federal antitrust law; namely the Federal Trade Commission (‘FTC’) or the Antitrust Division of the Department of Justice (‘DoJ’). A subsequent appeal is open to a Circuit Court. If granted certiorari, a further appeal is open to the US Supreme Court. The seminal US Supreme Court judgment in Grinnell has made clear that a claim based on Section 2 of the ▇▇▇▇▇▇▇ Act requires evidence of ‘the willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.’1175 Such an exercise of monopoly power involves ‘specific intent’1176 to behave anti-­‐

Case Law. Centre for Child Care (Amicus Curiae) 2017 JDR 1841 (GP).

Case Law. 10. Counsel for the claimant advanced several authorities for consideration in arriving at an appropriate award for pain and suffering and loss of amenities and recommended as reasonable compensation in the instant case the sum of $230,000.00:  ▇▇▇▇▇▇▇ Ansola v ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and the Great Northern Insurance Co Ltd2 – where a 46 year old plaintiff who was a passenger in a vehicle sustained a severe comminuted compound fracture of the right lower tibia and fibula, a right talar dislocation and a right shoulder dislocation. There was a diminished range of motion of his right ankle and he complained of severe pain in the right ankle and pain in the right tibia and fibula. He was unable to stand for long periods and had to use a stick to move around because of his injuries. Operation of the right ankle was advised as a requirement to correct these problems and relieve pain. Permanent partial disability was assessed at 30% which could be reduced by 10% if surgery is performed. He was awarded general damages for pain and suffering and loss of amenities of $150,000.00 and for future surgery $60,000.00 which was unchanged on appeal.  Caribbean Molasses Company Trinidad Ltd v Ganace3 – where a plaintiff/taxi driver suffered a compound comminuted fracture of the right tibia and fibula and a fracture of the right femur. A pin was inserted in the tibia and a rod in the bones and he developed an infection of the wound, which subsequently subsided. His knee movement was restricted from 1800 to 1600 and movement was severely limited. His ankle joint was stiff and he could not drive and had to walk with crutches. The Court of Appeal increased the award for general damages from $40,000.00 to $126,000.00 of which $96,000.00 represented loss of prospective earnings and $30,000.00 damages for pain and suffering and loss of amenities. This figure was adjusted in December, 2010 to $195,959.00. Of note is that this case is of some vintage so cautious reliance was placed on it in conducting the comparative assessment.

Case Law. ▇▇▇▇▇▇ v. Canada (Attorney General) [2002] 2 SCR 764 ▇▇▇▇▇▇ v. Canada (Attorney General) [2004] SCC 33

Case Law. The determination of whether a transaction should be treated, for federal income tax purposes, as a sale or as a lease is governed by the intention of the parties and the legal effects and economics of their relationship. See, e.g., Oesterreich v. Commissioner, 226 F.2d 798, 55-2 U.S. Tax Cas. (CCH) Paragraph 9733 (9th Cir. 1955); see also, M&W Gear Co. v. Commissioner, 446 F.2d 841, 71-2 U.S. Tax Cas. (CCH) Paragraph 9555 (7th Cir. 1971); Hagg▇▇▇ ▇. 8 KAYE, ▇▇HO▇▇▇, ▇▇ER▇▇▇, ▇▇YS & ▇ANDLER SC International Services, Inc. -5- September 20, 1995 Commissioner, 241 F.2d 288, 57-1 U.S. Tax Cas. (CCH) Paragraph 9230 (9th Cir. 1956); Lest▇▇ ▇. ▇▇▇missioner, 32 T.C. 711 (1959); Bent▇▇ ▇. ▇▇▇missioner, 197 F.2d 745, 52-1 U.S. Tax Cas. (CCH) Paragraph 9367 (5th Cir. 1952); Rev. Rul. 55-540, 1955-2 C.B. 39. In analyzing that relationship, the courts have considered a number of objective factors, focussing on the relationship between the economic terms of the obligations of the parties and the fair market values of the rights conveyed. Frito-Lay, Inc. v. United States, 209 F. Supp. 886, 62-2 U.S. Tax Cas. (CCH) Paragraph 9809 at p. 86,256 (N.D. Ga. 1962). Factors indicating an intent to enter into a sale and purchase transaction include the following: 1. Portions of the periodic payments are made specifically applicable to equity to be acquired by the lessee. 2. The lessee will acquire title to the property upon payment of a stated amount of "rentals" that, under the contract, the lessee is required to make. 3. The total amount that the lessee is required to pay for a relatively short period of use constitutes an inordinately large proportion of the total sum required to be paid to secure the transfer of title to the property. 4. The agreed "rental" payments materially exceed the current fair rental value of the property. This may be indicative that the payments include an element other than compensation for the use of the property. 5. The property may be acquired under a purchase option at a price that is nominal in relation to the value of the property at the time when the option may be exercised, as determined at the time of entering into 9 KAYE, ▇▇HO▇▇▇, ▇▇ERMAN, HAYS & ▇ANDLER SC International Services, Inc. -6- September 20, 1995 the original agreement, or that is a relatively small amount when compared with the total payments that are required to be made under the lease and the option agreement. 6. Some portion of the periodic payments is specifically designat...

Case Law. Case law in Colorado is virtually non-existent with respect to cohabitation agreements; however, the Colorado Supreme Court as recognized the significance of these contracts.

Case Law. Many commentators continue to subscribe to the understanding of the law on the object criterion described here as the orthodox approach.32 Chapter 2 subjects the case law to a detailed critical legal analysis in order to determine more precisely the law on the object criterion. For the purposes of this chapter, however, this section provides a brief description of the case law that supports the orthodox approach in order to illustrate the European Courts’ contribution to the development of the orthodox approach.33 The clearest embodiment of the orthodox approach is found in European Night Services (ENS).34 The influence of the GC’s judgment in ENS on the legal interpretation of the object concept under Article 101(1) TFEU is profound and is consistently cited as authority for the proposition that the object concept operates 27 (▇▇▇▇▇▇▇, 2009), p5.