The Federal Court of Appeal ("FCA") decision in Mohr v. Hockey Canada ("Mohr")1 has confirmed an important limitation on the scope of the conspiracy offence in the Competition Act, but has reintroduced unnecessary uncertainty about the standards to be applied on motions to strike (the Canadian equivalent of a motion to dismiss).
The plaintiff proposed a class action alleging a conspiracy amongst professional and major junior hockey leagues to limit the opportunities of hockey players, in violation of s. 48 of the Competition Act. When the defendants filed a motion to strike on the basis that the claim had no reasonable prospect of success, the plaintiff brought a motion for leave to add a new claim alleging a violation of the general conspiracy offence in s. 45 of the Act.
The motion judge granted the defendants' motion to strike because it was plain and obvious that the claim did not disclose a cause of action under s. 48. He also dismissed the plaintiff's motion to amend, as the amendments did not plead a conspiracy within the scope of s. 45. The decisions on s. 45 and s. 48 were upheld on appeal, even though the FCA commented that there were errors related to the statutory interpretation process.
The Conspiracy Offences
The cartel offence in s. 45 of the Act prohibits conspiracies between competitors to fix or maintain prices, allocate markets or customers, or restrict production or supply.
In Mohr, the plaintiff's proposed amendment alleged a conspiracy involving the purchase or acquisition of players' services. However, s...
