CarGurus, Inc. v. Trader Corporation - Reasons for Order and Order regarding a request for leave to file affidavit evidence in response to an application for leave

CarGurus, Inc. v. Trader Corporation - Reasons for Order and Order regarding a request for leave to file affidavit evidence in response to an application for leave

The Tribunal partially granted Trader's request because certain narrowly focused, discrete affidavit evidence was necessary and relevant to the s.103.1 screening function (e.g. evidence on low-pricing motive, absence of exclusivity incentives, and availability of alternative data sources), while evidence that went to the merits or was not specific to the statutory elements (e.g. allegedly omitted materials from the copyright proceeding, evidence on major supplier status/Kijiji, and history of dealings/steps CarGurus could have taken) was excluded; accordingly the Tribunal allowed filing of specified paragraphs of the Draft Dunbar Affidavit (paras 1-4; para 5 limited; paras 9-14; paras...

Citation
2016 Comp Trib 12
Parties
Applicant: CarGurus, Inc.; Respondent: Trader Corporation
Court
Competition Tribunal
Jurisdiction
Canada
Judgment Date
9 June 2016
Procedural Posture
Leave to Make Application / Decision on Request to File Affidavit Evidence in Response to Leave Application (section 103.1)
Outcome
Leave to file affidavit evidence partially granted.
Legal Topics
Leave to Make Application, Refusal to Deal, Price Maintenance, Exclusive Dealing, Admissibility of Affidavit Evidence, Procedural Directions
Source Language
English
Competition Law Administrative Law Intellectual Property Leave to Make Application Refusal to Deal Price Maintenance Exclusive Dealing Admissibility of Affidavit Evidence +1 more

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Parties

CarGurus, Inc.

Applicant

Trader Corporation

Respondent

Procedural Posture

Leave to Make Application / Decision on Request to File Affidavit Evidence in Response to Leave Application (section 103.1)

Legal Issues

  1. 1 Whether respondent may file affidavit evidence with written representations under Rule 119(3) at the leave stage
  2. 2 Proper test for leave under s.103.1(7) of the Competition Act
  3. 3 Whether Draft Dunbar Affidavit contains discrete, necessary evidence relevant to screening function

Ratio Decidendi

The Tribunal partially granted Trader's request because certain narrowly focused, discrete affidavit evidence was necessary and relevant to the s.103.1 screening function (e.g. evidence on low-pricing motive, absence of exclusivity incentives, and availability of alternative data sources), while evidence that went to the merits or was not specific to the statutory elements (e.g. allegedly omitted materials from the copyright proceeding, evidence on major supplier status/Kijiji, and history of dealings/steps CarGurus could have taken) was excluded; accordingly the Tribunal allowed filing of specified paragraphs of the Draft Dunbar Affidavit (paras 1-4; para 5 limited; paras 9-14; paras...

Court Disposition

Leave to file affidavit evidence partially granted.

Orders

  • Trader is permitted to file affidavit evidence containing paragraphs 1 to 4 of the Draft Dunbar Affidavit; paragraph 5 insofar as it responds to specific allegations in the Second Blue Affidavit; paragraphs 9 to 14; and paragraphs 16 to 19.
  • Trader is directed to delete and not file the contents of paragraphs 6 to 8, paragraph 15, and paragraphs 20 to 22 of the Draft Dunbar Affidavit.