Tribunal Dismisses B-Filer’s Refusal to Deal Application

On December 20, 2006, the Competition Tribunal released its decision in B-Filer Inc. v. The Bank of Nova Scotia, the first fully contested case under the amended Section 75 of the Competition Act and the first contested case brought as a private action. After a four-week hearing, the Tribunal ruled that the applicants failed to establish any of the required Section 75 elements.* The complaint centered on Scotiabank’s termination of various banking services that it had previously supplied to GPay (B–Filer’s operating name) that GPay had been using to provide its online debit payment service. The Tribunal agreed with Scotiabank’s economic expert that the Chrysler test is the appropriate one for defining product markets relating to Section 75(1)(a), while rejecting the use of the hypothetical monopolist test as proposed by GPay’s economics expert. The Tribunal also concluded that the termination would not adversely affect (downstream) competition (GPay claimed that Interac Online, in which Scotiabank participates, was a competing debit payment service), as required in the new Paragraph 75(1)(e); and, in fact, it concluded that the termination would not have any effect on competition.