Matthew Boswell, Commissioner of Competition, issued the following statement with respect to the Competition Tribunal’s recent decision to dismiss an application against the Vancouver Airport Authority (VAA):
“Following a careful review of the Tribunal’s decision, we have decided not to pursue an appeal in this matter.
“Although the Tribunal dismissed our application, the ruling provides valuable jurisprudence and helps to clarify certain aspects of the law.
“In particular, we are pleased that the Tribunal confirmed that not-for profit and regulated entities, such as VAA, are not exempt from complying with the abuse of dominance provisions of the Competition Act.
“Going forward, the Bureau will continue to vigorously enforce these provisions of the Act. This includes taking enforcement action, where appropriate, against regulated entities that are engaged in anti-competitive conduct.”
On September 29, 2016, the Bureau filed an application with the Competition Tribunal seeking to stop VAA from decreasing competition by restricting access at Vancouver International Airport (the Airport) to additional in-flight catering companies (beyond the two that then existed).
On October 17, 2019, the Tribunal dismissed the Commissioner’s application. The Tribunal determined that VAA is dominant in the galley handling market at the Airport and the market for access to the Airport’s airside to provide galley handling. The Tribunal also found that VAA has a plausible competitive interest in adversely affecting competition in the galley handling market. However, the Tribunal concluded that the overall character of VAA’s exclusionary conduct was not anti-competitive.
In addition, while the Tribunal determined that some anti-competitive effects resulted from VAA’s restrictions, these effects did not constitute a substantial prevention or lessening of competition.
Notably, after the Commissioner filed his application, VAA granted a licence in 2018 to a third firm to provide in-flight catering at the Airport. In its decision, the Tribunal indicated that the recent entry of this third firm made it more difficult for the Commissioner to demonstrate substantial anti-competitive effects.