CT-2000/004 THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34; as amended IN THE MATIER OF an Application by Air C 104.1(7) of the Competition Act
AIRCANAD -and COMMISSIONER OF COMPETITION NOTICE OF APPLICATION AKE NOTICE that Air Canada will make an application to the Competition Tribunal, on a day and place to be determined by the Competition Tribunal, pursuant to • subsection 104.1(7) of the Competition Act (the "Act") for: (a) if necessary, a Confidentiality Order regarding the Affidavit material filed by the Applicant;
(b) an Order setting aside the October 12, 2000 temporary order (the "Temporary Order") made by the Commissioner of Competition (the "Commissioner") under section 104.1 of the Act against Air Canada;
(c) in the alternative if the Temporary Order is not set aside, an Order varying the Temporary Order by deleting the words "or other similar fares" from the Temporary Order; and • (d) in the alternative if the Temporary Order is not set aside and if necessary, an Order varying the Temporary Order by deleting the Toronto-Windsor and Ottawa-Windsor routes from the Temporary Order; (e) such further and other Orders that may be appropriate. KOLERSE\4345630\ 1
f 1 E 0 t Respondent
-2-THE GROUNDS OF THE APPLICATION ARE: (a) there was no basis for the Commissioner to have made the Temporary Order;
(b) the anti-competitive act identified by the Commissioner in the Temporary Order is not anti-competitive pursuant to the operative legislation and Regulations;
(c) in any event, Air Canada did not engage in anti-competitive conduct; (d) at the time of the issuance of the Temporary Order, the Commissioner was in possession of information and material that indicated that Air Canada did not act in an anti-competitive fashion;
(e) the Commissioner has failed to consider the required elements relating to what appears to be allegations of predatory pricing and abuse of dominance and predatory behaviour;
(f) matching prices (which Air Canada did not in fact do) is not in any event anti-competitive; • (g) the Commissioner does not have any basis to assert that Air Canada has priced below its avoidable costs; (h) the Commissioner has stated that he "needs more time" to complete his inquiry, which is not a proper basis for a Temporary Order;
(i) the Commissioner's reliance on the alleged likely elimination of or other substantial harm to CanJet is not supported by the evidence available and is inconsistent with CanJet' s public statements;
G) the Commissioner has failed to consider the existence and impact of other competitors to both CanJet and Air Canada;
(k) the pre-eminent expert economist on this issue in an airline industry • context has stated that the Commissioner's position that the relevant fares were anti-competitive is "totally indefensible"; (1) the words "or similar fares" in the Temporary Order are vague and inappropriate;
(m) the Windsor routes (included in the original Temporary Order) should not be included on the list of Restricted Routes as CanJet is no longer operating on those routes;
KOLERSE\4345630\ 1 -----------------------------------'"''"~'"'·····"'·'"''~ .... ~-.;, ... ,..._"""""'~------
-3-(n) Subsection 104.1(7) of the Act; (o) The circumstances described in the Affidavits filed in support of this Application; and
(p) Such other grounds as counsel may advise and as may be permitted. THE MATERIAL RELIED UPON BY AIR CANADA INCLUDES: (a) The Affidavit of Lise Fournel sworn October 31, 2000, and exhibits thereto, FILED ON A SEALED CONFIDENTIAL BASIS;
(b) The Affidavit of John M. Baker sworn October 31, 2000 and the exhibits thereto;
(c) The Affidavit of William J. Baumol sworn November 1, 2000 and the exhibits thereto; and
(d) Such further and other material as counsel may advise and as may be permitted. • THE ADDRESS FOR SERVICE ON THE RESPONDENT IS: Francois B. Cote Department of Justice Competition Law 22nd Floor, Portage I 50 Victoria Street Hull, Quebec K1AOC9
Counsel to the Commissioner of Competition • AIR CANADA proposes that the hearing of this Application be held in Ottawa or Toronto, Ontario, and the proceedings be conducted in the English
language.
KOLERSE\ 4345630\ 1
-4-For purposes of this Application, service of all documents on Air Canada can be served on: STIKEMAN ELLIOTT Barristers and Solicitors 5300 Commerce Court West 199 Bay Street, P.O. Box 85 Toronto, Ontario M5L1B9
Katherine L. Kay Tel: (416) 869-5507
Eliot N. Kolers Tel: (416) 869-5637
Fax: (416) 947-0866 • DATED at Toronto, Ontario this l•t day of Novem~er, 200~ <.@i!&f-u-STIKEMAN ELLIOTT Barristers and Solicitors 5300 Commerce Court West 199 Bay Street, P.O. Box 85 Toronto, Ontario M5L1B9
Tel: (416) 869-5507 Fax: (416) 947-0866 • Solicitors for the Applicant KOLERSE\ 4345630\ 1
AIR CANADA And COMMISSIONER OF COMPETITION CT-2000/004 Applicant Respondent THE COMPETITION TRIBUNAL
NOTICE OF APPLICATION STIKEMAN ELLIOTT Barristers & Solicitors 5300 Commerce Court West 199 Bay Street Toronto, Canada M5L 1B9
Katherine L. Kay Tel: (416) 869-5507
Eliot N. Kolers Tel: (416) 869-5637
Fax: (416) 947-0866 Solicitors for the Applicant
KA YI<\ 4351912\ 1 • •