Docket: A-428-16
Citation:
2017 FCA 181
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CORAM:
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GAUTHIER J.A.
DE MONTIGNY J.A.
WOODS J.A.
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BETWEEN:
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CARGURUS, INC.
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Appellant
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and
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TRADER
CORPORATION
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Respondent
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REASONS
FOR JUDGMENT
DE MONTIGNY J.A.
[1]
CarGurus, Inc. (CarGurus) appeals from a
decision of the Competition Tribunal (the Tribunal) dated October 14, 2016 (CarGurus,
Inc. v. Trader Corporation, 2016 CACT 15) (Reasons), which denied CarGurus’
request for leave under section 103.1 of the Competition Act, R.S.C.
1985, c. C-34 (the Act) to bring an application under sections 75, 76 and 77 of
the Act. These sections deal, respectively, with the restrictive trade practices
of refusal to deal, price maintenance and exclusive dealing. Pursuant to
section 13 of the Competition Tribunal Act, R.S.C. 1985 (2nd Supp.), c.
19, Tribunal decisions can be appealed to this Court as if they were judgments
of the Federal Court.
[2]
Before this Court, CarGurus has abandoned its
section 76 price maintenance claim and only appeals the Tribunal’s decision as
it pertains to sections 75 and 77. Having carefully considered the arguments
put forward by the parties, both orally and in writing, I am of the view that
this appeal should be dismissed.
I.
Background
[3]
The advent of digital marketing has transformed
how consumers purchase cars. Though transactions between buyers and sellers are
still conducted in person, much of the research is done online prior to the
actual sale via research websites called Digital Marketplaces. Information
available on these Digital Marketplaces will typically include, for each
vehicle, the make, model, year, Vehicle Information Number, mileage and price,
as well as photographs (these elements being referred to as Vehicle Listings).
Digital Marketplaces aggregate Vehicle Listings from a number of sources,
including vehicle manufacturers, automobile dealers, private sellers, and the marketplaces
themselves. Certain other businesses known as “Feed Providers”
also receive Vehicle Listings from dealers and provide them to Digital
Marketplaces.
[4]
On the evidence before this Court, there are
approximately 10 businesses in Canada which offer Digital Marketplaces for the
automotive sector, including the parties to this appeal. The appellant is a
private company registered under the laws of Massachusetts. Its website has
been active in the United States since 2007, and it entered into the Canadian
marketplace in May 2015 as “http://ca.cargurus.com”.
As for the respondent, it owns and operates an English and French Digital
Marketplace (“http://www.autotrader.ca” and “http://www.autohebdo.net”). Trader Corporation
(Trader) also offers “capture services” whereby their
employees actually create Vehicle Listings for dealers. A Trader employee or
contractor will visit the dealership to gather information and take photos of
the vehicle. These listings can then be posted on Trader’s websites, as well as
on the dealer’s own website. These listings can also be made available to other
Digital Marketplaces through a licensing process (referred to as syndication
agreement).
[5]
The core issue raised in the application for
leave was access to the supply of the Trader Vehicle Listings. Trader claims
that it holds copyright in photographs included in the listings it creates. In June
2015, Trader apparently received complaints from some dealers that their
vehicles were appearing for sale on CarGurus’ website without their permission.
In June 2015, Trader sent a letter to CarGurus through which it alleged that
CarGurus was “scraping” or “crawling” the Trader website; this is a technique
whereby computer software is used to search an online data source to identify
data of interest and then extract them from that source. Trader later sent a
draft syndication agreement to CarGurus for the use of its listings. CarGurus
rejected the proposed agreement and never entered into negotiations with
Trader, claiming that the terms of the agreement would prevent it from effectively
competing with Trader in the Canadian marketplace.
[6]
In December 2015, Trader commenced a copyright
proceeding seeking declarations that CarGurus had infringed Trader’s copyright
in relation to at least 150,000 photographs added to a website administered by
Trader pursuant to its capture services. That proceeding was pending when the
Tribunal heard the application, but the Ontario Superior Court of Justice has
since rendered judgment in favour of Trader, in April 2017 (Trader v.
CarGurus, 2017 ONSC 1841).
[7]
As a result of the copyright proceedings being
launched, CarGurus removed over one million photographs it obtained by crawling
dealer websites. The lack of access to Trader’s inventory and the resulting
decrease in page views and in advertising revenues were the basis for CarGurus’
application for leave before the Tribunal. CarGurus claimed that Trader engaged
in anticompetitive conduct, including refusing to licence Trader’s Vehicle Listings
to CarGurus on the usual trade terms, instructing third parties not to deal
with CarGurus, and improperly asserting copyright.
II.
The impugned decision
[8]
Part VIII of the Act sets out the matters
reviewable by the Tribunal, including restrictive trade practices that the
Tribunal can review on application either by the Commissioner of Competition or
by another person who has been granted leave. Pursuant to section 75, the
Tribunal has jurisdiction to review a situation where a person is unable to
obtain adequate supplies of a product on usual trade terms. If the test set out
in that section is met, the Tribunal may order that one or more suppliers of
that product accept the person as a customer. Under section 76, the Tribunal
can review situations of price maintenance and may make orders prohibiting that
behaviour. Under section 77, the Tribunal can review the practices of exclusive
dealing, tied selling, and market restriction. If the Tribunal finds that these
activities are occurring within the meaning of that provision, the Tribunal may
make orders prohibiting those practices.
[9]
After summarizing the facts, the parties’
submissions and the relevant legislative provisions, the Tribunal noted that
before granting leave, it must come to a twofold determination. First, it must
determine whether the application is supported by sufficient credible evidence
to give rise to a bona fide belief that the applicant may have been
either directly (for the purposes of applications brought under section
76 of the Act) or both directly and substantially (for the
purposes of applications brought under sections 75 and 77 of the Act) affected
in its business by the alleged practice (see respectively subsection 103.1(7.1)
and 103.1(7) of the Act). Second, it has to conclude that the alleged practice
could be subject to an order pursuant to the section under which the
restrictive trade practice falls.
[10]
CarGurus had argued that removal of the Trader
photographs and its inability to display the Trader Vehicle Listings led to
less traffic and was generating less leads to dealers, which has negatively
affected its revenue realization. More particularly, CarGurus had submitted to
the Tribunal that: 1) the number of multiple leads CarGurus can generate for
dealers has diminished significantly; 2) CarGurus has lost 60% of leads for
dealers whose Vehicle Listings are related to Trader; 3) CarGurus has lost
approximately 25% of its overall lead volume; 4) CarGurus’ conversion rate
(i.e. the percentage of visitors to the CarGurus website who contacted at least
one dealer about a car for sale) has decreased by 16%; and 5) detailed views of
CarGurus’ pages have dropped by 31%, leading to a corresponding 31% drop in
advertising revenues.
[11]
In its Reasons, the Tribunal proceeded on the
assumption that CarGurus, being a competitor of Trader, was directly affected
by its practices. Thus, for the purposes of sections 75 and 77, the Tribunal’s
analysis focused on the substantial nature of Trader’s impact on
CarGurus’ business. The Tribunal found that CarGurus’ evidence was lacking in
sufficient particulars and credibility. In particular, the Tribunal identified
the following five major problems with CarGurus’ evidence:
i.
The Tribunal found that there was “no reliable evidence on the proportion of CarGurus’ total
inventory of Vehicle Listings which is represented by the Trader Vehicle
Listings that were deleted from CarGurus’ website and that Trader allegedly
refuses to supply”. On this front, the Tribunal took particular issue
with CarGurus’ 42.5% market share figure, as it was apparently arrived at
without any consideration for Kijiji as a competitor (Reasons at paras. 72-78);
ii.
The Tribunal also found that CarGurus’ evidence
did not show an actual drop in existing or anticipated revenues. CarGurus’
showing of substantial harm was entirely based on the difference between its
actual and projected revenues, and the Tribunal criticized the fact that the
evidence of reduced revenues was based purely on estimates. It also found that
the basis upon which CarGurus came to its projections of anticipated sales had
to be submitted to satisfy it that the evidence was sufficient and credible
(Reasons at paras. 79-87);
iii.
CarGurus alleges substantial effect, yet it
expects and forecasts its revenues to continuously increase until the end of
December 2017. The Tribunal found that this made it difficult for it to see any
substantial impact on CarGurus’ business (Reasons at paras. 88-92);
iv.
Actual revenues posted by CarGurus from the time
it entered the Digital Marketplace business in Canada show an increase in
advertising revenues rather than an adverse effect caused by Trader, which
suggests that there are other sources of inventory supply remaining available
to CarGurus (Reasons at paras. 93-99); and
v.
The gap between CarGurus’ actual revenues and
its initial projections is in the same range, before and after Trader allegedly
refused to supply the Trader Vehicle Listings. For the Tribunal, this was
indicative of the decreases being attributable to inaccurate projections,
rather than to Trader’s conduct (Reasons at paras. 100-101).
[12]
Given the weaknesses in CarGurus’ evidence, the
Tribunal concluded it could not reasonably believe that CarGurus may be
directly and substantially affected in its business by Trader’s conduct.
CarGurus accordingly did not get past the first requirement of the leave test
found under subsection 103.1(7) of the Act.
[13]
As for the section 76 claim, the Tribunal turned
immediately to the second part of the leave test since CarGurus only needed to
show that its business was directly affected by the alleged reviewable
conduct of Trader. The Tribunal found that at least three of the required
elements set out in that provision were not met. It was accordingly determined
that, if heard on the merits, an order under that section would not be
possible. As already mentioned, this finding is not challenged on appeal.
III.
Issues
[14]
This appeal raises the following three issues:
A.
Did the Tribunal misapprehend the evidence on
Trader’s market share?
B.
Did the Tribunal misapply the test for leave
with respect to CarGurus’ projections of harm, requiring CarGurus to meet a
heightened evidentiary threshold?
C.
Did the Tribunal misapply the “but for” test for evaluating the issue of substantial
harm?
IV.
Analysis
A.
Did the Tribunal misapprehend the evidence on
Trader’s market share?
[15]
CarGurus has attempted to characterize its first
ground of appeal as a question of mixed fact and law. Yet, this Court has
cautioned against revisiting the Tribunal’s factual conclusions under cover of
challenging a question of mixed fact and law: Nadeau Poultry Farm Limited v.
Groupe Westco Inc., 2011 FCA 188, 419 N.R. 333 at para. 47 (Nadeau
FCA). In my view, this is precisely what the appellant is trying to do
here.
[16]
CarGurus essentially argues that the Tribunal
erred in finding that there was no reliable evidence on the proportion of
CarGurus’ total inventory of Vehicle Listings which was represented by the
Trader Vehicle Listings. According to counsel, CarGurus’ estimates that Trader
controls 42.5% of the upstream market is based on its internal analysis of
Vehicle Listings that it cannot obtain from any source other than, or without
the consent of, Trader. Instead, the Tribunal erroneously understood CarGurus
to be using its downstream estimates as a proxy for the upstream market. Since
the downstream market share estimates seemed suspect because CarGurus left
Kijiji.ca out of its market share estimates, the Tribunal was inevitably led to
believe that the upstream market share estimates must equally be faulty.
[17]
Whatever the merit of this argument, there is no
doubt in my mind that the question of whether Trader controls 42.5% of the
upstream market is a pure question of fact. There is no legal component in the
alleged error made by the Tribunal. As such, this issue is not properly before
us, as subsection 13(2) of the Competition Tribunal Act requires leave
of this Court in order for it to engage with questions of fact. Even if the
first question could somehow be characterized as a question of mixed fact and law,
it would be of no help to the appellant as this Court is bound by the findings
of facts of the Tribunal.
B.
Did the Tribunal misapply the test for leave
with respect to CarGurus’ projections of harm, requiring CarGurus to meet a
heightened evidentiary threshold?
[18]
CarGurus alleges that the Tribunal applied a
more stringent threshold for leave than would otherwise be required, and this
is evidenced by how it arrived at its conclusion regarding the second (i.e. no
basis for projections) and fifth (i.e. difference between actual and forecasted
revenues not attributable to Trader) issues regarding the perceived frailties
with CarGurus’ financial projections.
[19]
CarGurus argues that the onus for obtaining
leave under section 103.1 is low. The leave stage is a summary screening
process where the evidence is not tested and where the applicable standard of proof
is less than a balance of probabilities. It submits that demonstrating the
likelihood of substantial harm is necessarily based on projections as such a
demonstration is a forward-looking process. Relying on a previous decision of
the Tribunal (The Used Car Dealers Association of Ontario v. Insurance
Bureau of Canada, 2011 CACT 10 (Used Car)), CarGurus alleges that
the information tendered may be incomplete, and that it is not reasonable to
require hard and fast evidence on every point. Accordingly, the Tribunal
impermissibly raised the threshold requirements for leave in stating that
projections and forecasts are not enough to constitute credible and convincing
evidence of substantial effect on CarGurus’ business, and in requiring that the
basis of its projections be shown. This is particularly so given that CarGurus
was a new market participant, which should have prompted the Tribunal to relax
the evidentiary requirements set out in cases where the plaintiff is an
established player.
[20]
At the outset, I note that even though this is a
statutory appeal, principles of judicial review apply, rather than appeals
standards of review (Mouvement laïque québécois v. Saguenay (City), 2015
SCC 16, [2015] 2 S.C.R. 3 at para. 29, 43 and Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339). CarGurus
characterizes this error as a legal error that must be reviewed on a standard
of correctness, without providing any further explanation for that view. I
disagree with that characterization. What CarGurus challenges is not so much
the legal test itself, but its application to the facts of this case. Indeed,
CarGurus acknowledges at paragraph 45 of its Memorandum that the Tribunal
correctly described the summary screening role it is meant to play at the leave
stage; what it objects to is the extent of the evidence necessary to be
furnished at this stage, and particularly the requirement that some basis be
provided for financial projections. In other words, CarGurus’ real challenge is
not to the test applied by the Tribunal but to the Tribunal’s conclusion that
CarGurus’ evidence was insufficient to establish a reasonable possibility that
its business may be substantially affected by Trader’s practices. As the Court
stated in Canada (Director of Investigation and Research) v. Southam Inc.,
[1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at paras. 35, 45, questions about
whether the facts satisfy a legal test are deemed to be questions of mixed fact
and law. Such questions are reviewed on a standard of reasonableness.
[21]
CarGurus seems to be of the view that its
revenue projections should have been accepted simply because they were attached
to a sworn affidavit; any potential problems with these projections should have
been addressed at the merits stage (Appellant’s Memorandum of Fact and Law at paras.
48-49). Even if we accept, as the Tribunal did throughout its Reasons, that the
threshold is low and that there will inevitably be incomplete information at
the screening stage, there must still be sufficient, non-speculative and cogent
evidence to give the Tribunal bona fide grounds to believe that the
impact of Trader’s conduct on CarGurus’ business could reasonably be characterized
as a substantial effect.
[22]
In the case at bar, CarGurus provided the
Tribunal with a set of “initial projections” and
a set of “revised projections” purporting to
show the impact of Trader’s alleged conduct. Yet, as noted by the Tribunal, the
affidavit to which these projections were attached (as part of an exhibit) did
not explain how and by whom these calculations were performed. In the absence
of any background for these projections, the Tribunal was entitled to find that
the evidence was neither sufficient nor cogent and that the forecasts used by
CarGurus are speculative and only amount to a mere possibility of substantial
effect. As the Tribunal states emphatically at paragraph 83 of its Reasons:
I agree with CarGurus that it is only
required to provide “sufficient credible evidence” to satisfy the Tribunal that
there is a reasonable possibility that its business may be directly and
substantially affected by a refusal to deal. I am also mindful of the fact that
CarGurus does not have to wait until harm actually occurs before bringing an
application under subsection 103.1 of the Act […]. But sufficient, cogent
evidence is needed, even for anticipated harm. Relying on projections to
establish a substantial impact on a business under subsection 103.1(7) still
requires support in the form of clear and convincing evidence, which CarGurus
has not provided. A party relying on projections has the onus to at least
provide a basis for those projections.
[23]
Far from imposing an additional onus on
CarGurus, the Tribunal simply determined that CarGurus’ evidence was not
sufficient to meet the established legal test. Obviously, what constitutes
sufficient credible evidence will vary from case to case depending on the
context. That being said, there must still be credible and objective evidence
supporting CarGurus’ claim that it has been substantially affected in its
business by Trader’s practices.
[24]
CarGurus argues that the Tribunal’s conclusion
runs contrary to some previous Tribunal decisions; yet, a careful reading of
those decisions shows that the evidence available in those cases was clearly
more reliable than in the case at bar. In Used Car, for example, the
Tribunal found that the substantial effect test was met because the affected
portion of the applicant’s business accounted for more than 50% of the
applicant’s net income. While the Tribunal accepted that there is no obligation
on an applicant to provide data of earnings over time, there was at least
reliable and credible evidence of substantial harm caused by the respondent’s
refusal to supply the information in the year when the agreement between the two
parties was terminated. Moreover, it is worth noting that the passages relied
upon by CarGurus in its Memorandum to the effect that hard and fast evidence is
not required on every point, are found in the section of the Tribunal’s reasons
dealing with the second part of the leave test (i.e. whether an order could be
made).
[25]
In Nadeau Poultry Farm Limited v. Groupe
Westco Inc. et al., 2008 CACT 7, the applicant had provided figures showing
that the exact supply held by the respondents represented 48% of its overall
chicken processing business, thereby reducing its operations to approximately 40%
of its capacity. Again, the Tribunal was satisfied on that basis that it had
reason to believe that the applicant was directly and substantially affected in
its business by the respondents’ refusal to supply live chickens. That
conclusion was not challenged on appeal (Nadeau FCA).
[26]
In the case at bar, the Tribunal accepted that a
new entrant may have to rely on anticipated harm and projections to establish a
substantial impact on its business; but the party relying on such projections
bears the onus to at least provide a basis for those projections (Reasons at para.
83). This is consistent with another decision of the Tribunal, also involving a
claim by a plaintiff that Trader and other respondents refused to supply
Vehicle Listings on usual trade terms: Audatex Canada, ULC v. CarProof
Corporation, 2015 CACT 28. In that case, the Tribunal found that evidence
of anticipated harm will sometimes be sufficient, but there must still be “sufficient, cogent evidence” of the anticipated harm;
since the applicant was unable to show lost sales or revenues despite having
already lost its supply of Vehicle Listings data, the Tribunal concluded that
there was no sufficient credible evidence of substantial effect.
[27]
Once again, the problem with CarGurus’ evidence
of substantial harm is not so much that it relies exclusively on projections,
but that there is no background or explanation as to how these projections were
established. In those circumstances, the Tribunal could reasonably find that
the projections evidence amounts to no more than a mere possibility of
substantial effect and is speculative. The Tribunal came to a similar
conclusion in Mrs. O’s Pharmacy v. Pfizer Canada Inc., 2004 CACT 24, 35
C.P.R. (4th) 171, where the applicant complained that its financial viability
was threatened by the respondent’s decision not to supply a number of key
products because it was not in compliance with its terms of trade. The
applicant based its losses entirely on projections and on its inability to
fulfill the expectations of its business plan. The Tribunal found that such
evidence was insufficient and that causality was speculative, as many factors
could have had an impact on the growth or lack thereof of a new business. See
also, to the same effect: Stargrove Entertainment Inc. v. Universal Music
Publishing Group Canada, 2015 CACT 26 at para. 29.
[28]
To summarize, the threshold to obtain leave
under subsection 103.1(7) may be low, but this is not the same as saying that
there is no threshold. As this Court stated in Symbol Technologies Canada
ULC v. Barcode Systems Inc., 2004 FCA 339, [2005] 2 F.C.R. 254 at para. 23,
“[t]he threshold at the leave stage is low, but there
must be some evidence by the applicant and some consideration by the Tribunal
of the effect of the refusal to deal on competition in a market”.
Parliament clearly intended to limit private applications to persons who are
directly and substantially affected in their businesses by the alleged
practices. If the Tribunal is to perform its screening function, it cannot be
required to accept unsubstantiated assertions in an affidavit. Such an approach
would be contrary to Parliament’s intention and would strip the Tribunal of any
meaningful role in assessing leave applications.
[29]
In the case at bar, not only was CarGurus unable
to provide any background as to how the projections were established, but it
also failed to explain the difference between its initial projections and its
actual revenues. As noted by the Tribunal, CarGurus’ actual revenues were
consistently lower than its initial projections, even before Trader’s conduct
was alleged to have impacted CarGurus’ business. In the Tribunal’s words, “the gap between CarGurus’ actual revenues and its Initial
Projections is in the same range, before and after the Trader Conduct”
(Reasons at para. 100). This discrepancy was clearly further grounds to put in
doubt the accuracy of the projections, and the Tribunal was certainly entitled
to conclude, on that basis, that the claimed reduction in revenues could as
easily result from inaccurate projections as from Trader’s conduct.
[30]
CarGurus has not challenged this aspect of the
Tribunal’s conclusion, which also undermines the reliability and credibility of
its evidence of substantial effect. In light of all of the Tribunal’s findings
about CarGurus’ evidence on reduced revenues, and of the high degree of
deference to which the Tribunal is entitled on questions of fact, I have no
hesitation to find that it was reasonable for the Tribunal to conclude that the
evidence put forward by CarGurus was not sufficient credible evidence to
support a bona fide belief that CarGurus may have been substantially
affected. I would therefore dismiss this ground of appeal.
C.
Did the Tribunal misapply the “but for”
test for evaluating the issue of substantial harm?
[31]
CarGurus’ final ground of appeal is that the
Tribunal misapplied the “but for” test by
engaging in an absolute evaluation instead of a relative evaluation of the impact
of Trader’s alleged conduct on CarGurus’ business. This test was first
articulated by this Court in Canada (Commissioner of Competition) v. Canada
Pipe Company Ltd., 2006 FCA 233, [2007] 2 F.C.R. 3 at para. 37 (Canada
Pipe) in the following terms, albeit in the context of another restrictive
trade practice (abuse of dominant position):
The test mandated by paragraph 79(1)(c) is
not whether the relevant markets would or did attain a certain level of
competitiveness in the absence of the impugned practice, or whether the level
of competitiveness observed in the presence of the impugned practice is “high
enough” or otherwise acceptable. These are absolute evaluations, while the
statutory language of “effect of preventing or lessening…substantially” clearly
demands a relative and comparative assessment. In order to achieve the inquiry
dictated by the statutory language of paragraph 79(1)(c), the Tribunal must
compare the level of competitiveness in the presence of the impugned practice
with that which would exist in the absence of the practice, and then determine
whether the preventing or lessening of competition, if any, is “substantial”. […]
[32]
CarGurus acknowledges that the Tribunal
correctly articulated the test, but submits that it erred in applying it, focusing
on the growth in the projections and on the actual revenues instead of engaging
in the comparative exercise that the “but for”
test requires. This is clearly a question of mixed fact and law from which no
question of law can be extricated, as agreed by both parties, and it must
therefore be reviewed on the deferential standard of reasonableness. As this
Court stated in Tervita Corporation v. Commissioner of Competition, 2013
FCA 28, [2014] 2 F.C.R. 352 at para. 61, an appellate court may encounter difficulties
in fully grasping the economic and commercial aspects of a tribunal’s decision,
and must therefore defer to its findings on these issues, including the
inferences it draws from the evidence.
[33]
It may be that some paragraphs of the Tribunal’s
reasons, when read in isolation, may leave the impression that the Tribunal did
engage in the sort of absolute evaluation that this Court cautioned against in Canada
Pipe. But when the Tribunal’s reasons are read as a whole, there is no
basis for such a claim. First of all, the Tribunal was clearly alert and alive
to the “but for” analysis. Second, even when
dealing with CarGurus’ projections, the Tribunal did not rely exclusively on
the expected increased revenues but also on the uncertainty about the projections
and the lack of support on their basis, to find that CarGurus’ evidence was not
sufficient to give rise to a reasonable belief that it was substantially
affected in its business (Reasons at para. 92).
[34]
It is when discussing the fourth problem with
CarGurus’ evidence (its actual revenues since it entered into the market in
Canada as opposed to its projections) that the Tribunal appears to focus most
on an absolute evaluation of the kind rejected by Canada Pipe. At
paragraph 99 of its Reasons, the Tribunal states:
As the financial evidence provided by
CarGurus shows that actual revenues have been growing month after month since
the inception of its business, and have continued to grow since the alleged
refusal to deal and exclusive dealing practices are supposed to have affected
its business, I am unable to find that the “substantially affected” requirement
has been met.
[35]
If this was the only ground upon which the
Tribunal had found that the evidence was insufficient to give rise to a bona
fide belief that Trader’s practices could substantially affect CarGurus’
business, the appeal may well have to be granted. But this is only one of the
five problems the Tribunal had with CarGurus’ evidence. The four other
deficiencies identified by the Tribunal would be sufficient to find that
CarGurus had failed to demonstrate a substantial effect on its business. As
previously mentioned, the Tribunal also found that CarGurus underperformed
relative to its initial projections even before any anticompetitive conduct
allegedly began. This shortcoming, when combined with the absence of any
explanation as to how CarGurus’ projections were established, could no doubt
allow the Tribunal to find that the evidence adduced by CarGurus was not
sufficient to reasonably believe that CarGurus may have been substantially
affected by Trader’s conduct. This finding was clearly available to the
Tribunal and “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47);
as such, it should not be disturbed.
V.
Conclusion
[36]
For all of the above reasons, I am therefore of
the view that CarGurus has not raised any issue that would justify this Court
to interfere with the Tribunal’s decision. Given that conclusion, it is not
necessary to consider the matter of remedy.
[37]
I would therefore dismiss the appeal. At the
conclusion of the hearing, counsel were invited to make submissions on the
costs payable to the successful party. As a result of the parties’ agreement,
costs are therefore awarded to the respondent in the amount of $15,000 (inclusive
of fees, disbursements and taxes) in respect of the hearings at both the
Competition Tribunal and this Court.
“Yves de Montigny”
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“I agree
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Johanne Gauthier J.A.”
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“I agree
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J. Woods
J.A.”
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