Documentation

Informations sur la décision

Consumers Council - Exposé des faits et du droit à l’appui de l’avis de demande en vertu de l’article 103.1

Collection	Documentation
Date de dépôt	2025-12-22
Numéro de dossier	CT-2025-008
Type de document	Actes de procédure
Statut	En cours
Type d'affaire	Permission de présenter une demande
Article(s) de la Loi sur la concurrence	article 103.1 - Permission de présenter une demande en vertu des articles 74.1, 75, 76, 77, 79 ou 90.1
Numéro d'instance	3

Contenu de la décision

Attention : ce document est disponible en anglais seulement.

File No.

COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34 (the “Competition Act”); AND IN THE MATTER OF an application by the Consumers Council of Canada (“CCC”) for an order pursuant to section 103.1 of the Competition Act granting leave to bring an application under sections 77 and 79 of the Competition Act;

AND IN THE MATTER OF an application by the CCC for an order pursuant to sections 77 and 79 of the Competition Act;

B E T W E E N:

CONSUMERS COUNCIL OF CANADA

Applicant

and LIVE NATION ENTERTAINMENT, INC., TICKETMASTER LLC, LIVE NATION CANADA, INC., LIVE NATION ONTARIO CONCERTS GP, INC., RESEAU ADMISSION ULC, TICKETMASTER CANADA LP, and TICKETMASTER CANADA ULC Respondents

MEMORANDUM OF FACT AND LAW (Leave under section 103.1 of the Competition Act)

TABLE OF CONTENTS

PART I - STATEMENT OF FACTS 1. This memorandum adopts the definitions set out in Part A and the facts set out in Part C of the Notice of Application for Leave. There is evidence in the record to support each of the facts. Some of the highlights in the evidence are summarized below.

A. 2.

Market Definitions This complaint alleges five relevant markets:

(a)

(b)

(c)

(d)

(e)

Venue Market: The market for offering the services of Venues to Artists;

Venue Promotion Market: The market for promoting Venues;

Artist Market: The market for offering the services of Artists to Venues;

Artist Promotion Market: The market for promoting Artists; and

Primary Ticketing Market: The market for conducting first sales of tickets.

What follows is the best available evidence that each of these markets exist.

4. On May 23, 2024, the United States Department of Justice (“US DOJ”) an 30 state and district Attorneys General sued the respondents, Live Nation Entertainment, Inc. and Ticketmaster LLC, for essentially the same conduct alleged in this case. The amended complaint (the “US Complaint”) alleged markets virtually identical to the Venue Market, 1 the Venue Promotion Market, 2 the Artist Promotion Market, 3 and the Primary Ticketing Market. 4 The main differences

1 Amended complaint in the US DOJ case (“Amended Complaint”) at paras 207-212, Exhibit FF to the Affidavit of Michael Carrier sworn December 15, 2025 (“Carrier Affidavit”), pp 3313-3315. 2 Amended Complaint at paras 192-196, Exhibit FF to the Carrier Affidavit, pp 3308-3310. 3 Amended Complaint at paras 200-204, Exhibit FF to the Carrier Affidavit, pp 3311-3312. 4 Amended Complaint at paras 164-168, Exhibit FF to the Carrier Affidavit, pp 3299-3300.

were that the US DOJ alleged that the relevant markets (a) were limited to “large amphitheatres” or “major concert venues”; and (b) may be limited to “smaller, regional” markets.

5. On March 28, 2025, those respondents filed an answer, which did not contest that those markets exist, but alleges that the terms “large amphitheatres”, “major concert venues”, and “smaller, regional” markets are vague and undefined, and not used in the industry, so the markets should not be limited in those ways. 5 This suggests some basis in fact for the existence of these markets, and that expert evidence will be needed to assess whether these markets are limited to larger Venues and whether their geographic scope is North American versus regional.

B. Market Share and Market Power 6. The applicant does not know the Respondents’ market shares in the five markets listed above, and has no way of obtaining that information without discovery. What follows is the best available information on their market shares and market power.

7. Professor Michael Carrier teaches competition law. His research focuses on the application of competition law to concentrated and vertically integrated industries. He also wrote one of the leading articles on antitrust in the live entertainment market. During that process, he conducted extensive research on the structure and operation of the live entertainment industry. 6

8. Mr. Carrier provided a basis in fact that the Respondents have a dominant position as Promoters and Ticketers, and that government reports going back more than a decade have identified persistent concerns about concentration in these markets. This affidavit also identified

5 Amended Complaint at paras 164-168, 192-196, 200-204, 207-212, Exhibit FF to the Carrier Affidavit, pp 3299-3300, 3308-3315. 6 Carrier Affidavit at paras 1-5, pp 1-2.

concerns about the Respondents increasing barriers to entry, eliminating competitors, increasing prices, and reducing innovation in these markets. 7

(i) Primary Ticketing Market 9. According to their annual report for 2024, in 2024, the Respondents distributed 637,731,000 tickets, their revenue from ticketing was $2,988,685,000 USD, and their adjusted operating income (“AOI”) from ticketing was 37.6%. 8 Compared to 2022, those numbers represent an increase in number of tickets distributed of 87,056,000 (15.8%) and an increase in revenue from ticketing of $750,067,000 USD (33.5%). Their AOI margin from concerts in 2022 was 37.0%, so it has been stable or slightly increasing. 9

10. At a hearing of two New York Senate committees on April 22, 2021 (the “New York Senate Hearing”), Ticketmaster’s Executive Vice President of Global Music, David Marcus, testified under oath that Ticketmaster held an 80% market share in primary ticketing in the United States. 10

11. The number of tickets distributed, amount of revenue, and Mr. Marcus’ admission suggest substantial market share.

7 Carrier Affidavit at paras 15, 18, 20, 22, pp 4-8. 8 Live Nation Entertainment 2024 Annual Report (“2024 Annual Report”) at pp 36, 38, Exhibit Q to the Carrier Affidavit, pp 3008, 3010. 9 2024 Annual Report at pp 35, 37, Exhibit Q to the Carrier Affidavit, pp 3007, 3009. 10 Transcript of hearing before New York Senate Standing Committees on Investigations and Government Operations and Commerce, Economic Development, and Small Business on April 22, 2021 (“NY Senate Transcript”) at pp 17-18, Exhibit E to the Carrier Affidavit, pp 623-624.

12. The fact that the Respondents have a high and stable (even slightly increasing) AOI margin suggests market power. In addition, the fact that the increase in their revenue substantially outpaced the increase in the number of tickets distributed also suggests market power.

(ii) Venue, Venue Promotion, Artist, and Artist Promotion Markets 13. According to their website, the Respondents own or operate many Venues in Canada, including Rogers Stadium (50,000 people), Budweiser Stage (16,000 people), Deer Lake Park (10,000 people), History Toronto (2,500 people), History Ottawa (2,000 people), Malkin Bowl (2,000 people), Danforth Music Hall (1,427 people), Midway Music Hall (1,300 people), The Kee to Bala (1,200 people), Commodore Ballroom (990 people), The Opera House (950 people), Mod Club (600 people), and Velvet Underground (440 people). 11

14. The Respondents control far more Venues than they own. While they only own 22 Venues in North America, they control an additional 288 Venues in North America as lessors, operators, holders of exclusive booking rights, or equity holders. 12

15. According to their 2025 annual report, the Respondents acted as promoter for 11,000 Artists and manager for an additional 380 Artists, which they believe makes them “one of the world’s leading artist management companies based on the number of artists represented,” with “[o]ur artist management companies manag[ing] music artists and acts across all music genres”. 13

11 12 13

Screenshot from Live Nation webpage “Featured Venues”, Exhibit R to the Carrier Affidavit, pp 3092-3097. 2024 Annual Report at p 7, Exhibit Q to the Carrier Affidavit, p 2979. 2024 Annual Report at pp 2-3, Exhibit Q to the Carrier Affidavit, pp 2974-2975.

16. In press releases as far back as 2019, the Respondents claim to have “exclusive partnerships with thousands of venues, artists, sports leagues, and performing arts centers and theaters”.

17. In 2024, the Respondents’ revenue from concerts (i.e. the Venue and Artist sides of the market) was $19,024,302,000 USD.

18. The number of Venues and Artists controlled and the amount of revenue in the concerts segment suggests substantial market share in the Venue Market, the Venue Promotion Market, the Artist Market, and the Artist Promotion Market.

19. According to their 2025 annual report, in 2024, the Respondents’ AOI margin from concerts was 2.8%. 16 Their AOI margin from concerts has been predatorily low for years: 1.7% in 2023, 17 1.3% in 2022,

and even negative 4.7% in 2021.

20. These margins are consistent with predatory pricing. As described further below, the Respondents are exercising their market power in these four markets (the Venue, Venue Promotion, Artist, and Artist Promotion Markets) in order to force Venues and Artists to use their services in the Primary Ticketing Market, and thereby preserving their high margins.

21. Industry participants have confirmed as much. At a hearing of the US Senate Committee on the Judiciary on the Respondents’ practices on January 23, 2024 (the “US Senate Hearing”), the CEO of Jam Productions – a competitor Artist Promoter – explained under oath that, “When

14 Ticketmaster press release, “Golden State Warriors And Ticketmaster Extend Partnership To Chase Center” (June 10, 2029). 15 2024 Annual Report at p 37, Exhibit Q to the Carrier Affidavit, p 3009. 16 2024 Annual Report at p 37, Exhibit Q to the Carrier Affidavit, p 3009. 17 Live Nation Entertainment 2023 Annual Report (“2023 Annual Report”) at p 37, Exhibit P to the Carrier Affidavit, p 2888. 18 Live Nation Entertainment 2022 Annual Report (“2022 Annual Report”) at p 36, Exhibit O to the Carrier Affidavit, p 2766. 19 2022 Annual Report at p 36, Exhibit O to the Carrier Affidavit, p 2766.

Live Nation loses money on a concert, they can make up for that with operating income from ticketing and sponsorships. We cannot do that. We do not have those.” 20

22. The Respondents also exercise market power in these four markets by imposing excessive fees on Artists. In the US Senate Hearing, an Artist testified under oath:

At the end of the show, costs will have eaten into most of the money made that evening, and due to Live Nation’s control across the industry, we have practically no leverage in negotiating them. If they want to take 10 percent of the revenues and call it a facility fee, they can and have. If they want to charge $30,000 for the house nut, they can and have. And if they want to charge us $250 for a stack of 10 clean towels, they can and have. …

Why is it standard for Live Nation to take a 20 percent commission on our merchandise sales while we never receive a cent of their ancillary revenues like concessions, alcohol, and parking? 21

C. The Respondents’ Misconduct (i) Threatening Venues 23. This application alleges that Live Nation threatened Venues – by refusing to let Artists work with them – if the Venues did not (a) retain Ticketmaster as their exclusive Ticketer; (b) retain Live Nation as their exclusive Venue Promoter; (c) sign exclusivity agreements for long periods; and (d) refuse to work with Artists that the Respondents do not control.

24. Professor Carrier provided a basis in fact that the Respondents enter into exclusive ticketing and promotion agreements, and use those to control Venues’ access to Artists.

20 Transcript of hearing before US Senate Judiciary Committee on January 24, 2023 (“US Senate Transcript”) at p 11, Exhibit D to the Carrier Affidavit, p 317. 21 US Senate Testimony at pp 17-18, Exhibit D to the Carrier Affidavit, pp 323-324. 22 Carrier Affidavit at paras 22-23, 32, pp 8, 13.

25. The New York Times identified and corroborated numerous instances of the Respondents threatening to pull Artists from Venues if they worked with competitor Promoters (like AEG) or competitor Ticketers (like SeatGeek), and following through on those threats in the rare cases where Venues persisted in working with competitors. 23

26. In early 2010, the US DOJ obtained a consent order prohibiting the Respondents from retaliating against Venues considering switching to competitor Ticketers, threatening Venues, or conditioning services on those Venues refraining from working with any other company, all for 10 years. 24 On January 8, 2020, the US DOJ moved to extend and strengthen the order because the Respondents had repeatedly breached those terms. The US DOJ concluded that Venues “have come to expect that refusing to contract with Ticketmaster will result in the venue receiving fewer Live Nation concerts or none at all. Given the paramount importance of live events to a venue’s bottom line, this is a loss that most venues can ill-afford to risk”. 25 The Respondents consented to the extension and modification of the order, and the court extended and modified it accordingly. 26

27. At the New York Senate Hearing, Ticketmaster’s Executive Vice President of Global Music testified under oath that Ticketmaster’s standard contracts with Venues make Ticketmaster the Venue’s “exclusive ticketing agent”, the contracts are “multi-year” agreements, Ticketmaster

23 New York Times article dated April 1, 2018, Exhibit T to the Carrier Affidavit, pp 3103-3106. See also Voice of OC article dated July 25, 2023, Exhibit BB to the Carrier Affidavit, pp 3177-3182. 24 US Federal Register, Volume 75, No 27 (February 10, 2010) at p 6719. See also Consent Agreement filed in CT-2010-001 (January 25, 2010) at para 26. 25 Motion to Modify Final Judgment and Enter Amended Final Judgment (document 22) in United States of America v Ticketmaster Entertainment, Inc, case no. 1:10-cv-00139-RMC, pp 6-13. 26 Amended Final Judgment (document 29) in United States of America v Ticketmaster Entertainment, Inc, case no. 1:10-cv-00139-RMC.

negotiates for how to set Fees (presumably seeking higher Fees), and Ticketmaster gets a cut of those Fees – indeed, those Fees are “the way we make the money – we make our money”. 27

28. At the US Senate Hearing, the CEO of SeatGeek – a Ticketer – testified under oath that “venues fear losing Live Nation concerts if they do not use Ticketmaster”, 28 and that, in response to antitrust scrutiny, Ticketmaster started moving from its standard five year exclusivity agreement to ten year exclusivity agreements. 29

(ii) Threatening Artists 29. This application alleges that Live Nation threatened Artists – by refusing to let Venues work with them – if Artists did not (a) retain Ticketmaster as their exclusive Ticketer, including refraining from making any direct sales to Fans; (b) retain Live Nation as their exclusive Artist Promoter; (c) sign exclusivity agreements for long periods; and (d) refuse to work with Venues that the Respondents do not control.

30. Mr. Carrier swore that the Respondents enter into exclusive ticketing and promotion agreements, and use those to control Artists’ access to Venues.

31. At the US Senate Hearing, an Artist testified under oath that, “When an artist plays these venues, they are required to use Live Nation as the promoter. … As with promotion, if an artist plays at a Live Nation venue, the artist has no choice but to have the show ticketed by Ticketmaster.” 31

27 28 29 30 31

NY Senate Transcript at pp 18-19, 22, Exhibit E to the Carrier Affidavit, pp 624-625, 628. US Senate Transcript at p 10, Exhibit D to the Carrier Affidavit, p 316. US Senate Transcript at p 24, Exhibit D to the Carrier Affidavit, p 330. Carrier Affidavit at paras 22-23, 32, pp 8, 13. US Senate Transcript at p 17, Exhibit D to the Carrier Affidavit, p 323.

32. According to their 2025 annual report, the Respondents have agreements with Artists that extend beyond 2029 under “non-cancelable contracts” where the Guarantees are $481,198,000 USD. 32 This confirms that the Respondents have many, long-term exclusivity agreements.

D. Harms to Competition 33. This application alleges that the Respondents (a) erected barriers to competition by Venue Promoters, Artist Promoters, and primary market Ticketers; (b) forced Venues to pay supra-competitive Rebates and Ticketing Fees to the Respondents; (c) allowed the Respondents to pay sub-competitive Artist Payments to Artists, and forced Artists to pay supra-competitive Rents to Venues, including the Respondents; and (d) forced Fans to pay supra-competitive Fees. 33

34. The magnitude of Rebates, Ticketing Fees, Artist Payments, and Fees is confidential, so the applicant has no way of calculating the effects of the Respondents’ conduct without discovery. What follows is the best available information on those rates.

35.

(i) Excluding Competitor Ticketers At the US Senate Hearing, the CEO of SeatGeek – a Ticketer – testified under oath that:

Typically, we will go to a prospective client. We will show them our technology. They will get excited. They will get excited about how it is going to make the experience better for their fans and allow them to run their business better. And then they will start to think about the concert threat, and they will talk, and discussions will often close at that point because they have heard or have been explicitly threatened in a way that they know they will lose concerts if they move away from Ticketmaster. 34

32 33 34

2024 Annual Report at p 82, Exhibit Q to the Carrier Affidavit, p 3054. Notice of Application for Leave at paras 75-86. US Senate Transcript at pp 23-24, Exhibit D to the Carrier Affidavit, pp 329-330.

(ii) Excluding Competitor Promoters 36. At the US Senate Hearing, in sworn testimony, the CEO of Jam Productions – a competitor Artist Promoter – provided a list of Artists that the Respondents threatened into ceasing to work with Jam Productions, and provided another list of Artists that the Respondents threatened into refusing to talk with Jam Productions. 35

37. As mentioned above at paragraphs 19 -21, the Respondents set predatory prices as Promoters because their misconduct allows them to recoup those costs through high margins in the Primary Ticketing Market. Competitor Promoters are excluded from acting as Ticketers, so they cannot match those predatory prices and cannot effectively compete.

(iii) Harms to Venues 38. Professor Carrier provided some basis in fact that independent Venues – i.e. Venues not controlled by the Respondents or OVG – suffered a substantial reduction in the number of shows they were able to attract; 36 and that the Respondents extract supra-competitive compensation and commitments from Venues, and in particular take the sponsorship rights. 37 Sponsorship is the highest-margin line of business in the live entertainment industry. For example, between 2022 and 2024, the Respondents’ adjusted operating margin rose from 61.1% to 63.9%. 38

(iv) Harms to Artists 39. According to a leaked internal memo, in 2021, Live Nation (i) rolled out an across-the-board 20% cut to Guarantees; (ii) mandated that Artists repay double their Guarantee if the Artist

35 US Senate Transcript at p 97, Exhibit D to the Carrier Affidavit, p 403. 36 Journal of Sports & Entertainment Law article at p 24, Exhibit A to the Carrier Affidavit, p 40; New York Times article dated April 1, 2018, Exhibit S to the Carrier Affidavit, pp .3104-3105, 3111, 37 Voice of OC article dated July 25, 2023, Exhibit BB to the Carrier Affidavit, pp 3178-3179; Media in Canada article dated January 6, 2017, Exhibit LL to the Carrier Affidavit, p 3556. 38 2024 Annual Report at p 39, Exhibit Q to the Carrier Affidavit, p 3011.

cancelled a show; (iii) mandated that Artists get none of their Guarantee if a show is cancelled due to weather; (iv) mandated that Artists only get 25% of their Guarantee if a show is cancelled due to low ticket sales; (v) mandated that Artists give up the rights to video recordings of the show; and (vi) prohibited Artists from obtaining sponsorship, or promoting “bands onstage or in its productions”. 39 In a competitive Artist Promoter Market, Live Nation could not have unilaterally imposed any of these changes.

(v) Harms to Fans 40. In 2018, the United States Government Accountability Office found that Fees on tickets in the primary market averaged 27%. 40 It suggested that Ticketmaster’s dominant position in the Primary Ticketing Market, coupled with Live Nation’s dominant position as a Promoter, was responsible, and hinted that with more competition, Fees could fall to between 10% and 15%. 41

E. Canada-Specific Evidence 41. Mr. Carrier provided a basis in fact that, based on his research into the structure of the live entertainment industry, the Respondents appear to have a significant presence and market power in Canada, 42 that they continue to expand at a rapid pace in Canada, 43 and that they operate in a consistent manner in the United States and Canada, engaging in the same impugned conduct. 44

42. Fees for shows promoted by the Respondents in Canada are even larger than for shows they promote in the United States. On June 17, 2019, the Competition Bureau found that the fees

39 Rolling Stone article dated June 17, 2020, Exhibit W to the Carrier Affidavit, pp 3132-3137. 40 US Government Accountability Office Report (“US GAO Report”) at p 15, Exhibit F to the Carrier Affidavit, p 853. 41 US GAO Report at pp 29-30, Exhibit F to the Carrier Affidavit, pp 867-877. 42 Carrier Affidavit at para 28, p 12. 43 Carrier Affidavit at paras 30-31, 33, 35, pp 12-15. 44 Carrier Affidavit at paras 14, 32, 35, p 4, 13, 15.

ranged from 20% to over 65% of advertised prices. 45 This suggests that the harms to Fans in Canada are possibly larger than the harms to Fans in the United States.

PART II - POINTS IN ISSUE 43. There are two points in issue:

(a)

(b)

What is the test for public interest standing under section 103.1(7)?

Does the CCC satisfy that test with respect to its proposed application under sections 77 and/or 79?

PART III - SUBMISSIONS 44. On June 20, 2025, 46 an amendment to section 103.1(7) came into force allowing the Tribunal to grant leave if “it is in the public interest to do so”. As of the date this application is filed, the new provision has yet to be interpreted.

A. What is the Test for Public Interest Standing? 45. When interpreting a statutory provision, the court must consider (i) the grammatical and ordinary meaning of the words of the provision (ii) in their entire context; (iii) the intention of Parliament; and (iv) the object and scheme of the act in which the provision is contained. 47 Below, each of those is considered to identify factors that might be relevant when crafting a new test. Section (v) draws all of those factors together to propose the correct test.

45 46 47

Competition Bureau press release dated June 27, 2019, Exhibit SS to the Carrier Affidavit, pp 3591-3593. Bill C-59, s 272. Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21.

46.

(i) Ordinary Meaning of the Words The provisions to be interpreted state as follows (emphasis added on relevant words):

103.1(1) Any person may apply to the Tribunal for leave to make an application under section 74.1, 75, 76, 77, 79 or 90.1. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under that section.

103.1(7) The Tribunal may grant leave to make an application under section 75, 77, 79 or 90.1 if it has reason to believe that the applicant is directly and substantially affected in the whole or part of the applicant’s business by any conduct referred to in one of those sections that could be subject to an order under that section or if it is satisfied that it is in the public interest to do so.

103.1(1) Toute personne peut demander au Tribunal la permission de présenter une demande en vertu des articles 74.1, 75, 76, 77, 79 ou 90.1. La demande doit être accompagnée d’une déclaration sous serment faisant état des faits sur lesquels elle se fonde.

103.1(7) Le Tribunal peut faire droit à une demande de permission de présenter une demande en vertu des articles 75, 77, 79 ou 90.1 s’il a des raisons de croire que l’auteur de la demande est directement et sensiblement gêné dans tout ou partie de son entreprise en raison de l’existence de l’un ou l’autre des comportements qui pourraient faire l’objet d’une ordonnance en vertu de l’un de ces articles ou s’il est convaincu que cela servirait l’intérêt public.

(a) Ordinary Meaning of the Words 47. The ordinary meaning of the highlighted phrase is that granting leave would be of value to the public, over and above the interests of the applicant(s) and respondent(s).

48. Value to the public can take many forms, whether or not the case is successful. A successful outcome may be of value to the public where the alleged misconduct affects other market participants, other industries, consumers, workers, or competition and innovation generally in an industry. Granting leave to litigate the case may be of value to the public – even if the case does not succeed – to develop the law on novel issues or to act as a signal to dominant companies that the Bureau’s limited resources will not prevent enforcement of competition law.

48 Competition Act, RSC 1985, c C-34, ss 103.1(1), 103.1(7). 49 See e.g. Black’s Law Dictionary, 10th ed, sub verbo “public interest”: “1. The general welfare of a populace considered as warranting recognition and protection. 2. Something in which the public as a whole has a stake”.

(b) Well-Understood Legal Meaning 49. When Parliament uses a term with a well-understood legal meaning, it is presumed to intend to incorporate that legal meaning into the statute. 50 In this case, there is no well-understood legal meaning in the context of a statutory test. As explained below, there is a common law test, but at least one of the purposes underlying that common law test is inapplicable to a statutory test, so only certain aspects of the common law test should apply to the statutory test.

(1) No Clear Statutory Test 50. There is no definition of “public interest” in the Competition Act, and no other Canadian statute that provides for a private right of action if it is in the public interest.

51. Commentators have posited that the most analogous statutory test is the one in section 127 of Ontario’s Securities Act, which allows a regulator to intervene if it is in the public interest for it to do so. In that context, an intervention will advance the public interest if it would advance the purposes of the Securities Act. By that logic, the Tribunal should focus on the objectives of the Competition Act. 51 Those are addressed in Part III, Section A, Sub-Section (iv) below.

(2) The Common Law Test 52. There is a test for common law public interest standing. Under that test, the court must weigh three factors: (a) whether there is a serious justiciable issue; (b) whether the applicant has a genuine interest in the matter; and (c) whether the case is a reasonable and effective means of bringing the case to court. 52

50 R v DLW, 2016 SCC 22 at para 18. 51 Linda Visser, Charles Wright & Georgia Hamilton, “The New Abuse of Dominance Regime in Canada–An Opportunity for Greater Enforcement and Access to Justice” (2025) 37:2 CCLR 130 at 148-150, citing Committee for the Equal Treatment of Asbestos Minority Shareholders v Ontario (Securities Commission), 2001 SCC 37. 52 British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 at para 28.

53. On factor (a), the court assesses the claim in a “preliminary manner” to determine whether there is at least one question that is “far from frivolous”.

54. On factor (b), the court can consider the applicant’s reputation and whether they have a “continuing interest in and link to the claim”. 54 The applicant does not need “to show that its interests are precisely as narrow as the litigation it seeks to bring”.

55. All three factors must be applied in line with the purposes for which common law public interest standing rules exist. Those purposes are: (i) to screen out “mere busybodies” and conserve judicial resources, though these concerns “may be overstated” because few people “bring cases to court in which they have no interest and which serve no proper purpose”; (ii) to ensure “concrete adverseness”, which “sharpens the debate of the issues” and “helps ensure that the arguments are presented thoroughly and diligently”; and (iii) to ensure the proceedings raise a justiciable question, such that the courts maintain their proper constitutional role. 56

(3) Which Common Law Rules Should Apply to the Statutory Test? 56. Parliament created public interest standing for claims to the Tribunal under sections 75, 77, and 79 of the Competition Act. In doing so, Parliament has conclusively established that such claims are justiciable, that a claim to the Tribunal is a reasonable and effective means of bringing the case, and that the Tribunal is acting within its proper constitutional role if it decides the issue. Thus, the Tribunal should not consider justiciability on factor (a) of the common law test, and should not consider factor (c) of the common law test.

53 British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 at para 49. 54 British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 at para 51. 55 British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 at para 102. 56 Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at paras 26-30, 39, 39-41, 43.

57.

58.

In sum, the Tribunal should only consider the following two parts of the common law test:

(a)

(b)

Whether there is a serious issue; and

Whether the applicant has a genuine interest in the matter.

59. The only possible nuance is that the English version requires the Tribunal to be “satisfied” that the claim is in the public interest, while the French version requires that the Tribunal be « convaincu ». However, the Supreme Court of Canada has considered both of these words and concluded that neither prescribes any particular standard of proof. 57 Thus, this is a distinction without a difference, and the Tribunal should not read anything into those words.

(ii) Entire Context (a) Private Interest Standing Test 60. The words “public interest” must be interpreted in their context. They are found in section 103.1(7), alongside a private interest standing test which has been judicially interpreted.

61. The test for private interest standing under section 103.1(7) contains two criteria: (a) a private interest, i.e. the applicant is directly and substantially affected in whole or part of its business; and (b) the alleged practice could be subject to an order. 58

57 58

R v IM, 2025 SCC 23 at para 118. Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 at para 16.

62. Criterion (a) cannot apply to public interest standing. By permitting a claim to be brought in the “public interest”, Parliament has eliminated the need for a private interest.

63. Criterion (b) should apply to public interest standing. This would be consistent with the first factor of the common law public interest standing test, except that it would be a criterion (i.e. a necessary element) instead of merely a factor to be considered.

64. On criterion (b), the Federal Court of Appeal has held that the threshold is “not a difficult one to meet”, lower than a balance of probabilities. The applicant “need only provide sufficient credible evidence of what is alleged to give rise to a bona fide belief by the Tribunal”. 59

65. The applicant must meet that low threshold for “all elements of the practice” set out in the relevant provision. However, the Tribunal can “address each element summarily in keeping with the expeditious nature of the leave proceeding”. 60

(b) Limited Evidence on Leave Motions 66. Having a low standard is consistent with the nature of the leave process, which is designed to be as expeditious as possible. For example, the respondent must file representations within 15 days after receiving the Tribunal’s notice, and an oral hearing is not required. 61

67. The limitations of the leave process are most clearly seen in the limited evidence available. The leave process “is a screening process meant to be decided expeditiously and not on the basis of a full evidentiary record”. 62 The respondent has no right to file responding evidence, 63 and

59 60 61 62 63

Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 at para 17. Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 at paras 18-19. Competition Tribunal Rules, SOR/2008-141, rr 119(1), 119(3), 121. Audatex Canada, ULC v CarProof Corporation, 2015 Comp Trib 13 at para 16. Competition Tribunal Rules, SOR/2008-141, s 119(3).

applicant has no right to file reply evidence, 64 though each can seek leave to do so. There is no right to cross-examine on affidavits in leave materials. 65 The Tribunal cannot weigh contested evidence. 66 Since leave is decided at an early stage, there “will inevitably be incomplete information on some topics”. Thus, “hard and fast evidence” is not always required. The Tribunal can draw reasonable inferences from circumstantial evidence. 67 And where the respondent does not seek leave to present evidence on a point that lies exclusively within its knowledge, the Tribunal can draw an adverse inference against the respondent on that point. 68

68. These rules are required by section 9(2) of the Competition Tribunal Act: “All proceedings before the Tribunal shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit”. 69 That also applies to leave to bring a public interest case.

(iii) Intention of Parliament (a) As Indicated by Hansard 69. Hansard is often used to identify legislative intent. Although Hansard may be rhetorical and imprecise, “providing information and explanations of proposed legislation is an important ministerial responsibility, and courts rightly look to it” – especially to speeches by the Minister(s) who introduced the bill or for whose departments they are brought. 70

70. Public interest standing was introduced as part of Bill C-59, an omnibus bill running 546 pages and amending dozens of statutes. Many ministries and departments were involved in drafting

64 Audatex Canada, ULC v CarProof Corporation, 2015 Comp Trib 28 at paras 35-36. 65 Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 24 at para 24. 66 Barcode Systems Inc v Symbol Technologies Canada ULC, 2004 Comp Trib 1 at para 21; CarGurus Inc v Trader Corporation, 2016 Comp Trib 12 at para 27. 67 The Used Car Dealers Association of Ontario v Insurance Bureau of Canada, 2011 Comp Trib 10 at paras 32-34. 68 CarGurus Inc v Trader Corporation, 2016 Comp Trib 12 at paras 26-27. 69 Competition Tribunal Act, RSC 1985, c 19, s 9(2). 70 R v Safarzadeh-Markhali, 2016 SCC 14 at para 36.

the bill, and it affected many ministries and departments, so statements by many cabinet members are relevant when interpreting the bill.

71. In the House of Commons (report stage), the Parliamentary Secretary to the Minister of Veterans Affairs and Associate Minister of National Defence stated:

The expansion of private enforcement and the ability of the Competition Tribunal to issue monetary payment orders in cases initiated by private parties are also significant changes to our existing enforcement approach. By relaxing the requirements to bring a case and providing an incentive to bring matters directly to the Competition Tribunal, there would be greater accountability throughout the marketplace and more action on cases that the Competition Bureau may not be able to take. 71

72. This suggests that Parliament intended to relax the standard for getting leave. The new rules should be interpreted in a manner that provides sufficient incentive for private parties – including public interest litigants – to bring matters to the Tribunal, especially if those matters are resource-intensive such that the Bureau would find it difficult to do so.

73.

In the Senate (pre-study stage), one Senator asked the following question:

Bill C-59 includes amendments to the Competition Act that encourage private parties to bring forward claims to challenge anti‑competitive behaviour. American experiences highlight that private antitrust litigation can entail substantial financial outlays. In your view, are the measures opening competition laws to private claims sufficient to avoid this litigation being dominated by the largest corporations that are most capable of affording the costs of litigation, particularly if they are being challenged by smaller or less-established businesses; and are there new potential remedies available for people, particularly those without legal and financial resources, who believe they are being affected at an individual level by anti-competitive behaviour, for example, as a result of price gouging? 72

71 House of Commons Debates, 44th Parl, 1st Sess, No 312 (9 May 2024) at 23382 (Randeep Sarai) (emphasis added). 72 Senate, Standing Committee on National Finance, 44th Parl, 1st Sess, Meeting 94 (3 March 2024) at 94:44 (Senator Pate) (emphasis added).

74. This suggests that public interest standing is supposed to be available to consumers and to those other than large corporations who can afford litigation.

75. Also in the Senate (pre-study stage), the Director General of the Marketplace Framework Policy Branch of Innovation, Science, and Economic Development Canada stated:

The other piece proposed in this piece of legislation, which could be helpful in addressing some of the issues you’re concerned with, is about allowing better private access to the tribunal and allowing organizations, including non-governmental organizations, to engage on these issues when they notice a problem in the marketplace — including environmental organizations. 73

76. The reference to environmental organizations suggests that public interest standing is not meant to be restricted to market participants. It can be obtained by public interest organizations that take it upon themselves to monitor an aspect of the market.

(b) As Indicated by the Bureau’s Submissions 77. Prior to Bill C-59 being introduced, the federal government launched two consultations asking whether to expand private access. The Bureau responded to both, in each case supporting an expansion. The Bureau’s comments were a significant motivating factor for the amendments, so these comments can shed some light on Parliament’s intention.

78.

The first submission stated:

Perhaps the greatest benefit of private access is that, by having a larger number of cases heard by the Tribunal, a broader body of case law would be developed. Such case law serves to clarify aspects of the law, and removes uncertainty for the Commissioner, private litigants, and businesses who engage in potentially reviewable conduct. …

73 Senate, Standing Committee on National Finance, 44th Parl, 1st Sess, Meeting 95 (9 April 2024) at 95:16 (Samir Chhabra) (emphasis added).

In a resource constrained world, the Bureau must prioritize certain cases over others. Private access provides an avenue for all those with a legitimate complaint to seek relief in front of the Tribunal. Such an extension of private access will serve to more rapidly expand valuable case law, and bring these sections into sharper relief for both the Commissioner and Canada’s business community. 74

79. This suggests that one of the goals of public interest standing was to expand jurisprudence and allow all legitimate cases to be brought despite the Bureau’s budgetary constraints.

80.

The second submission stated:

[Under the current test] only businesses can seek leave to bring a case to the Tribunal, not other groups that can be directly harmed by anti-competitive conduct like consumers or workers. 75

81.

This suggests that public interest standing should be available to consumers and workers.

(iv) Object of the Competition Act 82. The public interest standing provision must be interpreted in accordance with the purposes of the Competition Act, namely:

to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices. 76

74 Canada, Competition Bureau, “Examining the Canadian Competition Act in the Digital Era: Submission by the Competition Bureau” (February 8, 2022), s 3.4. 75 Canada, Competition Bureau, “The Future of Competition Policy in Canada: Submission by the Competition Bureau” (March 15, 2023), s 5.5.2. 76 Competition Act, RSC 1985, c C-34, s 1.1 (emphasis added).

83. The highlighted words suggest that public interest standing should be available to advance the interests of small and medium-sized enterprises and consumers. They further suggest that public interest standing should be more readily granted where the case affects the adaptability of the Canadian economy, competitive prices, and a competitive range of product choices.

(v) Putting It All Together: A Proposed Test 84. Drawing together all of the threads described above, the applicant submits that there should be a three-step test for public interest standing under section 103.1(7).

85. Step 1: The applicant must show that the alleged conduct could be subject to an order. This would follow the existing jurisprudence on private interest standing under section 103.1(7).

86. For consistency with the private interest standing test under section 103.1(7), Step 1 should be a criterion – necessary to granting leave.

87. Step 2: The applicant should show that it has a genuine interest in the alleged conduct. This would allow claims by businesses, consumers, workers, and other organizations that do not meet the criterion of being “directly and substantially affected in the whole or part” of their business, but which nevertheless have a demonstrated interest in the factual or legal issues. In line with the common law public interest standing test, this criterion should be used to deny leave to “mere busybodies”.

88. Step 3: The applicant should show that the alleged conduct has had or will have, or that litigating the case could have broad effects, beyond the applicant and the respondent. It can do so by showing any of the following:

(a)

(b)

(c)

Many People Affected: The alleged conduct adversely affects not only direct competitors, but also businesses at different levels on the supply chain, consumers, workers, or innovation and the adaptability of the industry. This factor is based on the Hansard quotes, the Bureau’s submissions, and the purposes of the Competition Act referenced above. 77

Clarifying the Law: The case raises novel issues of law, the resolution of which would make the law clearer for businesses to follow or for the Bureau to enforce. This factor is based on the Bureau’s submissions referenced above. 78

Expensive to Prosecute: The case is especially expensive to prosecute, such that the Bureau would find it difficult to prosecute and moving the financial burden to a private litigant would significantly benefit the public purse. This factor is based on the Hansard quotes and the Bureau’s submissions referenced above. 79

89. For consistency with the common law public interest standing test, Steps 2 and 3 should be factors, such that a strong case on one factor can outweigh a weak case on the other.

90.

77 78 79

Does the CCC Satisfy That Test? (i) Step 1: The Conduct Could Give Rise to an Order (a) General Principles As explained above, the following general principles apply to Step 1:

See paragraphs 68 -71, and 75 -78 above. See paragraphs 72 -74 above. See paragraphs 66 -67 and 72 -74 above.

91.

92.

(a)

(b)

(c)

(d)

The threshold is “not a difficult one to meet”, lower than a balance of probabilities. The applicant “need only provide sufficient credible evidence of what is alleged to give rise to a bona fide belief by the Tribunal”. 80

Since leave is decided at an early stage, there “will inevitably be incomplete information on some topics”. Thus, “hard and fast evidence” is not always required. The Tribunal can draw reasonable inferences from circumstantial evidence. 81

The Tribunal should not weigh contested evidence.

The Tribunal can “address each element summarily in keeping with the expeditious nature of the leave proceeding”. 83

The applicant has presented sufficient evidence to clear this low threshold.

(b) Claims Under Section 77 In order to obtain an order under section 77, the following criteria must be satisfied:

(a)

(b)

The respondent is a major supplier or widespread in a market;

One of the following:

(i)

The respondent engaged in tied selling or exclusive dealing, and the conduct is likely to impede entry or expansion of a firm in a market; or

80 Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 at para 17. 81 The Used Car Dealers Association of Ontario v Insurance Bureau of Canada, 2011 Comp Trib 10 at paras 32-34. 82 Barcode Systems Inc v Symbol Technologies Canada ULC, 2004 Comp Trib 1 at para 21; CarGurus Inc v Trader Corporation, 2016 Comp Trib 12 at para 27. 83 Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 at paras 18-19.

93.

(c)

(ii)

The respondent engaged in market restriction;

The conduct has lessened or is likely to lessen competition substantially.

Each of those is addressed in turn below.

(1) Major Supplier or Widespread 94. As explained above in Part I(B), the Respondents are major suppliers or widespread in all five relevant markets: the Venue Market, the Venue Promotion Market, the Artist Market, the Artist Promotion Market, and the Primary Ticketing Market.

(2) Tied Selling, Exclusive Dealing, and Market Restriction 95. Threatening Venues: This application alleges, 85 and as described in Part I(C)(i) above there is some evidence, that the Respondents have threatened Venues. Specifically, as a condition for supplying services to Venues in the Artist Market, the Respondents require those Venues (i) to retain Live Nation as their exclusive Venue Promoter over a long period of time; (ii) to retain Ticketmaster as their exclusive Ticketer over a long period of time; and (iii) to not deal with Artists that the Respondents do not control in the Venue Market (i.e. those using competitor Artist Promoters or Ticketers). This constitutes tied selling, exclusive dealing, and market restriction.

(a)

Tied Selling: Conduct (i) constitutes tying the Venue Promotion Market to the Artist Market under part (a)(i) of the definition of “tied selling”. 86 Conduct (ii) constitutes tying the Primary Ticketing Market to the Artist Market under part (a)(i)

84 Competition Act, RSC 1985, c C-34, s 77(1) sub nom “tied selling”, 77(1) sub nom “exclusive dealing”, 77(1) sub nom “market restriction”, 77(2)-(3). 85 Notice of Application for Leave at paras 55-63. 86 Competition Act, RSC 1985, c C-34, s 77(1) sub nom “tied selling” (a)(i).

(b)

(c)

of the definition of “tied selling”. 87 Conduct (iii) constitutes tying the Venue Market to the Artist Market under part (a)(ii) of the definition of “tied selling”.

Exclusive Dealing: Conduct (i) constitutes forcing Venues to exclusively deal with the Respondents in the Venue Promotion Market under part (a)(i) of the definition of “exclusive dealing”. 89 Conduct (ii) constitutes forcing Venues to exclusively deal with the Respondents in the Primary Ticketing Market under part (a)(i) of the definition of “exclusive dealing”. 90

Market Restriction: Conduct (iii) constitutes forcing Venues to deal only with Artists controlled by the Respondents in the Venue Market within the definition of “market restriction”. 91

96. Threatening Artists: This application alleges, 92 and as described in Part I(C)(ii) above there is some evidence, that the Respondents have threatened Artists. Specifically, as a condition for supplying services to Artists in the Venue Market, the Respondents require those Artists (i) to retain Live Nation as their exclusive Artist Promoter over a long period of time; (ii) to retain Ticketmaster as their exclusive Ticketer over a long period of time, including refraining from making direct sales to their Fans; and (iii) to not deal with Venues that the Respondents do not control in the Artist Market (i.e. those using competitor Venue Promoters or Ticketers). This constitutes tied selling, exclusive dealing, and market restriction.

87 88 89 90 91 92

Competition Act, RSC 1985, c C-34, s 77(1) sub nom “tied selling” (a)(i). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “tied selling” (a)(ii). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “exclusive dealing” (a)(i). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “exclusive dealing” (a)(i). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “market restriction”. Notice of Application for Leave at paras 68-74.

(a)

(b)

(c)

Tied Selling: Conduct (i) constitutes tying the Artist Promotion Market to the Venue Market under part (a)(i) of the definition of “tied selling”. 93 Conduct (ii) constitutes tying the Primary Ticketing Market to the Venue Market under part (a)(i) of the definition of “tied selling”. 94 Conduct (iii) constitutes tying the Artist Market to the Venue Market under part (a)(ii) of the definition of “tied selling”. 95

Exclusive Dealing: Conduct (i) constitutes forcing Artists to exclusively deal with the Respondents in the Artist Promotion Market under part (a)(i) of the definition of “exclusive dealing”. 96 Conduct (ii) constitutes forcing Artists to exclusively deal with the Respondents in the Primary Ticketing Market under part (a)(i) of the definition of “exclusive dealing”. 97

Market Restriction: Conduct (iii) constitutes forcing Artists to deal only with Venues controlled by the Respondents in the Artist Market within the definition of “market restriction”. 98

97. Relevant Jurisprudence: When assessing whether a Respondent engaged in tied selling, the fundamental question the court must ask to assess whether there has been tied selling is whether consumers “actually do have an effective choice”. 99 Here, Venues do not have an effective choice to forego renting space to any of the Artists the Respondents control, i.e. the vast majority of the most popular Artists in Canada and around the world. Similarly, Artists do not have an effective

93 94 95 96 97 98 99

Competition Act, RSC 1985, c C-34, s 77(1) sub nom “tied selling” (a)(i). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “tied selling” (a)(i). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “tied selling” (a)(ii). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “exclusive dealing” (a)(i). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “exclusive dealing” (a)(i). Competition Act, RSC 1985, c C-34, s 77(1) sub nom “market restriction”. Director of Investigation and Research v Tele-Direct Inc, 1997 CanLII 11 (CT) at VIII(E) (emphasis added).

choice to forego performing in any of the Venues the Respondents control, i.e. the vast majority of the largest capacity Venues in Canada and around the world.

98. The Respondents may argue that Venues could book less popular Artists, and Artists could perform at smaller Venues. Even if that were true, which is denied, this argument would be wrong in law. In Tele-Direct, the Tribunal found that market participants were not as interested in servicing smaller accounts, which was sufficient to dispel a similar argument. 100

99. The Respondents may argue that the tying products here (services in the Artist Market and the Venue Market) are not supplied by the Respondents. This argument does not hold. In Tele-Direct, the Tribunal held that the applicant does not have to show that a respondent supplies both products, or that a respondent obtains any compensation from sales of both products. 101 In this case, whether such a response succeeds depends on the evidence of how willing Venues and Artists are to work on smaller shows, which is a factual issue best left for a merits hearing.

100. The Respondents may argue that competitor Ticketers also enter into exclusivity agreements with Venues and/or Artists. This argument does not hold either. In Tele-Direct, the respondent’s competitors engaged in the same conduct. The Tribunal concluded that the competitors’ conduct was “a necessity for their survival” (presumably in part because of the respondent’s conduct), whereas the respondent had a choice, and so still breached section 77. 102

(3) Impeding Entry & Substantial Lessening of Competition 101. As explained above in Parts I(D)(i)-(ii), the Respondents’ conduct forced Venues and Artists to not consider competitor Ticketers, Venue Promoters, and Artist Promoters. This

100 101 102

Director of Investigation and Research v Tele-Direct Inc, 1997 CanLII 11 (CT) at VIII(D)(4)(c). Director of Investigation and Research v Tele-Direct Inc, 1997 CanLII 11 (CT) at VIII(D)(2)(c). Director of Investigation and Research v Tele-Direct Inc, 1997 CanLII 11 (CT) at VIII(D)(4)(b).

prevented entry or expansion, and caused shrinking and exit, by competitor Ticketers, Venue Promoters, and Artist Promoters, and so a substantial lessening of competition in the Venue Promotion Market, the Artist Promotion Market, and the Primary Ticketing Market.

102.

103.

(a)

(b)

The respondent must substantially control a class or species of business throughout Canada or any area of Canada; and

One of the following:

(i)

(ii)

The respondent engaged in a practice of anti-competitive acts.

The respondent engaged in conduct that:

(1)

(2)

Has or is likely to lessen competition substantially in a market in which the respondent has a plausible competitive interest; and

The effect is not the result of superior competitive performance.

Each of those is addressed in turn below.

103

(1) Substantial Control of a Species of Business 104. As explained above in Part I(B), the Respondents substantially control the five relevant species of business: the Venue Market, the Venue Promotion Market, the Artist Market, the Artist Promotion Market, and the Primary Ticketing Market.

103

Competition Act, RSC 1985, c C-34, s 79(1).

105. Relevant Law: The Respondents may argue that they are not Artists and they only own a fraction of all Venues, so they cannot control the Artist Market or the Venue Market. This argument would be contrary to the Federal Court of Appeal’s holding in TREB that a person can substantially control a market even if it does not directly compete in that market. This can occur, for example, by “controlling a significant input” or “making rules that effectively control the business conduct” of competitors. 104 In this case, the Respondents control Artists and Venues, which are significant inputs in all five relevant markets.

106.

(2) Anti-Competitive Acts An anti-competitive act means:

any act intended to have a predatory, exclusionary or disciplinary negative effect on a competitor, or to have an adverse effect on competition, and includes any of the following acts: …

(e) pre-emption of scarce facilities or resources required by a competitor for the operation of a business, with the object of withholding the facilities or resources from a market; …

(h) requiring or inducing a supplier to sell only or primarily to certain customers, or to refrain from selling to a competitor, with the object of preventing a competitor’s entry into, or expansion in, a market; 105

107. As explained above in Part I(C)(i), the Respondents threaten to withhold Artists unless Venues agree to exclusive agreements with the Respondents, and actually withhold their services even if the Artists would prefer to perform in those Venues. As explained above in Part I(C)(ii), the Respondents threaten to withhold Venues unless Artists agree to exclusive agreements with the Respondents, and actually withhold their services even if the Venues would otherwise be dark

104 105

Commissioner of Competition v Toronto Real Estate Board, 2014 FCA 29 at para 13. Competition Act, RSC 1985, c C-34, ss 78(1)(e), 78(1)(h) (emphasis added).

on the relevant days. As explained above in Part I(D)(i)-(ii), this conduct causes potential customers to refuse to even consider working with independent Venue Promoters, Artist Promoters, and Ticketers in the primary market.

108. This conduct falls under sections 78(1)(e) (pre-emption of scarce facilities) and 78(1)(h) (requiring a supplier to refrain from selling) in the following ways:

(a)

(b)

(c)

Venues as Competitors: Independent Venues compete with Venues owned by the Respondents. The Respondents withheld from independent Venues shows by Artists the Respondents control. This constitutes pre-emption of scarce facilities (Artists) required by competitors (independent Venues), within the meaning of section 78(1)(e). This also constitutes requiring suppliers (Artists) to refrain from selling (in the Artist Market) with the object of preventing expansion of competitors (independent Venues) in a market (the Venue Market), within the meaning of section 78(1)(h).

Venue Promoters as Competitors: Independent Venue Promoters compete with Live Nation. The Respondents withheld from Venues who retain independent Venue Promoters shows by Artists the Respondents control. This constitutes requiring supplier (Artists) to refrain from selling (in the Artist Market) with the object of preventing expansion of competitors (independent Venue Promoters) in a market (the Venue Promotion Market), within the meaning of section 78(1)(h).

Artist Promoters as Competitors: Independent Artist Promoters compete with Live Nation. The Respondents withheld from Artists who retain independent Artist Promoters access to Venues the Respondents control. This constitutes requiring

(d)

supplier (Venues) to refrain from selling (in the Venue Market) with the object of preventing expansion of competitors (independent Artist Promoters) in a market (the Artist Promotion Market), within the meaning of section 78(1)(h).

Ticketers as Competitors: Independent Ticketers compete with Ticketmaster. The Respondents withheld from Venues working with independent Ticketers shows by Artists the Respondents control. This constitutes requiring supplier (Artists) to refrain from selling (in the Artist Market) with the object of preventing expansion of competitors (independent Ticketers) in a market (the Primary Ticketing Market), within the meaning of section 78(1)(h). The Respondents also withheld from Artists working with independent Ticketers access to Venues the Respondents control. This constitutes requiring supplier (Venues) to refrain from selling (in the Venue Market) with the object of preventing expansion of competitors (independent Ticketers) in a market (the Primary Ticketing Market), within the meaning of section 78(1)(h).

109. Relevant Jurisprudence: The applicant does not have to prove subjective intent to harm competitors or competition. It is sufficient to show that this was a reasonably foreseeable consequence of the act. 106 In this case, it is reasonably foreseeable that denying competitor Promoters and Ticketers the ability to work on the vast majority of popular shows would undermine their ability to operate profitably. Furthermore, as described above at paragraphs 18 -20 and 37, the Respondents use predatorily low margins as a Promoter, cross-subsidized by their high

106

Canada (Commissioner of Competition) v Canada Pipe Co, 2006 FCA 233 at paras 71-72.

margins as a Ticketer. Given that strategy, it was reasonably foreseeable that squeezing margins would prevent entry or expansion by competitor Promoters.

(3) Substantial Lessening of Competition 110. As explained above in Parts I(D)(i)-(ii), the Respondents forced Venues and Artists to not use competitor Ticketers, Venue Promoters, and Artist Promoters. This prevented entry or expansion, and caused shrinking and exit, by competitor Ticketers, Venue Promoters, and Artist Promoters. This created a substantial lessening of competition in the Venue Promotion Market, the Artist Promotion Market, and the Primary Ticketing Market.

111. As explained above in Part I(D)(ii), the Respondents also engaged in predatory pricing as a Promoter and recouped that money through its margins as a Ticketer. This made it impossible for competitor Venue Promoters and Artist Promoters to profitably compete, preventing their entry or expansion, and caused shrinking and exit. This created a substantial lessening of competition in the Venue Promotion Market and the Artist Promotion Market. Such predatory pricing is intended to negatively affect competitor Venue Promoters and Artist Promoters and thus falls within the definition of an anti-competitive act under ss 78(1) of the Competition Act.

(4) No Superior Competitive Performance 112. As described above at paragraph 35 and Parts I(D)(iii)-(v), there is some evidence that the Respondents’ services are worse than those of competitors from the perspective of Venues, Artists, and Fans. Thus, requiring their use over those of competitors cannot be explained on the basis of superior competitive performance.

(ii) Step 2: The Applicant Has a Genuine Interest 113. The Consumers Council of Canada (“CCC”) is an independent, non-profit organization established in 1994. Its mandate includes (a) fostering an efficient, equitable, and safe marketplace in which consumers are able to exercise their rights; (b) representing the interests of all Canadian consumers; and (c) identifying and addressing systemic marketplace practices harming consumers, including those that limit choice, increase prices, or otherwise undermine fair competition. 107

114. The CCC has a long-standing, demonstrated interest in competition law and policy. For example, (a) it was granted leave to intervene in Supreme Court of Canada cases at the intersection of consumer protection and competition law; 108 and (b) it made submissions to the Minister of Innovation, Science and Industry during the consultation on recent amendments to the Competition Act, 109 and regularly makes submissions to a variety of relevant ministries. 110

115. The CCC has a particular interest in the live entertainment industry, and in the subject matter of this case, because (a) the industry affects a large and diverse group of Canadian consumers, both as individuals and as families; (b) it is characterized by information asymmetries, limited choice, and limited ability to assess pricing and availability; (c) consumers bear the ultimate economic and social consequences of any anti-competitive conduct; and (d) the issues raised in this application are squarely relevant to fairness, transparency, and consumer choice in these markets. 111

107 108 109 110 111

Affidavit of Don Mercer sworn December 15, 2025 (“Mercer Affidavit”) at paras 6-7, 13-14, pp 2, 4. Mercer Affidavit at paras 19-20, pp 5-6. Mercer Affidavit at para 16, p 5. Mercer Affidavit at para 21, p 6. Mercer Affidavit at paras 12-14, p 4.

116. The CCC has conducted and published its own research on subjects relevant to this case, such as how consumer choices are affected by concentration or vertical integration, and on markets with similar characteristics such as electronic commerce, financial services, and telecoms. 112

117. The CCC is willing to prosecute this proceeding. The CCC’s Board of Directors has authorized the case and recognizes its significance to Canadian consumers and to the CCC’s mandate. It understands that Tribunal proceedings may involve extended timelines and complex evidentiary and procedural requirements, and is committed to meeting those demands. 113

118. The CCC is also able to prosecute this proceeding. (a) The CCC has a track record of engaging in sustained advocacy and with legal proceedings. 114 (b) The CCC can draw on a wealth of unpaid volunteers willing to contribute their professional expertise to represent and advance the interests of Canadian consumers. 115 (c) The CCC is a member of two relevant associations – Canadian Consumer Initiative 116 and Consumers International 117 – which collectively contain hundreds of like-minded organizations across Canada and around the world. The CCC can draw on the expertise and support of this broader group of organizations if necessary. (d) The CCC has retained counsel experienced in competition matters. 118 (e) Counsel for the CCC has received expressions of interest from third-party funders to provide sufficient funding to cover any necessary disbursements. 119 (f) Counsel for the CCC have agreed to act on a contingency basis.

112 113 114 115 116 117 118 119

Mercer Affidavit at paras 8, 15, pp 3-4. Mercer Affidavit at paras 25, 28, pp 7-8. Mercer Affidavit at paras 16, 19-21, 26, pp 5-7. Mercer Affidavit at para 22, p 6. Mercer Affidavit at para 7, p 2. Mercer Affidavit at para 22, p 6. Mercer Affidavit at para 28, p 7. Affidavit of Misha Nili sworn December 18, 2025 (“Nili Affidavit”) at paras 8-9, p 3.

(iii) Step 3: The Case Has Broad Effects Beyond the Parties (a) The Conduct Affects Many Suppliers and Consumers 119. As described above in Part I(D), the Respondents’ conduct affects multiple types of market participants, including Promoters, Ticketers, Venues, Artists, and Fans.

(b) Novel Issues Will Be Determined 120. There is very little jurisprudence on the scope of sections 77 and 79, and in particular no jurisprudence on the scope of sections 77(1)(e) and 77(1)(h). This case would clarify the analysis under all of those sections.

121. Since this is one of the first cases under the new private access regime, it would also clarify many of the unanswered questions about monetary remedies, including the following. (a) In what circumstances should the court make a monetary order under sections 77(3.1) or 79(4.1)? (b) On what basis are monetary remedies calculated (i.e. are they harm-based, disgorgement-based, or punitive)? (c) What period should a monetary remedy cover? (d) To whom should monetary remedies be distributed? (e) What terms regarding implementation are appropriate under sections 77(3.2) and 79(4.2)?

(c) The Case is Expensive to Prosecute 122. Counsel for the CCC has already incurred significant expenses to prepare and bring this application for leave. They have conducted extensive research.

120

Nili Affidavit at paras 3-7, pp 2-3.

120

123. Counsel for the CCC has discussed the issues in this case with a wide variety of market participants. Unfortunately, virtually all market participants were unwilling to provide evidence for fear of reprisals from the Respondents. 121

124. No Artist, Venue, or Consumer is likely to be willing or able to fund such an action on their own. The only way that this case would be brought is by the CCC, backed by counsel and a funder or insurer willing to act on contingency.

PART IV - ORDER SOUGHT 125. The applicant respectfully requests the relief listed at paragraph 2 of the Notice of Application for Leave.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 22 nd

day of December, 2025.

David Sterns SOTOS LLP 55 University Ave., Suite 600 Toronto ON M5J 2H7

David Sterns (LSO # 36274J) dsterns@sotos.ca Adil Abdulla (LSO # 82095E) aabdulla@sotos.ca Maria Arabella Robles (LSO # 87381F) mrobles@sotos.ca

Tel: Fax:

(416) 977-0007 (416) 977-0717

Lawyers for the applicant

121

Nili Affidavit at para 5, p 2.

TO:

The Registrar Competition Tribunal 90 Sparks Street, Suite 600 Ottawa, ON K1P 5B4

Tel: (613) 957-7851 Fax: (613) 952-1123

AND TO:

Live Nation Entertainment, Inc. 9348 Civic Center Drive Beverly Hills, CA 90210 United States of America

Ticketmaster LLC 9348 Civic Center Drive Beverly Hills, CA 90210 United States of America

Live Nation Canada, Inc. 40 Hanna Avenue, 3 rd Floor Toronto, ON M6K 0C3

Live Nation Ontario Concerts GP, Inc. 909 Lake Shore Boulevard West, Suite 300 Toronto, ON M6K 3L3

Réseau Admission ULC 1959 Upper Water Street, Suite 900 Halifax, NS B3J 3N2

Ticketmaster Canada LP 123 Front Street West, Suite 1100 Toronto, ON M5J 2M2

Ticketmaster Canada ULC 1741 Lower Water Street, Suite 600 Halifax, NS B3J 0J2

1. 2. 3. 4. 5.

6. 7.

PART V - LIST OF AUTHORITIES Audatex Canada, ULC v CarProof Corporation, 2015 Comp Trib 13 Audatex Canada, ULC v CarProof Corporation, 2015 Comp Trib 28 B-Filer Inc v The Bank of Nova Scotia, 2006 Comp Trib 42 British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45

Canada, Competition Bureau, “Abuse of Dominance Enforcement Guidelines” (June 2022) Canada, Competition Bureau, “Examining the Canadian Competition Act in the Digital Era: Submission by the Competition Bureau” (February 8, 2022)

Canada, Competition Bureau, “The Future of Competition Policy in Canada: Submission by the Competition Bureau” (March 15, 2023)

9. Canada (Commissioner of Competition) v Canada Pipe Co, 2006 FCA 233 10. Canada (Director of Investigation & Research) v Air Canada (1989), 27 CPR (3d) 476 (CT) 11. Canada (Director of Investigation and Research) v Chrysler Canada Ltd, (1989), 27 CPR (3d) 1 (CT), aff’d (1991) 38 CPR (3d) 25 (FCA)

12. Canada (Director of Investigation and Research) v NutraSweet (1990), 32 CPR (3d) 1 (CT) 13. CarGurus Inc v Trader Corporation, 2016 Comp Trib 12 14. CarGurus, Inc v Trader Corporation, 2016 Comp Trib 15 15. Commissioner of Competition v Toronto Real Estate Board, 2014 FCA 29 16. Committee for the Equal Treatment of Asbestos Minority Shareholders v Ontario (Securities Commission), 2001 SCC 37

17. Director of Investigation and Research v Tele-Direct Inc, 1997 CanLII 11 (CT) 18. European Commission, Brussels, 13 December 2011, Case COMP/C-3-39692-IBM Maintenance Services

19. House of Commons Debates, 44th Parl, 1st Sess, No 312 (9 May 2024) 20. Linda Visser, Charles Wright & Georgia Hamilton, “The New Abuse of Dominance Regime in Canada–An Opportunity for Greater Enforcement and Access to Justice” (2025) 37:2 CCLR 130

21. Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 22. R v DLW, 2016 SCC 22 23. R v IM, 2025 SCC 23 24. R v Safarzadeh-Markhali, 2016 SCC 14

25. Senate, Standing Committee on National Finance, 44th Parl, 1st Sess, Meeting 94 (3 March 2024)

26. Senate, Standing Committee on National Finance, 44th Parl, 1st Sess, Meeting 95 (9 April 2024)

27. Senate, Standing Committee on National Finance, 44th Parl, 1st Sess, Meeting 111 (11 June 2024)

28. Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 29. Toronto Real Estate Board v Canada (Commissioner of Competition), 2017 FCA 236

APPENDIX “A” STATUTES AND REGULATIONS RELIED UPON

Competition Act, RSC 1985, c C-34 Purpose of Act 1.1 The purpose of this Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.

Definitions 77 (1) For the purposes of this section, exclusive dealing means (a) any practice whereby a supplier of a product, as a condition of supplying the product to a customer, requires that customer to (i) deal only or primarily in products supplied by or designated by the supplier or the supplier’s nominee, or (ii) refrain from dealing in a specified class or kind of product except as supplied by the supplier or the nominee, and (b) any practice whereby a supplier of a product induces a customer to meet a condition set out in subparagraph (a)(i) or (ii) by offering to supply the product to the customer on more favourable terms or conditions if the customer agrees to meet the condition set out in either of those subparagraphs; market restriction means any practice whereby a supplier of a product, as a condition of supplying the product to a customer, requires that customer to supply any product only in a defined market, or exacts a penalty of any kind from the customer if he supplies any product outside a defined market; tied selling means (a) any practice whereby a supplier of a product, as a condition of supplying the product (the “tying” product) to a customer, requires that customer to (i) acquire any other product from the supplier or the supplier’s nominee, or (ii) refrain from using or distributing, in conjunction with the tying product, another product that is not of a brand or manufacture designated by the supplier or the nominee, and (b) any practice whereby a supplier of a product induces a customer to meet a condition set out in subparagraph (a)(i) or (ii) by offering to supply the tying product to the customer on more favourable terms or conditions if the customer agrees to meet the condition set out in either of those subparagraphs.

Exclusive dealing and tied selling 77 (2) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that exclusive dealing or tied selling, because it is engaged in by a major supplier of a product in a market or because it is widespread in a market, is likely to (a) impede entry into or expansion of a firm in a market, (b) impede introduction of a product into or expansion of sales of a product in a market, or (c) have any other exclusionary effect in a market, with the result that competition is or is likely to be lessened substantially, the Tribunal may make an order directed to all or any of the suppliers against whom an order is sought prohibiting them from continuing to engage in that exclusive dealing or tied selling and containing any other requirement that, in its opinion, is necessary to overcome the effects thereof in the market or to restore or stimulate competition in the market.

Additional order — person granted leave 77 (3.1) If the Tribunal makes an order under subsection (2) or (3) as the result of an application by a person granted leave under section 103.1, it may also order any supplier in respect of whom the order applies to pay an amount, not exceeding the value of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other person affected by the conduct, in any manner that the Tribunal considers appropriate.

Implementation of the order 77 (3.2) The Tribunal may specify in an order made under subsection (3.1) any term that it considers necessary for the order’s implementation, including any term referred to in any of paragraphs 75(1.3)(a) to (g).

Definition of anti-competitive act 78 (1) For the purposes of section 79, anti-competitive act means any act intended to have a predatory, exclusionary or disciplinary negative effect on a competitor, or to have an adverse effect on competition, and includes any of the following acts: (a) squeezing, by a vertically integrated supplier, of the margin available to an unintegrated customer who competes with the supplier, for the purpose of impeding or preventing the customer’s entry into, or expansion in, a market; (b) acquisition by a supplier of a customer who would otherwise be available to a competitor of the supplier, or acquisition by a customer of a supplier who would otherwise be available to a competitor of the customer, for the purpose of impeding or preventing the competitor’s entry into, or eliminating the competitor from, a market; (c) freight equalization on the plant of a competitor for the purpose of impeding or preventing the competitor’s entry into, or eliminating the competitor from, a market;

(d) (e)

(f) (g)

(h)

(i) (j)

(k)

use of fighting brands introduced selectively on a temporary basis to discipline or eliminate a competitor; pre-emption of scarce facilities or resources required by a competitor for the operation of a business, with the object of withholding the facilities or resources from a market; buying up of products to prevent the erosion of existing price levels; adoption of product specifications that are incompatible with products produced by any other person and are designed to prevent his entry into, or to eliminate him from, a market; requiring or inducing a supplier to sell only or primarily to certain customers, or to refrain from selling to a competitor, with the object of preventing a competitor’s entry into, or expansion in, a market; selling articles at a price lower than the acquisition cost for the purpose of disciplining or eliminating a competitor; a selective or discriminatory response to an actual or potential competitor for the purpose of impeding or preventing the competitor’s entry into, or expansion in, a market or eliminating the competitor from a market; and directly or indirectly imposing excessive and unfair selling prices.

Prohibition if abuse of dominant position 79 (1) On application by the Commissioner or a person granted leave under section 103.1, if the Tribunal finds that one or more persons substantially or completely control a class or species of business throughout Canada or any area of Canada, it may make an order prohibiting the person or persons from engaging in a practice or conduct if it finds that the person or persons have engaged in or are engaging in (a) a practice of anti-competitive acts; or (b) conduct (i) that had, is having or is likely to have the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest, and (ii) the effect is not a result of superior competitive performance.

Additional or alternative order 79 (2) If, on an application under subsection (1), the Tribunal finds that a practice of anti-competitive acts amounts to conduct that has had or is having the effect of preventing or lessening competition substantially in a market in which the person or persons have a plausible competitive interest and that an order under subsection (1) is not likely to restore competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all persons against whom an order is sought to take actions, including the divestiture of assets or shares, that are reasonable and necessary to overcome the effects of the practice in that market.

Limitation 79 (3) In making an order under subsection (2), the Tribunal shall make the order in such terms as will in its opinion interfere with the rights of any person to whom the order is

directed or any other person affected by it only to the extent necessary to achieve the purpose of the order.

Factors to be considered 79 (4) In determining, for the purposes of subsections (1) and (2), whether conduct has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal may consider (a) the effect of the conduct on barriers to entry in the market, including network effects; (b) the effect of the conduct on price or non-price competition, including quality, choice or consumer privacy; (c) the nature and extent of change and innovation in a relevant market; and (d) any other factor that is relevant to competition in the market that is or would be affected by the conduct.

Additional order — person granted leave 79 (4.1) If, as the result of an application by a person granted leave under section 103.1, the Tribunal makes an order under subsection (1) or (2), it may also order the person against whom the order is made to pay an amount, not exceeding the value of the benefit derived from the practice that is the subject of the order, to be distributed among the applicant and any other person affected by the practice, in any manner that the Tribunal considers appropriate.

Implementation of the order 79 (4.2) The Tribunal may specify in an order made under subsection (4.1) any term that it considers necessary for the order’s implementation, including any term referred to in any of paragraphs 75(1.3)(a) to (g).

Leave to make application under section 74.1, 75, 76, 77, 79 or 90.1 103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 74.1, 75, 76, 77, 79 or 90.1. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under that section.

Granting leave — sections 75, 77, 79 or 90.1 103.1 (7) The Tribunal may grant leave to make an application under section 75, 77, 79 or 90.1 if it has reason to believe that the applicant is directly and substantially affected in the whole or part of the applicant’s business by any conduct referred to in one of those sections that could be subject to an order under that section or if it is satisfied that it is in the public interest to do so.

Competition Tribunal Act, RSC 1985, c 19 Proceedings 9 (1) All proceedings before the Tribunal shall be dealt with as informally and expeditiously as the circumstances and considerations of fairness permit.

Competition Tribunal Rules, SOR/2008-141 Representations in writing 119 (1) A person served with an application for leave referred to in rule 115 who wishes to oppose the application shall, within 15 days after receiving the Tribunal’s notice under rule 118, (a) serve a copy of their representations in writing on the applicant, on any other person against whom the order is sought and on the Commissioner; and (b) file the representations with proof of service.

Affidavit evidence 119 (3) Representations in writing shall not contain affidavit evidence, except with leave of the Tribunal.

Decision without oral hearing 121 The Tribunal may render its decision on the basis of the written record without a formal oral hearing.

Power of Tribunal 122 The Tribunal may grant the application for leave to make an application, with or without conditions, or refuse the application.

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