The Regulated Conduct Doctrine Brews A Defence For Competition Class Action Against The Beer Store

In a decision using metaphors ranging from the sinking of the Bismarck to a baseball game and a tennis match, the Ontario Superior Court of Justice recently granted summary judgment to the defendants in a $1.4 billion competition class action lawsuit against Ontario's privately-held but government-authorized beer store monopoly, Brewers Retail Inc. ("Beer Store"), its multi-national beer company owners, and the province's government-owned liquor store monopoly, the Liquor Control Board of Ontario ("LCBO") (collectively, the "Defendants").¹

The decision is important because it reaffirms the strength and breadth of the Regulated Conduct Defence ("RCD") to the criminal conspiracy provisions of the Competition Act, and confirmed that the RCD can be relied on by defendants in defence of civil claims for damages alleged to result from conduct that violates these criminal conspiracy provisions. The RCD provides that conduct will be exempt from application of the