When the Commerce Act was first passed in 1986, section 36 did this by prohibiting firms from "using" their position of power in a market to exclude or inhibit their rivals. In 1994, the Privy Council decided the plaintiff in a case would have to construct a hypothetical market for the court in which the defendant firm lacks substantial market power and demonstrate that the defendant would not have undertaken the conduct in that hypothetical market. In 2001, Parliament tried to express its dissatisfaction with this approach by amending section 36. Instead of prohibiting dominant firms from using their market power in anti-competitive ways, section 36 prohibited them from taking advantage of their market power. The 2001 amendment did not ultimately spare the prohibition from these thought experiments. With time, the complexities involved in satisfying the counterfactual test have become increasingly apparent and obstructive to the effective enforcement of section 36. 