The main developments in Competition Law and Policy for 2024 – Canada

For the last few years, a series of significant, iterative amendments to Canada’s Competition Act (Act) have occupied centre stage in any discussion of Canadian competition law and policy. The last of these amendments is set to come into effect in June 2025. As a result, the focus is shifting more and more towards how they will be implemented. In this annual review, we summarize the recent changes to the Act, the guidance from the Canadian Competition Bureau (Bureau) on its enforcement approach under the new provisions, and what recent trends in public and private enforcement can tell us about what to expect in the year ahead.

A Series of Significant Amendments

Following three rounds of significant amendments, the principal changes to the Act can be summarized as follows:

1. Merger Review: Early changes to the merger review provisions eliminated the often controversial “efficiencies defence”, introduced a new anti-avoidance provision for mandatory pre-merger notification, and expanded the relevant factors for assessing the competitive effects of transactions. The June 2024 amendments were far more significant, introducing a new rebuttable presumption that transactions resulting in market shares above certain statutory market concentration thresholds will prevent or lessen competition, revising the remedial standard for transactions that raise competition concerns, adjusting pre-merger notification thresholds to capture sales “into” Canada, and extending the period within which the Bureau can challenge a non-notifiable transaction to three years following closing.
2. Abuse of Dominance: The December 2023 amendments broadened the scope for enforcement under the abuse of dominance provisions by allowing the Bureau or private parties to seek a prohibition order if they can establish that the respondent firm (1) is dominant in a market; and either (2) engaged in a practice of anti-competitive acts or conduct that had the effect (or likely effect) of substantially preventing or lessening competition in a market. If all three elements are proven, a broader range of remedies is available (including significant administrative penalties). Additionally, the amendments extended the non-exhaustive list of prescribed anti-competitive acts to include, among other things, the imposition of “excessive and unfair selling prices” (discussed further below).
3. Competitor Collaborations: Early amendments introduced new criminal prohibitions on wage-fixing and no-poach agreements between employers, even if those employers do not otherwise compete. Subsequent amendments broadened the civil competitor collaboration provisions governing agreements between competitors to also prohibit agreements between non-competitors (e.g., parties in a vertical, customer-supplier relationship) if (1) a significant purpose of the agreement (or any part of it) is to prevent or lessen competition in any market; and (2) the effect or likely effect is to substantially prevent or lessen competition.
4. Misleading Advertising: The initial June 2022 amendments codified the Bureau’s long-standing position that “drip pricing” (e., advertising a price that is not attainable due to mandatory, non-governmental fees) is a misleading representation. The latest round of amendments introduced new provisions targeting “greenwashing” by requiring businesses advertising in Canada to substantiate certain environmental claims relating to the benefits of a business, business activity, product or service for protecting or restoring the environment or mitigating the environmental, social and ecological causes or effects of climate change.
5. Private Rights of Action: Beginning in June 2025, private parties will be able to bring actions, with leave from the Competition Tribunal (Tribunal), under the civil misleading advertising and competitor collaboration provisions. Private parties can already bring actions under the abuse-of-dominance provisions with the permission of the Tribunal. In addition to the above changes, the Tribunal has increased the monetary penalties that it can impose under the abuse dominance, misleading advertisement, and civil competition collaboration provisions. The civil misleading representation provisions as well as the civil competitor cooperation provisions will have penalties that are the greater of $10,000,000 and three times the benefit derived by the conduct (or 3% of a person’s worldwide gross annual revenues if the amount cannot be determined). Initial Bureau Guidance

Initial Bureau Guide

In 2024, the Bureau released more and more guidance on its enforcement strategy for the Act as amended. While the Bureau’s guidance has principally been released in draft form for public consultation, even this preliminary guidance may offer insights into the application of the new and amended provisions.

Initial Guidance on Property Controls

Beginning in 2023, the Bureau has raised concerns that certain types of common clauses in real estate agreements restricting the use of neighboring properties (i.e., property controls) were negatively impacting competition in the grocery sector. These concerns led directly to the changes to the civil competitor collaboration provisions discussed above, which expanded the provision to agreements between non-competitors (including, e.g., landlords and tenants) that have the purpose and effect of harming competition.

The newly amended civil competitor collaboration provision is drafted broadly and is likely to apply to a range of agreements beyond the real estate and grocery sectors. In August 2024, the Bureau released an initial statement on “preliminary implementation of competitor property controls”, which discussed the application and abuse of dominance provisions to these contractual clauses. The preliminary guidance takes a generally hostile view of these types of property controls. For example, it asserts that restrictive covenants run with the land to restrict future use and will not “be justified outside of exceptional circumstances”. The preliminary guidance takes a generally hostile view of these types of property controlsasserting, for example, that restrictive covenants run with the land to restrict future use and will be not “be justified outside of exceptional circumstances”.

The Bureau takes the position that property controls “by their nature” can raise serious competition concerns, but may be justified in “limited cases… if they are necessary for a firm to make investments that increase competition”. In this regard, the Bureau takes the position that such controls “must be as limited as possible to be justified”, and adds that relevant considerations will include the duration of the property control and the scope of its restriction.

The Bureau takes the position that it can challenge property controls under either the abuse of dominance or the civil and criminal competitor agreement provisions. The preliminary guidance does a poor job of explaining the legal tests for each of these provisions. It does not explain how the Bureau will define the relevant geographic markets and product markets in order to determine whether a firm has a dominant position and assess the competitive impact of a contested agreement. The December 2023 amendments stated that this conduct included directly or indirectly imposing unfair and excessive selling prices. The Bureau goes on to state that “

1. imply charging high prices to consumers is not usually an abuse of dominance regardless of how high those prices are” and further recognized that high prices are not normally intended to have a negative effect on competitors or competition. The Bureau goes on to state that “
2. imply charging high prices to consumers is not usually an abuse of dominance regardless of how high those prices are” and further recognized that high prices are not normally intended to have a negative effect on competitors or competition.
3. While the Bureau’s guidance may evolve and is not binding on private plaintiffs, it provides helpful clarity that the Bureau views the new “excessive and unfair selling price” provision as unlikely to apply in most cases.

Consultation on Merger Enforcement Guidelines

In November 2024, the Bureau published a discussion paper

for public consultation setting out topics it may consider when updating its Merger Enforcement Guidelines (MEGs). The MEGs are a general guide to the Bureau’s approach in analyzing mergers. The discussion paper is long and comprehensive, introducing many topics for possible updates. In light of recent amendments to merger review provisions, it is important to note:[s]With regard to the new presumption of rebuttable harm based on measures structural market concentration the Bureau states that revised guidelines “may outline” the Bureau’s application of the presumption. In this regard, the Bureau notes market concentration as a “useful but imperfect” indicator for competitive harm. It will therefore consider other evidence in its analyses and that some other agencies have clarified that “higher metrics of concentration require stronger evidence to rebut”. Conversely, the Bureau notes that competition concerns may arise even if a transaction does not exceed the statutory thresholds for the presumption.

As noted above, amendments to the merger review provisions expanded the non-exhaustive list of factors that may be considered when assessing the competitive impact of a transaction. One of the new factors was the impact the transaction had on the labour markets. In this regard, the paper states that the Bureau had already considered the impact on labour markets as relevant to its merger review. The Bureau notes that, based upon economic research, “labour market may be narrow and subjected to existing monopsony”. While the revised guidelines may provide further clarity on the Bureau’s approach to assessing labour impacts, the implication seems to be that these impacts will be the subject of greater scrutiny in the merger review process.

Finally, in the wake of the repeal of the efficiencies defence, the discussion paper takes the view that:

The removal of the efficiency exception is a clear signal that efficiencies cannot save an anti-competitive merger. The merger provisions are now focused on whether a merger is likely to lessen or prevent substantial competition. Consistent with other jurisdictions, we expect that efficiencies will not usually affect the analysis of whether a merger will lessen or prevent competition substantially.

However, the Bureau leaves some room for future guidance on when pro-competitive, rivalry-enhancing benefits could nonetheless be relevant to its analysis. It also remains to be seen whether the Competition Tribunal will share the Bureau’s initial perspective, and efficiencies can be relevant to whether a merger is likely to prevent or lessen competition at all as, for example, reduced costs can create incentives to increase output or destabilize a market. Consultation on Environmental Claims Guidance

As noted above, the June 2024 amendments to the Act introduced two new provisions requiring that certain environmental claims about the benefits of (i) a product or service be based on an “adequate and proper test” and (ii) a business or business activity be based on “adequate and proper substantiation in accordance with internationally recognized methodology”.

1. The Bureau’s draft guidance
2. on environmental claims, released for public consultation on December 23, 2024, restated its guidance
3. from earlier in 2024 that environmental claims should be truthful, both in their literal meaning and their general impression, should be clear and specific (not vague), should avoid exaggeration, and should avoid aspirational claims, such as goals and timelines for future environmental performance, that are not based on a “concrete, realistic and verifiable plan” with “meaningful steps underway”. With respect to the new greenwashing provisions, a few additional points are worth highlighting:

The draft guidance states that the Bureau “will likely consider a methodology to be internationally recognized if it is recognized in two or more countries”. Importantly, the guidance acknowledges that the Act does not require recognition of the methodology by governments in two or more countries, and further acknowledges that a methodology developed by an industry and accepted in two or more countries may meet the requirement, provided that substantiation through the methodology is adequate and proper.

Testing and third-party verification will not necessarily be required to meet the requirement of substantiation in accordance with an internationally recognized methodology, unless the methodology requires such testing or verification. The draft guidance clarifies the Bureau’s enforcement priorities, which are focused on claims made in marketing and promotion materials, rather than those made to investors or shareholders in securities filings. The guidance does note that if representations made in securities filings are repeated in promotional materials, the Bureau will consider them marketing representations.

Comments can be submitted to the public consultation on this draft guidance until February 28, 2025.

Key Enforcement Trends

The Bureau maintained a publicly active enforcement posture throughout 2024, with high profile litigation and an increased use of so-called section 11 orders requiring targets of Bureau inquiries and third parties to produce detailed records and written responses. Additionally, with the expansion of private rights of action beginning in June 2025, recent forays by private plaintiffs provide potential insight into how private actions may unfold in the year ahead. Litigation

1. In May 2023, the Commissioner of Competition (
2. Commissioner
3. ), the head of the Bureau, filed an application against Cineplex, Canada’s largest cinema chain, alleging that the manner in which Cineplex added an online booking fee to the price of movie tickets purchased online contravenes both the general misleading representations provisions of the Act and the newly-introduced drip pricing provision. In September 2024 the Tribunal ruled in favor of the Commissioner. Cineplex has appealed against the Tribunal’s ruling.

The Tribunal decision is noteworthy for several reasons. The Tribunal’s decision is notable for a few reasons. First, under amended penalty provisions, it ordered Cineplex to pay a $38.9-million administrative monetary fine, the highest penalty ever ordered under the Act. The value of the penalty reflects the full revenues generated from the online booking fee, which the Tribunal identified as the benefit derived from Cineplex’s conduct.

Beyond the attention-grabbing penalty, however, the decision offered some general guidance on how the Tribunal will apply the misleading representation provisions. The Tribunal clarified, in particular, that the “general perception” of a contested representation should be assessed through the eyes of the “ordinary consumer” of the product or services. This was contrary to the Commissioner’s opinion that the general impression of a disputed representation should be evaluated from the standpoint of a “credulous consumer”. In this case, the Tribunal also held that only the information visible “above-the-fold” (i.e. without scrolling down the webpage) was relevant for assessing the general perception of a representation. The Bureau has used this power for many years, but a few recent applications are notable as potential windows into Bureau enforcement in the year to come. The Bureau has used this power for many years, but a few recent applications are noteworthy as they could be a window into Bureau enforcement in the future. The Federal Court granted the order in part, but declined to grant the broad data request, which would have required Amazon to provide 36 fields of data on a weekly schedule (from January 2023 until the date of order) for products in four specific product categories. This was because the Federal Court was concerned that the scope of this request was unknown and possibly unreasonable. In its submissions to Court and in an application from the Court’s decision, Bureau has taken the position that the Court erred by exercising its discretion to not issue a section eleven order. This is because the Court applied a principle of proportionality to the section order investigative process (which has been used for many years as part of the Court’s evaluation of these orders). While the appeal has not yet been argued, the Bureau’s position likely foreshadows a continued and potentially aggressive use of section 11 orders in the year to come.

Kalibrate:

In July 2024, the Bureau sought a section 11 order as part of its inquiry into conduct by Kalibrate, a software supplier that offers data, analytics and consultancy services for retail gas stations. The Bureau is examining whether Kalibrate services allow retailers to coordinate retail prices by using Kalibrate software or services. The order and the inquiry that led to it reflect a growing concern by competition authorities about AI and algorithms being used to coordinate competition behaviour and reduce competition between firms. At this time, there is no conclusion that any wrongdoing has occurred. However, the basis for the inquiry likely reflects the Bureau’s enforcement interest in this area, and we can expect algorithmic pricing tools to continue to attract Bureau scrutiny in the year ahead.

Broadridge:

Notably, the parties (including the subject of the inquiry) had each filed pre-merger notifications with the Bureau, and the resulting statutory waiting period had lapsed without the Bureau issuing a supplementary information request to extend its review. The parties completed the deal despite the concerns raised by the Bureau following the expiration of the waiting period. After this, the Bureau sought section eleven orders to advance its investigation into whether the transaction would or was likely to prevent or lessen competition. The section 11 order, which was granted in November of 2024, addressed the concerns raised by the Bureau after the expiration of waiting period. Broadridge argued, among other things that the Bureau was not allowed to seek section 11 orders as part of a merger review or open a parallel review under the abuse-of-dominance provisions. These arguments were not accepted. These arguments were not accepted.

Private ApplicationsIn July 2024, JAMP Pharma Corporation filed an application for leave with the Tribunal to commence an application against Janssen Inc., alleging that Janssen had engaged in a practice of anti-competitive acts intended to prevent or delay entry by JAMP and other potential competitors to certain Janssen products contrary to the abuse of dominance provisions. Under the Act, in order to be granted leave JAMP needed to demonstrate that there is “reason to believe” that JAMP is “directly and substantially affected in the applicant’s business” by Janssen’s impugned conduct.

While prior case law dealing with applications for leave under other sections of the Act had required applicants to demonstrate that the impugned conduct had a direct and substantial impact on the applicant’s entire business, the Tribunal held that a private applicant under the abuse of dominance provisions is not required to show that it is “directly and substantially affected in its entire business by the practice”. The Tribunal’s decision was limited to the abuse of dominance provision. Starting in June 2025, the test will be expanded to allow the Tribunal to grant leave if the applicant’s business is affected substantially, in whole or part. The test for leave will also be expanded to permit the Tribunal to grant leave where it is satisfied that it is in the public interest to do so.

Ultimately, the Tribunal dismissed the application for leave on the basis that JAMP had failed to present sufficient, cogent evidence to support a bona fide belief that Janssen had engaged in a practice of anti-competitive acts or that the impugned conduct had the effect of substantially lessening or preventing competition in a market, as would be required for the underlying application against Janssen. Moreover, the Tribunal held that JAMP’s evidence did not support a bona fide believe that JAMP was directly and substantially affected in its business.

While this application was unsuccessful, the Tribunal’s willingness to adopt a broad interpretation of the legal test for leave may signal an openness to private applicants under the expanded provisions coming into force in June 2025. It remains to be seen what type of evidence will be required to support particular allegations of abuse of dominance in future leave applications.

Conclusions

1. For the last few years, Canadian competition law and policy has been characterized by significant and rapid change. We are now beginning to see their impact as the final amendment in a series comes into force this year. The Bureau’s guidance has provided important clarifications on some amendments while also raising new questions. The expansion of the private rights under the Act could lead to new case law, and eventually greater clarity. However, it has also created significant uncertainty for Canadian businesses as we wait to see the application of the new leave and remedy provisions. With all these competing factors, 2025 will be a year of interesting developments for both competition practitioners and Canadian businesses.

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