Before the Amendments
Conduct contrary to Part VI of the Act—for example, price-fixing conspiracies—gives rise to criminal sanctions and a private right of action for damages before the Federal or provincial courts. Private parties can seek damages under section 36, which requires litigants to demonstrate that their loss or damage occurred “as a result of” conduct that is contrary to Part VI of the Act.
“Reviewable” matters—such as restrictive trade practices, abuse of dominance, and mergers—must be pursued before the Competition Tribunal. Until 2002, only the Commissioner of Competition could bring applications for reviewable conduct before the Competition Tribunal.
In 2002, Parliament amended the Act to allow for private access to the Tribunal, specifically for the reviewable matters of refusal to deal and exclusive dealing, tied selling and market restriction. In 2009, Parliament added price maintenance to the list of reviewable matters captured within the private access sections of the Act. This right of private access to the Tribunal was not unfettered. Putative applicants were required to apply for leave (the “leave application”) under section 103.1 of the Act to bring an application in respect of reviewable matters included within the private access sections of the Act.
According to Canada’s Competition Bureau, the intention behind permitting private parties to bring applications before the Tribunal was to “complement the Bureau’s public enforcement and increase the deterrent effect of the [Act].” Opening the Tribunal to private litigation was also forecasted to “yield valuable jurisprudence which [would] assist the Bureau in its enforcement and application of the Act and [would] better delineate the bounds of legitimate behaviour to the business community.”
The extent to which the private right of action accomplished these aims is dubious. In the twenty-two years since the 2002 enactment of the private right of access to the Tribunal, private parties have brought only thirty-one leave applications, and none of the granted leave applications ultimately resulted in the private access applicants obtaining relief. Twenty-five of the thirty-one leave applications were contested: the Tribunal granted leave in eight of those twenty-five contested leave applications. Of the eight applications where the Tribunal granted leave, only two resulted in a contested hearing concerning the alleged anti-competitive conduct; in both instances, the relief sought by the applicant was denied.
There are several potential explanations for this historically underwhelming use of the private access provisions. Historically, the test that putative private access applicant had to meet to be granted leave to bring an application before the Tribunal was onerous, requiring companies to demonstrate that their entire business was “directly and substantially affected” by the alleged anti-competitive conduct. This requirement made it difficult for larger businesses or those with multiple product lines to obtain leave. Indeed, in most instances where a leave application was refused, it was on the basis that the applicant failed to demonstrate that the entirety of its business was “directly and substantially affected.”
Moreover, the incentive to face the headwinds of the strict leave test was less than compelling; the right to private access before the Tribunal did not include the prospect of a monetary remedy. Private parties bringing applications before the Tribunal were entitled only to “conduct” orders—behavioural remedies that targeted the anti-competitive conduct. These included orders to stop or modify the conduct at issue, or in certain cases an order to pay an Administrative Monetary Penalty (“AMP”). AMPs imposed under the Act are “debts due to His Majesty in right of Canada”—they are not distributed to the applicant.
It is against this backdrop—an under-used right of private access covering a limited selection of reviewable offences, with a strict leave test, and no possibility of a monetary remedy for successful applications—that the Parliament of Canada legislated a trilogy of amendments, drastically altering the private right of action before the Tribunal.
The Amendments Explained
From 2022 to 2024, the Parliament of Canada passed three rounds of amendments to the Act. These amendments broadened the scope of private litigation before the Tribunal in three primary ways:
- Parliament added three new reviewable matters to the list of those actionable before the Tribunal: abuse of dominance, deceptive marketing practices, and civil anti-competitive agreements.
- Parliament lowered the burden on companies seeking leave to bring an application before the Tribunal. The traditional leave test was broadened by allowing an applicant to seek leave where only part of its business was affected. A “public interest” prong was added—an unprecedented development in Canadian competition law.
- Parliament added a monetary remedy for applications brought before the Tribunal. Applicants can seek damages up to the amount of the benefit derived from the conduct that is the subject of the order, to be distributed among the applicant and any other persons “affected” by the anti-competitive conduct, at the Tribunal’s discretion.
The interaction between the addition of the public interest branch of the leave test, and the potential to receive a monetary remedy for distribution among the applicant and all “affected” persons creates the possibility of a collective action before the Tribunal.
Abuse of Dominance, Deceptive Marketing Practices, and Civil Anti-Competitive Agreements
In June 2022, Parliament expanded the private right of access to the Tribunal to include abuse of dominance (section 79 of the Act ), which encompasses scenarios where a company (or a group of companies) who has a dominant position in a market engages in conduct that harms competition in that market. Bill C-56 altered the abuse of dominance provisions further in December 2023, amending the Act such that the Tribunal may grant a prohibition order where there is either anti-competitive intent or anti-competitive effects—the Act previously required both intent and effects. Commentators have argued that the abuse of dominance provisions have historically been underenforced by the Commissioner in Canada. Since 1986, the Commissioner has only brought seventeen abuse of dominance proceedings before the Tribunal. Adding abuse of dominance to the menu of conduct actionable within the private access regime has done little to supplement this lack of enforcement. Since becoming privately actionable in 2022, private applicants only commenced three abuse of dominance leave applications before the Tribunal. Around the time that Parliament amended the private access provisions to include abuse of dominance, commentators forecasted that this conduct would be rarely pursued before the Tribunal, arguing that “[b]ehavioural remedies alone might not be sufficient incentive for private parties to incur the significant costs of prosecuting an abuse of dominance proceeding.” The newly added monetary remedy, as discussed further below, and the “seemingly sudden rise to dominance of firms in the digital platform space” may spur private parties to make greater use of the private access provisions for applicants alleging abuse of dominance in the coming years.
With Bill C-59—which received Royal Assent in June 2024—Parliament added two further types of anti-competitive conduct that private applicants can pursue before the Tribunal: civil deceptive marketing practices (section 74.1) and civil anti-competitive agreements (section 90.1). Expanding the private right of action to include section 74.1 allows private parties to seek leave to bring an application before the Tribunal regarding false or misleading representations to the public in respect of the promotion or the supply or use of a product. It is uncertain whether this addition will result in increased activity before the Tribunal, given that private parties can, under the current regime, seek damages for false and misleading representations under sections 36 and 52 of the Act. Unlike the other rights of action under s. 103.1 post-amendments, the only remedy available to private applicants under section 74.1 is restitution. Parties found liable for this reviewable practice may be ordered “to pay an amount, not exceeding the total of the amounts paid to the person who the products in respect of which the conduct was engaged in, to be distributed among the persons to whom the products were sold [. . .].” The combined effect of the restitution-only remedy and the overlap with time-tested right of action under the Act may result in this section not receiving as much attention from private parties before the Tribunal. A perhaps more impactful amendment is that private parties will—beginning on June 20, 2025—be able to bring applications regarding civil anti-competitive agreements. Notably, the scope of conduct captured under section 90.1 is broader than that captured by section 45 (contained in Part VI and actionable under section 36). Specifically, section 90.1 covers both horizontal and vertical conspiracies, whereas section 45 covers only horizontal conspiracies (i.e., conspiracies between competitors).
A Liberalized Section 103.1
Bill C-59 reduced the strictness of the leave test. As of June 20, 2025, private parties will no longer be required to demonstrate that their entire business was “directly and substantially affected” by the conduct at issue, but rather may be granted leave to bring an application where the alleged anti-competitive conduct affects only part of their business. Excluding section 74.1, this amendment applies for most of the reviewable practices captured within the scope of section 103.1, namely, refusal to deal (section 75), price maintenance (section 76), exclusive dealing, tied selling and market restriction (section 77), abuse of dominance (section 79), and anti-competitive agreements (section 90.1).
In addition to this loosening of the threshold for the existing test that applicants must meet to be granted leave to bring an application before the Tribunal, the Tribunal may also grant leave to private party applications where the Tribunal is “satisfied that it is in the public interest to do so.” A significant shift in the state of Canadian competition law, this additional prong of the leave test will seemingly allow consumers, consumer advocacy organizations, or other public interest groups to seek leave under section 103.1. While only time and precedent before the Tribunal will tell, the starting point for the public interest test will likely be a consideration of whether the application furthers the purposes of the Act, maintaining and encouraging competition in Canada. While both prongs of the amended leave test apply for most reviewable conduct available under the private access provisions, section 74.1—deceptive marketing practices—is an outlier. Private parties seeking leave to bring an application to the Tribunal respecting such conduct may only seek leave under the newly added public interest branch of the leave test.
Taken together, the lowered burden for the existing leave test and addition of the public interest prong will likely increase the number of applicants—including larger, multi-product firms and public interest litigants—who will seek and be granted leave to bring an application before the Tribunal. Applicants will need to be mindful of the aspects of the section 103.1 private access leave provision that remain the same post-amendments. Specifically, the leave application must be accompanied by an affidavit setting out “sufficient credible evidence” in support of the person’s application under the applicable section of the Act—though the standard of proof is less than a “balance of probabilities,” a “mere possibility” is insufficient. Both the respondent and the Commissioner can make responding representations. If the matter of the proposed application is or was previously pursued by the Commissioner, the Tribunal cannot consider it under the private access provisions. That said, the Tribunal cannot draw any inference from the fact that the Commissioner has or has not taken action. Private parties must bring the leave application within one year after the conduct at issue ceases. With more on the line—namely, the monetary remedy, as discussed below—it is possible that the leave application will become a more contentious arena, particularly if the applicant is seeking a remedy on behalf of other “affected” persons. The impact on practice and procedure before the Tribunal at the leave stage will be seen as these applications are brought before the Tribunal after June 20, 2025. We may see parties allocating more resources to engaging experts to opine on the economic impact of the alleged anti-competitive conduct and/or seeking an opportunity to provide oral submissions. Currently, most leave applications are decided based on written submissions alone.
The Monetary Remedy
Not only is seeking leave easier to do in the wake of the amendments, but there is an increased incentive for doing so—the amendments in June 2024 added a private right to a monetary award for reviewable trade practices. Specifically, private parties who bring applications before the Tribunal may seek a monetary award “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.” The Tribunal may distribute the monetary award “in any manner that the Tribunal considers appropriate.” For some anti-competitive acts, such as abuse of dominance, both purchasers and competitors may be affected by the alleged conduct and qualify as “any other person affected by the conduct” and thus benefit from the Tribunal’s order.
Key aspects of this amendment remain to be fleshed out: what does the term “benefit” mean? What are the boundaries around “any other person affected”? At what stage in the process do the parties determine who is “affected” and thus entitled to a potential monetary award? Irrespective of the answers to these questions, the ability to receive a monetary award from the respondent increases the incentive for a potential private applicant to seek leave from the Tribunal to bring an application before the Tribunal in respect of conduct falling within the expanded private access sections of the Act, in turn increasing litigation risks for businesses operating in Canada.
The Inception of a Mechanism for Collective Redress
Beyond motivating increased activity before the Tribunal, the ability to distribute the award “among any other person affected by the conduct” may birth a new mechanism for collective redress before the Tribunal. The interaction between the addition of the public interest branch of the leave test and the ability to distribute the monetary remedy to all “affected” persons creates an opening for quasi-class actions or “collective proceedings.” Indeed, commentators have proposed that the public interest prong will permit a “representative plaintiff” to bring actions before the Tribunal, akin to the provincial and Federal class actions regimes in Canada, or the class action regime in the United States. Practitioners on both the plaintiff and defence sides of the Bar have espoused this interpretation of the amendments. While the possibility of a collective right of action before the Tribunal is unprecedented in Canadian competition law, a similar vehicle exists in the United Kingdom, where class representatives—including trade, professional, or consumer associations—bring actions before the Competition Appeal Tribunal.
Numerous questions, both procedural and substantive, linger concerning how the expanded right of private access before the Tribunal will function in the context of collective proceedings. Will proposed settlements receive Tribunal approval? How will settlements become binding on the other “affected” persons not before the Tribunal? Will there be a fee approval mechanism, providing some Tribunal oversight into how counsel bringing claims on behalf of the applicant and “any other person affected” are paid? Will costs be awarded? Answers to these questions and several others like them will influence the extent to which this nascent mechanism for collective redress before the Tribunal is embraced by potential applicants and their counsel. The authors posit that, until these critical procedural uncertainties are clarified, applicant-side counsel will hesitate to bring these quasi-class action cases in this forum—the risks of getting caught up in time-consuming, resource-intensive litigation, with little certainty on key procedural elements of the action, are too great. Clarification may come through amendments to the Competition Tribunal Rules, practice directions, or reliance on the “gap” rule in the Competition Tribunal Rules, which provides that rules of the Federal Court may be relied on before the Tribunal where there is a lacuna in Tribunal practice or procedure.
More Law, Less Resources?
The cumulative impact of the amendments discussed above is, likely, that more private parties will bring applications seeking leave to bring an application before the Tribunal, and thus more conduct under the Act will be litigated before the Tribunal. Beyond the immediate impact on consumers and companies operating in Canada, these developments will carry broader implications for applications before the Tribunal, specifically through the development of a more diverse body of case law for abuse of dominance actions. The Commissioner of Competition has argued that the paucity of case law on point is one of the primary deterrents to enforcing the abuse of dominance provisions—without a robust body of Tribunal jurisprudence to draw from, each proceeding is replete with novel legal issues. Litigating novel legal issues requires time and money. An increased flow of applications before the Tribunal will clarify legal tests and concepts that have thus far received little consideration, over time decreasing the expense associated with bringing these applications before the Tribunal.
Conclusion
With the trilogy of legislative amendments to the Act between 2022 to 2024, the Parliament of Canada has introduced sweeping changes into Canada’s competition law landscape, materially expanding the ability of private parties to seek relief before the Tribunal for a wide range of anti-competitive conduct. The combination of a less stringent leave test, the availability of a monetary remedy, and the legislative framework for a nascent quasi-class actions regime will likely result in the Tribunal becoming a more well-trafficked forum for private party antitrust disputes come June 20, 2025, when the full slate of amendments come into effect.
The amendments represent both an opportunity and risk for Canadian businesses. Businesses impacted by reviewable conduct now have a more lenient leave test and an opportunity for a monetary remedy. At the same time, businesses risk being the respondent in such applications and should review their business practices to ensure compliance with the Act.
