Expanded Scope for Private Actions Under Canada's Competition Act Now in Effect

Amendments to the Canadian Competition Act (Act) that came into effect on June 20, 2025 significantly expand the rights and incentives for private parties to seek orders from the Competition Tribunal (Tribunal). Among other things, these amendments (i) enable private applications (with leave of the Tribunal) under the civil misleading advertising and civil anti-competitive agreements provisions of the Act; (ii) allow the Tribunal to award private applicants monetary awards not exceeding the value of the benefit derived from certain reviewable conduct; and (iii) expand the grounds on which private parties may obtain leave to bring an action before the Tribunal.

These changes, together with recent amendments to relevant substantive provisions of the Act, may expose businesses operating in Canada to new or greater antitrust-related litigation risks.

Below we discuss:

• the provisions of the Act pursuant to which private parties may bring applications to Tribunal;
• the types of orders now available to private parties, including orders for monetary payments; and
• the criteria for private parties to obtain leave to seek an order from the Tribunal.

Scope of Private Access

Prior to the 2022 amendments to the Act, private enforcement was limited to: (i) damages arising from violations of the criminal provisions of the Act, such as price fixing by competitors, and (ii) a more restricted private right to apply to the Tribunal for prohibition and certain other orders in respect of specified civil reviewable trade practice provisions of the Act.

In particular, private parties have long been able to seek civil damages arising from criminal offences under the Act. Private parties, including representative plaintiffs in class actions, have frequently sought damages for alleged contraventions of the Act’s criminal conspiracy or bid-rigging provisions and criminal deceptive marketing practices provisions. Indeed, guilty pleas for criminal offences typically lead to follow-on class action claims in either the Federal Court or provincial superior courts.

Non-criminal reviewable matters are almost exclusively within the purview of the Tribunal. Enforcement of the civil reviewable practices provisions has, to date, principally been left to the Commissioner of Competition, the head of Canada’s Competition Bureau. Only the Commissioner could enforce those provisions until 2002, when the Act was amended to, in certain circumstances, allow private parties to seek orders such as injunctions or mandatory supply orders, under certain provisions of the Act, principally refusal to deal, exclusive dealing and tied selling. Similar rights of private access for price maintenance and abuse of dominance were added in 2009 and 2022, respectively. However, private applications to the Tribunal under these civil reviewable practices provisions have been sparse.

With the recent extension of private access to the civil misleading representations provisions as well as the civil anti-competitive agreement provisions, private applications may now be permitted for most of the civil reviewable practices provisions of the Act. Our Appendix below summarizes the substantive elements and remedies available under each of those provisions.

New Competition Tribunal Power to Order Monetary Payments

Although a number of factors may have contributed to private parties’ limited recourse to the Tribunal to date, the inability of private parties to obtain monetary awards was likely a major contributing factor. However, as a result of the June 20, 2024 amendments (which came into force on June 20, 2025), where the Tribunal finds that grounds for certain types of orders have been established under a relevant reviewable practice provision (which notably excludes the misleading representations provisions), the Tribunal may now also order monetary payments to private applicants and any other persons affected by the conduct of an amount not exceeding the "benefit derived from the conduct that is the subject of an order". The payments can be distributed in any manner that the Tribunal considers appropriate. (Such monetary orders are sometimes referred to as "disgorgement" remedies.)

Although the Tribunal’s expanded power to order disgorgement payments may lead to more frequent private applications, it remains to be seen how the Tribunal will determine the "benefit derived" from conduct found to provide grounds for an order. For example, where the challenged conduct requires demonstration of a substantial preventing or lessening of competition, some commentators have suggested that the calculation of the benefit derived from that conduct will require a comparison to the respondent’s likely circumstances if it had adopted a less anti-competitive policy that did not cross the threshold of substantially preventing or lessening competition. In any event, the criteria for determining the maximum amount for a disgorgement payment may differ from the calculation of damages incurred by customers or other affected persons.

While the Tribunal now has the power to order monetary payments to not only a private applicant but also any other person affected by the respondent’s conduct, the recent amendments did not expressly incorporate a procedural regime for class proceedings, such as the Federal Courts Rules, which provide for representative plaintiffs or applicants, certification as a class proceeding, notice to class members, participation by class members, opting out and exclusion by class members, appeals and costs. It remains to be seen how the Tribunal will address these and other procedural issues associated with representative private actions, either generally or in the context of specific private applications.

It also remains to be seen how the new power to order disgorgement payments will interact with the Tribunal’s power to order a respondent to pay "administrative monetary penalties" (AMPs) to the government for abuse of dominance or certain types of anti-competitive agreements. AMPs can be issued in amounts not exceeding the greater of

1. C$25 million for abuse of dominance or C$10 million for civil anti-competitive agreements, and
2. three times the value of the benefit derived from a challenged anti-competitive practice or, if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues.

While disgorgement payments are not available for applications by the Commissioner, AMPs are not expressly excluded in the case of a private application for abuse of dominance or an anti-competitive agreement. However, the Act provides that the purpose of an AMP is to "promote practices by [the respondent] that are in conformity with the purposes of [the relevant provision of the Act] and not to punish the respondent". Accordingly, the Tribunal would likely take any disgorgement orders into account in determining whether an AMP is also required, and in considering the appropriate magnitude of any such AMP.

Limitations on Private Access

To commence a private action before the Tribunal, the applicant must first obtain leave of the Tribunal. As a threshold matter, the Tribunal cannot grant leave where the conduct is the subject of an inquiry by the Commissioner or was the subject of an inquiry that was discontinued because of a settlement with the Commissioner. Similarly, the Tribunal may not grant leave for a matter that is the subject of an application already submitted to the Tribunal by the Commissioner. This means that the type of follow-on class proceedings that are common in context of violations of criminal provisions of the Act are precluded before the Tribunal. That said, it appears that leave is not precluded where the Commissioner has initiated an inquiry but has subsequently discontinued it without settlement.

The test for leave differs depending on the reviewable conduct provisions that are relied upon. More specifically, for the new right of private access in respect of reviewable marketing practices, the Tribunal may grant leave to a private applicant only if the Tribunal determines that it is "in the public interest" to do so. It remains to be seen how the Tribunal will assess the public interest in this context.

For most of the other reviewable matters for which private access is available, the Tribunal may grant leave (i) "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 [the relevant section of the Act] that could be subject to an order under that section", or (ii) "if it is satisfied that it is in the public interest to do so". Prior to June 20, 2025, leave for these provisions could be granted only if the applicant were directly and substantially affected in the applicant’s business. (Public interest was not a ground for granting leave under these provisions.) Accordingly, the criteria for the Tribunal to grant leave for these provisions is now more expansive in the sense that (i) it is sufficient that only part of the applicant’s business is directly and substantially affected by the challenged conduct and (ii) the public interest criterion is an additional basis for granting leave.

Most of the private applicants under the pre-June 20, 2025 leave standard were denied leave to proceed with their actions for a variety of reasons. For example, in one refusal to deal application, the operator of a department store was unable to satisfy the test for leave because the impact of a cosmetic supplier’s refusal to supply the applicant was found not to result in a sufficient impact on the overall business of the department store. The new test would no longer preclude an application on that basis.

That said, unless it is relying on public interest grounds, a private applicant is still required to satisfy the Tribunal that the alleged conduct "could be subject to an order" of the Tribunal under the relevant section of the Act. Tribunal jurisprudence suggests that, to meet this criterion, applicants must put forward "credible, cogent, and objective evidence" that goes beyond a "mere possibility" to meet the test for leave. Some commentators have interpreted a recent Tribunal decision denying leave to an applicant (under the pre-June 20, 2025 criteria) as imposing a high evidentiary standard to meet this criterion.

Commissioner’s Involvement in Private Proceedings

A further consideration for persons considering commencing a private application before the Tribunal is that out-of-court settlements of such applications are now subject to notification to, and potential challenge by, the Commissioner. Prior to June 20, 2025, parties to a private action before the Tribunal could settle their dispute through either a consent agreement registered with the Tribunal (which has the same force and effect as an order of the Tribunal) or a confidential out-of-court agreement. The Commissioner has always been able to seek an order of the Tribunal to vary or rescind a consent agreement if the Commissioner believed that the agreement has or is likely to have anti-competitive effects.

As of June 20, 2025, private litigants before the Tribunal who reach an out-of-court settlement after leave has been granted are subject to a new obligation to provide a copy of the settlement agreement to the Commissioner. The Commissioner may then apply to the Tribunal to vary or rescind the settlement agreement on the basis that "that the [settlement] agreement has or is likely to have anti-competitive effects." Particularly in the absence of "substantial" anti-competitive effects, it is unclear what grounds or ability the Tribunal would have to rescind or vary such a settlement agreement. Nevertheless, the requirement to notify the Commissioner of an out-of-court settlement may incentivize parties to settle disputes prior to the Tribunal granting leave to bring the proceeding. Alternatively, to avoid a subsequent challenge by the Commissioner, settling parties may seek to consult with the Commissioner before finalizing out-of-court settlements.

Where a private party has obtained leave under certain provisions, the Commissioner may intervene at any stage of such proceedings. The Commissioner has stated that the Competition Bureau will be keeping a close eye on private applications and scrutinizing them for opportunities to intervene and provide the Bureau’s perspective.

On June 20, 2025, the Bureau issued a revised information bulletin on private access to the Tribunal. The bulletin indicates that in determining whether to intervene at any stage the Bureau will consider, among other things, (i) the overall impact of the challenged conduct on Canadian consumers, businesses, and the economy, (ii) whether the proceeding raises important legal issues, and (iii) the strength of the case. The bulletin leaves open the possibility that the Bureau could either (i) commence an inquiry shortly after being notified of a leave application to preclude the matter from proceeding as a private application or (ii) commence a broader application, possibly under other sections of the Act for which private access is not available (which would include the merger provisions of the Act). (While it is not described as a draft, the Bureau is inviting feedback on the bulletin until August 19, 2025.)

Next Steps

Private applicants may well file some test cases with the Tribunal in the coming weeks. As they proceed through the litigation process, such initial applications may provide greater certainty on the prospects for private applicants to obtain leave and disgorgement payments, as well as the basis on which collective actions may proceed. These developments will further inform the risk profile of engaging in conduct that could be viewed as within the scope of a reviewable practice for which private access is available. In the meantime, businesses operating in Canada may wish to evaluate or consider modifying practices that could provide grounds for private applications to the Tribunal.

Appendix: Reviewable Matters for Which Private Access to the Competition Tribunal is Available

Deceptive Marketing Practices

As of June 20, 2025, private access to the Competition Tribunal is available for a range of reviewable marketing practices set out in Part VII.1 of the Competition Act. Part VII.1 contains a general provision capturing representations to the public made for the purpose of promoting the supply of a product that are false or misleading in a material respect. Such representations may include representations of prices that are not attainable due to additional fixed obligatory charges, sometimes referred to as "drip pricing."

Part VII.1 also contains more specific provisions directed at, for example, (i) warranties or guarantees of performance that are not based on adequate and proper tests, and (ii) since June 2024 includes "greenwashing" provisions that prohibit

1. representations to the public in the form of statements, warranties or guarantees "of a product’s benefits for protecting or restoring the environment or mitigating the environmental, social and ecological causes or effects of climate change" that are not based on an adequate and proper test; and
2. representations to the public relating to the "benefits of a business or business activity for protecting or restoring the environment or mitigating the environmental and ecological causes or effects of climate change" unless such claims are based on "adequate and proper substantiation in accordance with internationally recognized methodology."

If either a private party or the Commissioner brings a successful action under the reviewable misleading representation provisions, including the greenwashing provisions, the Tribunal may order the business to

• cease the impugned conduct;
• publish a notice correcting the misrepresentation;
• pay an AMP not exceeding the greater of (i) C$10 million and (ii) three times the value of the benefit derived from the deceptive conduct, or, if that amount cannot be determined, 3% of the corporation’s annual worldwide gross revenues; and
• in the case of conduct within the scope of the general provision or certain electronic messages provisions (requiring a material misrepresentation to the public), pay an amount not exceeding the total of the amounts paid to the respondent for the products in respect of which the conduct was engaged in, to be distributed among purchasers of the relevant products (other than wholesalers, retailers or other distributors, to the extent that they have resold or distributed the products) in any manner that the court considers appropriate (sometimes referred to as a "restitution" order). This remedy is not available for applications brought solely under the new "greenwashing" provisions.

The Tribunal has been empowered to order restitution payments under the misleading advertising provision since 2009, but only since June 20, 2025 have private parties been able to apply for a restitution order.

In addition, the Commissioner or a private party (who has been granted leave) may apply for a temporary order to stop a person from engaging in reviewable marketing conduct. In order to succeed in such an application, the applicant must demonstrate that serious harm is likely to ensue and that the balance of convenience favours issuing the injunction.

Notably, an AMP is not available if the respondent can establish that it exercised due diligence to prevent the relevant conduct from occurring.

Reviewable Anti-Competitive Agreements

Section 90.1 of the Act provides for opportunities to challenge both

1. agreements among competitors that are likely to prevent or lessen competition substantially, and
2. agreements among non-competitors if preventing or lessening competition is a significant purpose of the agreement, or any part of it, and the agreement is likely to prevent or lessen competition substantially.

Where the Tribunal finds such an agreement, it may issue

• an order prohibiting anyone from doing anything under the agreement;
• as noted above, an order requiring the payment of an AMP not exceeding the greater of (i) C$10 million and (ii) three times the value of the benefit derived from the agreement, or, if that amount cannot be determined, 3% of the person’s annual worldwide gross revenues;
• an order requiring respondents to take any other action, including divesting assets or shares, necessary to overcome the effects of the challenged agreement; and
• in a private application, a disgorgement order.

For this provision and the other reviewable matters discussed below, the Commissioner or a private applicant can also seek an interim order pending a hearing on the merits, having regard to the same principles that would be considered by superior courts when granting interlocutory or injunctive relief.

Abuse of Dominance

Amendments to the Act in December 2023 enacted a new framework for abuse of dominance. A different test now applies, depending on whether the remedy sought is (i) a prohibition order (i.e., an order prohibiting the dominant entity or entities from engaging in the challenged conduct); or (ii) other remedies such as AMPs or orders to take action to restore competition, including divesting assets or shares as necessary.

To obtain a prohibition order under the new framework, the Commissioner or a private applicant now needs to establish only that (i) a firm is dominant (or a group of firms is jointly dominant); and (ii) the firm(s) engaged in conduct with either anti-competitive intent or effect that is not a result of superior competitive performance.

To obtain other remedies (such as an AMP or an order to restore competition), the Commissioner or a private applicant will still need to establish that the firm is dominant, it has engaged in a practice of anti-competitive acts, and that practice prevents or lessens competition substantially or is likely to do so.

Prior to the December 2023 amendments, any order under the abuse of dominance provisions required proof of a likely substantial prevention or lessening of competition. Those amendments also significantly increased the potential magnitude of any AMPs that may be ordered for abuse of dominance. As noted above, the Tribunal may order an AMP not exceeding the greater of: (i) $25 million; or (ii) three times the value of the benefit derived from a challenged anti-competitive practice or, if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues. Where the Tribunal issues a prohibition order or an order to restore competition, in the case of a private application, it may also issue a disgorgement order.

Exclusive Dealing, Tied Selling and Market Restriction

Exclusive dealing includes an agreement that obliges or induces a customer to purchase products exclusively or primarily from a supplier or to refrain from purchasing from another supplier.

Tied selling includes an agreement where the sale of a product or service to a customer is conditional upon the customer's agreement to purchase a different or "tied" product or service or, alternatively, not to purchase the "tied" product or service from any other supplier.

Market restriction includes an agreement that mandates the geographic territories in which customers may sell the supplier’s products, the categories of buyers to which these products may be sold or the categories of products that may be sold.

Subject to certain exceptions in the Act, where a practice of exclusive dealing, tied selling or market restriction is widespread in a market or engaged in by a major supplier in a market and is likely to prevent or lessen competition substantially – for example by impeding entry or expansion of competitors in the case of exclusive dealing or tied selling – the Tribunal may order all or any of the relevant suppliers to cease engaging in the conduct or to take measures to restore or stimulate competition. In a private application, the Tribunal may now also issue a disgorgement order.

Refusal to Deal

To make out a refusal to deal claim under the Act, an applicant must establish that it is "substantially affected in the whole or part of their business" due to its inability to obtain adequate supplies of a product anywhere in a market on usual trade terms. A "product" that can be subject to a refusal to deal claim includes "a means of diagnosis or repair." The Tribunal must also be satisfied that the applicant is willing and able to meet the usual trade terms of suppliers of the product, the product is in ample supply and the supplier’s refusal to deal with the applicant is likely to have an adverse effect on competition.

Where the requisite conditions are met, the Tribunal may order one or more suppliers to accept a person as a customer on usual trade terms. In a private application, the Tribunal may also now issue a disgorgement order.

Price Maintenance

Subject to certain exceptions, a supplier may be considered to engage in reviewable conduct under the price maintenance provisions of the Act if it, either directly or indirectly

• by agreement, threat, promise or any like means, influences upward or discourages the reduction of the price at which its customer, or any other person to whom the product comes for resale, supplies or offers to supply or advertises a product within Canada, or
• refuses to supply or otherwise discriminates against any person because of the low pricing policy of that person.

It is also reviewable conduct to, by agreement, threat, promise or like means, induce a supplier, as a condition of doing business, to refuse to supply another person because of the low pricing policy of that other person.

In any event, the Tribunal may issue an order under the price maintenance provisions only if the conduct in question has had, is having, or is likely to have, an adverse effect on competition in a market. Where the Tribunal issues an order under the price maintenance provisions, it may also issue a disgorgement order.

Notably, for price maintenance, the Tribunal may grant leave to make an application if the applicant is directly affected by conduct that could be subject to an order under that section. The Tribunal need not determine that the applicant was substantially affected by the conduct. However, public interest is not a ground for granting leave for a private price maintenance application.