On May 20, 2025, the Competition Bureau (the "Bureau") released the final version of its Market Studies Information Bulletin (the "Bulletin"), providing updated guidance on how it plans to use its new market study powers. The Bulletin's release follows a public consultation on a draft bulletin that had been published on October 23, 2024 (the "Draft Bulletin"). We highlight a few key points from the Bulletin below and provide businesses with advice for what they should do when facing a potential market study.
Background on the Bureau's Market Study Powers
As we previously noted, with the passage of Bill C-56 on December 15, 2023, the Bureau acquired new compulsory information-gathering powers for the purpose of conducting market studies. Market studies are in‑depth examinations to assist the Bureau in understanding competition issues and market dynamics in industries that it believes may not be as competitive as they could be.
Prior to these amendments, the Bureau did not have the ability to compel businesses to produce information to advance its market studies, and instead relied on voluntary provision of information from industry participants. Under the new market studies framework, the Commissioner can now apply for court orders to compel businesses – typically those in a market or industry that is subject to such market study – to produce documents, data and written submissions, as well as to produce company representatives for oral examination.
The Bureau has already used its new market study powers once. In May 2024, the Bureau announced that it would be launching a market study into the state of competition in Canada's airline industry. The Bureau's focus in that study is on the state of airline industry competition, barriers to entry and expansion, and obstacles to informed consumer choice. In terms of timelines, the airline market study has progressed as follows:
- Consulting on Terms of Reference (May 27, 2024 – June 17, 2024)
- Finalizing Terms of Reference and Officially Launching the Study (June 17, 2024 – July 29, 2024)
- Information Gathering and Stakeholder Engagement (including court orders to Air Canada and WestJet requiring the production of information) (Summer / Fall 2024)
- Analyzing Information and Preparing Report (Winter / Spring 2025)
- Report Publication (June 2025 (anticipated)).
Highlights from the Bureau's Final Guidance
The final version of the Bulletin clarifies a few items from the Draft Bulletin,1 but the substance of the Bulletin was largely unchanged. One notable revision is that the Bureau is more explicit that it may use information gathered from market studies for purposes beyond the market study itself, including for enforcement activities and for Bureau advocacy efforts.
In terms of the contents of the Bulletin, there are a few additional areas worth highlighting:
- Industries of Interest: The Bureau will prioritize sectors that are economically significant, where competitive dynamics do not appear to be adequate, where competition may be limited, where a market study could help the Bureau's enforcement or advocacy efforts (or serve broader government policy objectives), and where a study could lead to meaningful improvements to the Canadian economy.
- Stakeholder Engagement: While the Bureau can now require information be provided, it continues to encourage voluntary cooperation and public input.
- Public Reporting: After completing a study, the Bureau will publish a report with its findings and recommendations, with the hope of influencing future policy or regulatory changes.
Key Takeaways for Businesses
If the Bureau is considering or you believe may be considering a market study in an industry that impacts you or your business, you should do the following:
- Monitor the news and press releases: stay informed of what the Bureau is considering doing.
- Consider proactive government relations: determine whether there is an opportunity to lobby for, or against, the commencement of a particular market study.
- Prepare to comment on any proposed terms of reference: the Bureau is required to publish the proposed terms of reference a market study for public comment — there may be an opportunity to advocate for narrowing – or broadening – certain aspects of a market study.
- Reach out to the Bureau early and try to address requests voluntarily: the Bureau is under no obligation to use the compulsory information-gathering tools. Engage early with the Bureau and see if there is a less burdensome means of addressing the Bureau's concerns. If it appears the Bureau is going to seek court orders, be sure to clearly communicate in writing to the Bureau the legitimate challenges and burdens you may face in obtaining the desired information.
We will continue to provide updates regarding Canada's changing competition law landscape. Additionally, we are ready, willing and able to assist any company that is dealing with a market study or the risk of a market study. Please reach out to McMillan's Competition and Antitrust Team if you have any questions about market studies or the Competition Act more broadly.
Footnotes
1 The minor updates include:
- Being more explicit that the Bureau will consider using its discretionary power to extend the 15-day consultation period for the initial public consultation on the terms of reference of a market study;
- Noting that the Bureau welcomes submissions from anyone with relevant information in response to a market study; and
- Detailing the factors that go into deadlines the Bureau sets for responses to voluntary requests for information the Bureau may issue as part of market studies.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
