Significant amendments to the Competition Act1 came into force on June 20, 2025, broadening the categories of conduct for which a private actor may apply to the Competition Tribunal while also introducing monetary awards as a new remedy. These changes are poised to reshape competition litigation strategy for parties that traditionally have relied on the Competition Bureau or civil causes of action before the courts.
Historic Enforcement of the Competition Act
Anticompetitive conduct in Canada has primarily been addressed through public enforcement, rather than private litigation. The Act regulates anti-competitive conduct through both criminal offences (such as conspiracy, bid-rigging and materially false or misleading representations) and civilly reviewable practices (such as abuse of dominance, anti-competitive agreements, and deceptive marketing practices).
Private parties suffering loss or damage because of a breach of a criminal provision can pursue a private statutory cause of action. Private litigants have also resorted to common law claims available based on torts such as conspiracy and misrepresentation. Combined with the introduction of class proceedings legislation three decades ago, competition class actions have become common in Canada. The result is that competition-related class action jurisprudence is now well-developed, particularly in the context of civil cartel cases.2
Antitrust Amendments Become a Government Priority
The Competition Act has undergone three rounds of major amendments since 2022.3 The first round permitted private parties to bring Tribunal applications in relation to the abuse of dominance provisions found in section 79 of the Competition Act. This amendment was recently considered in the Tribunal's decision in JAMP Pharma Corporation v Janssen Inc, which is considered in detail here.4
Among other things, the second round of changes amended the law regarding civilly reviewable agreements to include non-horizontal agreements where a significant purpose of the agreement is to reduce competition.
The Present Changes – Liberalized Leave Test, Expanded Claims and New Monetary Award Remedy
The third round of changes were contained in Bill C-59, which received royal assent on June 20, 2024. The changes came into force one-year later on June 20, 2025.
Expanded Claims Are Now Available to Private Parties
The types of conduct that private parties can challenge at the Tribunal has been expanded. Private parties may now seek leave to bring a proceeding with respect to anti-competitive agreements arising under section 90.1 of the Act and civil misleading advertising provisions of the Act arising under section 74.01 of the Act.5 As a result, a private party can now seek leave to pursue a private access application under the following sections:
- Deceptive marketing practices (74.1)
- Refusal to deal (75)
- Price maintenance (76)
- Exclusive dealing, tied selling and market restriction (77)
- Abuse of dominant position (79)
- Agreements that harm competition (90.1)
The reviewable practices provisions require consideration of anti-competitive effects of the alleged conduct, while the criminal offences and deceptive marketing practices prohibit certain conduct regardless of whether it caused any anti-competitive effects. While the Bureau has investigative powers to obtain information and assess anti-competitive effects on a market-wide basis, a private applicant can obtain information through discovery of the respondent after obtaining leave to bring a proceeding. A private applicant would need to seek subpoenas from the Tribunal to obtain other information from third parties.
A Broader Leave Test Expands the Tribunal's Jurisdiction
The Tribunal now has authority to grant leave for the commencement of proceedings on additional grounds. The revised test offers two alternate pathways to obtain leave from the Tribunal, being when:
- An applicant is directly and substantially affected in the whole or a part of its business by the impugned conduct; or
- It is in the public interest to grant leave.
Previously an applicant seeking leave from the Tribunal was required to show direct and substantial impact on its business. This was interpreted to mean an impact on the whole of the business.6 That requirement has now been modified to permit the seeking of leave to proceed at the Tribunal when the impugned conduct directly and substantially affects "part of" a business. This leave test may result in firms with multi-line businesses seeking leave even if only a single segment of their business is substantially affected.
For certain impugned conduct, such as deceptive marketing, private parties obtaining leave may only obtain leave under the public interest test. The introduction of a public interest ground may open the door to applications by parties who are not directly harmed but can show that granting leave would advance the goals of the Act. The purpose of the Act is:
to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.7
Establishing when the Tribunal should grant leave and take carriage over a private party dispute is likely to prove complicated. An important question that will need to be determined is whether competitors, as well as customers that operate businesses, will be able to use the public interest branch of the leave test as an alternative to their business impact branch, or whether the public interest branch will only be available to other types of applicants. Court cases involving public interest standing before the courts (which have broad jurisdiction) have made their way to the Supreme Court of Canada twice in the past fifteen years.8 Meanwhile, other regulatory tribunals forced to grapple with public interest standing-related tests have developed significant jurisprudence to determine when such intervention is appropriate.9 Those approaches have focused on the purpose of related legislation and have not adopted an open-ended approach of which parties may appear.
Monetary Awards Now Available
The expanded claims which may be advanced by private parties and broader grounds upon which the Tribunal may grant leave are buttressed by a new remedy available from the Tribunal.
Private parties could historically seek leave to pursue a proceeding based on a breach of the reviewable practice provisions, but had no path to monetary recovery. Prohibition orders are the primary remedy under these provisions, with additional mandatory orders also being available when necessary to restore competition. With the recent amendments, the Tribunal may also order payment of "an amount, 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, in any manner that the Tribunal considers appropriate".
The evidentiary burden for calculating "benefit derived" will require interpretation. Use of the phrase is sparse in Canadian federal legislation. Discrete uses of the phrase in provincial statutes generally refer to the "benefit derived" as a consideration in establishing an appropriate penalty rather than a cap.10 Other regulatory models for public interest financial remedies, such as that found in Ontario's Securities Act, describe the specific concept of disgorgement, as "amounts obtained as a result of non-compliance"11 with the law rather than referring to the "benefit derived".
Any use of the new remedy as a broad distribution scheme to affected parties other than the applicant will raise critical questions about procedure, fairness, and implementation—especially regarding the distribution of funds to non-parties. There is uncertainty regarding whether the distribution of a monetary remedy to "any other person affected by the conduct" permits the distribution of funds across large groups of firms or individuals that are not individually identified. Entire statutory regimes govern class proceedings dealt with by the courts, and related machinery is notably absent from the amendments to the Act. Questions about settlement approvals, notifications to proposed recipients of a monetary award, appropriate releases for defendants and treatment of counsel fees are just some issues that will need to be addressed should the Tribunal elect to interpret the new provisions in a fashion that could be applied to a "class" of recipients.
What Comes Next?
Practically, it is unknown whether these changes will result in significant litigation or a drastic change to competition litigation before the Tribunal. We expect it will evolve as the standards are settled and tested over a period of time.
The Competition Bureau will have to adjust as well. On June 20, 2025, the Bureau released a bulletin setting out the Bureau's views on private access under the Act.12 The bulletin primarily addresses the Bureau's own views about its role when private parties are applying for leave, when the Tribunal is hearing an application, and after the application is resolved. The Tribunal will not hear any private access applications regarding matters that are already the subject of an ongoing or settled Bureau investigation. Increased private proceedings are likely to impact investigations and enforcement priorities of the Bureau, which will know that certain matters may be advanced by private parties if the Bureau does not take action. The Bureau can also intervene in the leave application and/or private proceedings after leave is granted.13 The Bureau has indicated that it will assess whether it is in the public interest to do so, including considerations of economic impact, legal impact and differing perspectives.
At least some of these details will be resolved out of necessity. In our commentary regarding the JAMP v Janssen decision, we identified a possible justification for a rigorous preliminary scrutiny of a leave application as the Tribunal wishing to avoid a volume of strategic litigation. We expect that many of the unknowns identified above will be resolved based on a proper interpretation of the purpose of the Act, fairness to the parties and accounting for the administrative resources available to the Tribunal.
Footnotes
1 Competition Act, R.S.C. 1985, c. C-34 (the "Act").
2 A more detailed explanation of the Canadian regime is available in McMillan's paper: Certifiable: What's the Test Where? The Canadian Experience in Certifying Competition Class Actions.
3 See McMillan's prior bulletins discussing these amendments: Significant Changes Coming to Canada's Competition Act (May 3, 2022); Competition Act Amendments Introduce New Criminal Offence Against Wage Fixing and No Poach Agreements (May 3, 2022); Round One of Competition Act Amendments Passed; National Security Review Regime Amended (June 27, 2022); Competition Act Amendments on a Rocket Docket (September 26, 2023); Transformative Change: Your Guide to Canada's Breathtaking Competition Act Changes (December 5, 2023); Competition Act Amendments Proceed at Pace (December 27, 2023); Storm Clouds Looming the Impact of Competition Act Changes on Leasing (March 4, 2024); Ready for Change? Bill C-59 Rewrites the Competition Playbook (June 21, 2024); Changes to the Competition Act: What Merging Parties Need to Know (July 23, 2024) and What's New in the FAQs: Recent Competition Bureau Guidance on the Amendments to Canada's Competition Act (December 3, 2024).
4 Private Competition Tribunal Challenges to Abuse of Dominance: A JAMPing Off Point (March 27, 2025).
5 Private parties are already permitted to seek leave regarding proceedings based on refusal to deal, price maintenance, exclusive dealing, tied selling, market restriction, and abuse of dominance.
6 See e.g. Sears Canada Inc. v. Parfums Christian Dior Canada Inc., 2007 CACT 6 at para. 21.
7 Competition Act, R.S.C. 1985, c. C-34, section 1.1
8 Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45; British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27
9 For in-depth discussion of the many years devoted to this issue in the capital markets space, see Justifiable Expectations Standard: The Basis for the Exercise of the Public Interest Power of the Ontario Securities Commission (August 22, 2014)
10 See e.g. Administrative Penalties (Environmental Assessment Act) Regulation, BC Reg 64/2020, s. 2(1); Forest and Range Practices Act, SBC 2002, c 69, s. 74.
11 Securities Act, RSO 1990, c. S.5, s. 127(1)(10).
12 Competition Bureau Canada, Bulletin on Private Access to the Competition Tribunal (June 20, 2025)
13 See e.g. Janssen Inc. v. Jamp Pharma Corporation, 2024 FC 816
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
