New private rights of action under the Competition Act (the "Act") came into force on June 20, 2025. These new private rights of action are expected to lead to robust private litigation before Canada's Competition Tribunal (the "Tribunal").
This blog post summarizes the expanded scope of conduct potentially subject to private rights of action. It also outlines the new leave test that must be satisfied by private parties wanting to bring a private action before the Tribunal, the private monetary relief that can be awarded by the Tribunal and the potential form of a collective/class action regime that has been put in place. Finally, it identifies the salient takeaways for business.
- Expanded Scope of Conduct Captured Recent
amendments to the Act – namely, Bills C-19, C-56 and C-59 – have expanded the number of
provisions under which private parties can seek leave to bring
applications before the Tribunal. In this regard, Bill C-19
initially extended private rights of access to section 79 (abuse of
dominance), and Bill C-59 further extended private rights of access
to section 74.1 (deceptive marketing) and section 90.1 (civil
competitor collaboration) of the Act. Before the passage of these
bills, private rights of access were only available with respect to
sections 75 (refusal to deal), 76 (price maintenance) and 77
(exclusive dealing, tied selling and market restriction). Perhaps
the most significant types of conduct captured are: (i) abuse of
dominance, (ii) the civil competitor collaboration provisions,
(iii) greenwashing and (iv) the new "right to repair"
within the existing refusal to deal provision, all of which are
summarized below.
- Abuse of Dominance: The new abuse of dominance provision requires a party to show that a "dominant" entity has engaged in either a practice of anti-competitive acts or conduct, other than superior competitive performance, that has had, is having or is likely to have the effect of preventing or lessening competition substantially in a relevant market. This is in contrast to the prior version of the abuse of dominance provision, which required demonstrating both anti-competitive intent and effects. However, both anti-competitive intent and effects need to be demonstrated for monetary relief to be awarded.
- Competitor Collaborations: This provision not only captures collaborations between competitors or potential competitors, but also collaborations among parties that are not competitors, to the extent that a "significant purpose" of the collaboration is anti-competitive. However, the amendments do not elaborate on when an anti-competitive purpose would be considered "significant". As such, the competitor collaboration provision may apply to essentially any commercial agreement, including agreements with customers and suppliers.
- Greenwashing: These are stand-alone greenwashing prohibitions intended to address unsubstantiated environmental claims, whether relating to "a product's benefits for protecting or restoring the environment or mitigating the environmental, social and ecological causes or effects of climate change" or "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". A person making an environmental claim must ensure that the claim is supported by "an adequate and proper test" or "adequate and proper substantiation in accordance with internationally recognized methodology", the burden of proof of which rests on the claimant.
- Refusal to Deal (and Right to Repair): The amendments make several changes to the refusal to deal provision of the Act. First, they amend this provision to include the supply of the means of diagnosis or repair, creating the ability for a person to compel a company to provide the means of diagnosis or repair in certain cases. Second, they change the requirement for a person to be substantially affected in its entire business to a requirement that a person be substantially affected in the whole or part of its business. So-called "right to repair" laws, which seek to ensure that consumers can have devices serviced or repaired by independent firms (i.e., firms other than the original manufacturer), already exist in other jurisdictions.
- Leave Test In order for private parties to bring a private right of action before the Tribunal, they must first apply for and obtain leave (i.e., permission) of the Tribunal. Bill C-59 lowers the threshold of the test that private parties are required to meet in order to bring a private action before the Tribunal, other than the test applicable to section 76 (price maintenance) of the Act, which remains unchanged. Historically, the Tribunal could grant leave to bring an application under sections 75 and 77 of the Act if it had reason to believe that the applicant was directly and substantially affected with respect to the entirety of its business. Going forward, the new leave test, which applies to sections 75, 77, 79 and 90.1 of the Act, provides that the applicant need only be directly and substantially affected with respect to part of its business. This change is notable because, in the past, many leave applications were unsuccessful due to applicants' inability to prove they were substantially affected with respect to their entire businesses. Additionally, Bill C-59 introduces a second potential leave mechanism for these provisions, which applies where the Tribunal is satisfied that it is in the public interest to grant leave to an applicant. Similarly, Bill C-59 permits the Tribunal to grant leave to bring a private application under section 74.1 of the Act where the Tribunal is satisfied that it is in the public interest to do so. While the scope of public interest is currently unknown, a public interest test could open the door to representative-style proceedings and public interest litigants.
- Private Monetary Relief Bill C-59 creates the ability for applicants to receive monetary relief in connection with successful applications brought under sections 75, 76, 77, 79 or 90.1 and the deceptive marketing provisions of the Act. In the case of successful applications under these sections of the Act, the Tribunal can order that the person against whom the order is made pay "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, the manner that the Tribunal considers appropriate". With this choice of language, the monetary amount that an applicant may seek is not damages. However, it seems to resemble a form of disgorgement, the quantification of which can be significant in many circumstances. Further, for Part VII.1 (deceptive marketing practices), where representations to the public are found to be materially false or misleading, an applicant can seek "an amount, not exceeding the total of the amounts paid to the [advertiser] for the products in respect of which the conduct was engaged in, to be distributed among the persons to whom the products were sold... in any manner that the court considers appropriate". This choice of language (which is already contained in the Act but now applies to private parties) is akin to restitution.
- A Form of a Collective or Class Action Regime Bill C-59 includes two amendments that suggest the creation of a form of a collective or class action regime before the Tribunal. First, the inclusion of the phrase "be distributed among the applicant and any other persons affected by the practice, in any manner that the Tribunal considers appropriate" suggests a broad discretion for the Tribunal to order monetary relief to a large group of persons (businesses and individuals) affected by the alleged conduct. Second, Bill C-59 expressly gives the Tribunal the power to establish a payment, claims and notice process akin to the powers of courts in a class action context. These powers include "specifying how the payment is to be administered", "the appointment of an administrator to administer the payment and specifying the terms of administration", "requiring that potential claimants be notified in the time and manner specified by the Tribunal", "specifying the time and manner for making claims" and "specifying the conditions for the eligibility of claimants". Collectively, these features appear to give the Tribunal the power to order the payment of monetary relief to a significant group of affected persons and to manage the related notice, payment and claims process. This change effectively creates a form of a class action regime, though it differs from the existing class action regime in the civil courts. Significantly, Bill C-59 does not create a certification process, which has historically served as a procedural screening mechanism where a court decides, at an early stage, whether a class action is the appropriate procedural mechanism to advance an action. However, the leave requirement may provide an opportunity to screen claims that should be disposed of at an early stage – although this remains to be seen in light of the significantly lowered leave test threshold.
- Takeaways for Business
Traditionally, and with respect to civil matters, competition risk in Canada has arisen from public enforcement by the Competition Bureau without meaningful private risk. However, the amendments change this, as they will likely create significant private litigation risk for a wide array of business conduct, ranging from vertical arrangements and horizontal collaborations to physical and non-physical repair restrictions and advertising and marketing. Given this risk, it is important that businesses implement or update their competition law compliance policies and processes accordingly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
