Competition Bureau Publishes Draft Anti-Competitive Conduct And Agreements Enforcement Guidelines For Comment

Key Takeaways

While not finalized, the ACCA Guidelines provide valuable insight into how the Bureau will approach its enforcement of the ACCA Sections, including:

• The Bureau now has a more streamlined and singular approach to its review of conduct under the ACCA Sections, with abuse of dominance elevated as the primary provision the Bureau will use to address unilateral conduct
• Confirmation that, in the absence of other factors, the market share threshold for market power under abuse of dominance remains at 50%, or 65% for joint dominance, with the threshold reduced to 30% for all other provisions
• Digital ecosystems and large technology companies are top of mind for the Bureau
• The blending of previously separate guidance may lead to unintended consequences for how the ACCA Guidelines apply to conduct reviewed under the ACCA Sections
• Companies should review and update their current compliance policies to reflect changes in the law and the assessment of potential risks to their business

Overview

On October 31, 2025, the Competition Bureau (Bureau) published for consultation its draft Anti-Competitive Conduct and Agreements Enforcement Guidelines (ACCA Guidelines), addressing how it will approach enforcement under the unilateral conduct provisions (ss. 75-79) and the anti-competitive agreements provision (s. 90.1) of the Competition Act (Act) (ACCA Sections).

The ACCA Guidelines will replace the Bureau's existing Abuse of Dominance Enforcement Guidelines (Abuse Guidelines), the parts of the Competitor Collaboration Guidelines (CCGs) relating to civil conduct, and Price Maintenance Enforcement Guidelines (Price Maintenance Guidelines), and update the Bureau's guidance given significant amendments to the Act between 2022 and 2024. The consultation period will run until January 29, 2026.

While the ACCA Guidelines provide provision-specific guidance, they begin with the Bureau's general approach to market power, anti-competitive conduct and effects, and remedies, seemingly to formalize a common starting point for reviewing conduct that may contravene any of the ACCA Sections. Building on this approach, the ACCA Guidelines identify the Act's abuse of dominance and anti-competitive agreements provisions as the primary civil enforcement provisions, address conduct in digital ecosystems and present a refined approach to market power. While generally consistent with the Bureau's previous guidance, there are notable departures, as discussed below.

Notable Trend – Focus on Technology

The ACCA Guidelines clearly represent an effort by the Bureau to incorporate conduct in digital ecosystems and by large technology companies into its guidance, by, for example:

• Introducing technological links, complementarity and network effects across products as considerations for defining a product market
• Adding access to data as an example of a barrier to entry or expansion
• Including "making products that are not technologically compatible with those from other suppliers" as an example of inducing exclusivity

The Bureau has already expressed a desire to investigate large technology companies, and these updates suggest an interest in pursuing compliance by such companies with the Act.

Market Power

Market power underpins the Bureau's analysis of anti-competitive conduct and agreements. While addressed in existing guidelines with an approach tailored to the specific provision, the ACCA Guidelines significantly expand upon that guidance by:

• Expanding the concept of "exclusion from a market" (for the purposes of indicating market power), to include not just the full removal of existing competitors and deterring competitors from entering or expanding, but also making them less effective
• Treating an ability to exclude, and the effects of the anti-competitive conduct or agreement, as direct (rather than indirect) indicators of market power
• Adding "trade views, strategies and behaviours" as factors used for geographic and product market definition
• Relying upon the views of potential entrants who chose not to enter into a market as evidence of barriers to entry or expansion
• Including measures of use, attention or engagement as acceptable bases for market shares
• Introducing new factors when assessing barriers to entry and expansion, including reputation and learning by doing, among others

Abuse of Dominance (Sections 78, 79)

The ACCA Guidelines represent a refresh of the Bureau's guidance on the abuse of dominance provisions, which were amended three times between 2022 and 2024 to broaden the scope of captured conduct, ease the test for proving abuse of dominance, introduce a private right of access to the Competition Tribunal (Tribunal) and substantially increase administrative monetary penalties (AMPs).

The ACCA Guidelines suggest that despite Parliament allowing for anti-competitive conduct to be penalized even if competition is not harmed, evidence of harm to competition (including lasting impact) remains a determinative factor in the Bureau's decision to investigate dominant firms, and its analysis of anti-competitive effects is largely similar to previous guidance, with elaboration on the concept of "superior competitive performance" to align with case law.

In a notable continuation from the Abuse Guidelines, the ACCA Guidelines continue to indicate that dominance is most likely to be found at 50% market share for a single firm and 65% market share for joint dominance. However, this dominance threshold will not be applied to conduct reviewed under the other ACCA Sections. Moreover, the ACCA Guidelines state that firms are more likely to have market power if their market share exceeds 30%, not 35% as in prior guidance, which is consistent with the Act's presumption of market power at 30% market share with respect to mergers.

The ACCA Guidelines update the types of conduct that could constitute abuse of dominance to include discussion of self-preferencing, contracts that reference rivals, below-cost pricing, excessive and unfair pricing, information sharing, and agreements between competitors. Notably, the self-preferencing discussion addresses issues in digital and platform markets, indicating that relevant factors include whether a firm controls access to a market and the ability to "multi-home." The guidance regarding the recently added excessive and unfair pricing provision blunts the amendment by requiring prices to harm the competitive process, which is only likely to happen if the pricing is used to engage in some other form of anti-competitive conduct.

The ACCA Guidelines also discuss the intersection of ACCA Sections — in particular with respect to abuse of dominance — with other provisions of the Act, notably including deceptive marketing.

Anti-Competitive Agreements (Section 90.1)

The discussion of the revised s.90.1 in the ACCA Guidelines generally aligns with the approach outlined in the CCGs.

One notable difference is the introduction of a rebuttable presumption not found in the Act. Where an agreement has the effect of substantially harming competition, the Bureau will presume that a significant purpose of the agreement is to prevent or lessen competition in a market, in the absence of credible evidence to the contrary.

With respect to the definition of an agreement under s. 90.1, the ACCA Guidelines import a new qualifier, noting that for parties to form an agreement, they must reach consensus regarding their intentions; previously, the CCGs spoke only of a meeting of the minds with no reference to the intentions of the parties.

Refusal to Deal (Section 75)

The ACCA Guidelines generally follow the Bureau's limited guidance on s. 75 and relevant Tribunal decisions.

In one notable exception, the ACCA Guidelines state that the Bureau will often focus on whether a refusal to deal impacts a firm's earnings. However, in Chrysler Canada Ltd. v. Canada, the Tribunal stated that examining the overall sales and profit figures is not sufficient on its own to conclude that the firm has been substantially affected by the refusal to deal.

Because "product" has a different meaning for the purposes of s. 75 than for the other ACCA Sections, the ACCA Guidelines state that the Bureau does not have to define the product dimension of a market for s. 75, and that a product may be narrower than the relevant product market, though a refusal must still have an adverse effect on competition in a market.

Price Maintenance (Section 76)

The ACCA Guidelines do not contain noteworthy differences from the Price Maintenance Guidelines, other than to note that a supplier setting maximum prices may raise concerns if it facilitates coordination among retailers or is used as part of a below-cost pricing strategy by the supplier. One interesting update is the removal of all references to the Tribunal's 2013 decision in The Commissioner of Competition v Visa Canada Corporation and MasterCard International Incorporated, which remains a leading precedent on the Act's price maintenance provisions.

Exclusive Dealing, Tied Selling and Market Restriction (Section 77)

Other than references in the Abuse Guidelines, the Bureau has not previously released dedicated guidance for conduct captured by s. 77. The ACCA Guidelines indicate that any conduct caught under s. 77 may be addressed under the abuse of dominance regime, and certain conduct (specifically, exclusive dealing, tying, and bundling) may also be addressed under the anti-competitive agreements regime.

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