Competition Bureau Releases Draft Anti-Competitive Conduct And Agreements Guidelines

On October 31, 2025, the Competition Bureau ("Bureau") released draft Anti-Competitive Conduct and Agreements Enforcement Guidelines ("Draft Guidelines"), a much-anticipated update to Bureau guidance following significant amendments to the Competition Act (the "Act") between 2022-2025. The Draft Guidelines will replace the Bureau's existing Abuse of Dominance Enforcement Guidelines, sections of the Competitor Collaboration Guidelines relating to civil competitor collaborations, and Price Maintenance Guidelines. Interested parties are invited to provide feedback until January 29, 2026. While the final guidelines will be published after public consultation, the Bureau advises using the Draft Guidelines in the interim to understand its enforcement of the Act's anti-competitive conduct and agreement provisions.

Overall, the Draft Guidelines appear more consumer-facing than past guidance, with detailed introductory sections walking through Bureau and Competition Tribunal ("Tribunal") powers and a general framework for how anti-competitive conduct and agreements can harm the competitive process.

The Draft Guidelines first cover the Bureau's approach to assessing market power – a central element in its analysis of anti-competitive conduct and agreements – which remains largely unchanged post-amendments. Indeed, the Bureau's assessment of market power accounts for both direct indicators of market power, such as supra-competitive prices/profits and influence over the competitive process, as well as indirect indicators of market power, including market shares and concentration levels, the likelihood of entry or expansion, and negotiating leverage.

The Draft Guidelines then address the Bureau's analysis of anti-competitive effects. The Bureau acknowledges that the provisions under Part VIII of the Act impose different legal tests for competitive effects; sections 77, 79 and 90.1 of the Act include a test for a substantial lessening or prevention of competition, whereas sections 75 and 76 of the Act include a test for an adverse effect on competition. Regardless of the competitive effects threshold, however, the Bureau will consider the same set of factors – the degree of the effect, its duration and scope.

The Bureau also describes the various remedies it may seek for a violation of any provision under Part VIII of the Act, including Tribunal orders stopping the conduct or an agreement; other orders to restore competition, such as changing contractual terms or selling assets or shares; and administrative monetary penalties ("AMPs"). Among other things, the Bureau notes that the purpose of AMPs is "to promote practices by the firm who has engaged in the anti-competitive conduct or agreement that conform with the purposes of either of those two sections of the Act. It is not to punish them." Noticeably missing from the Draft Guidelines, however, is how the Bureau determines or calculates the "benefit derived from the anti-competitive conduct or agreement."

The remainder of the Draft Guidelines break down the following types of conduct and what provisions of the Act may apply: exclusive dealing; tying and bundling; refusals to supply; self-preferencing; input pre-emption; contracts that reference rivals; market restriction; price maintenance; below-cost pricing; margin squeezing; excessive and unfair pricing; information sharing; disciplinary conduct; agreements between competitors; and acquisitions. Below we highlight key takeaways from the Draft Guidelines, including the Bureau's interpretation of newly-amended provisions.

Takeaway 1: Abuse of Dominance & Excessive Pricing

Amendments to the Act in 2024 reduced the elements needed to establish abuse of dominance and expanded the scope of potentially abusive behaviour, both through revisions to the substantive test for establishing abuse of dominance and the explicit inclusion of excessive pricing – a form of exploitative conduct – as an anti-competitive act. The need to prove both anti-competitive intent and effect has been removed, such that the Tribunal can now make a behavioural order (but not impose AMPs) where the applicant shows that a dominant firm (which is defined in the same way as under the prior legislation) has engaged in either:

• A practice of anti-competitive acts (which requires proving anti-competitive intent); or
• Conduct that has or is likely to substantially lessen or prevent competition in any market where the dominant firm has a plausible competitive interest, provided that such anti-competitive effect is not the result of "superior competitive performance".

The Draft Guidelines confirm that the concept of "conduct" under the updated abuse of dominance test is intentionally broad. It includes any behaviour – whether isolated or repeated – that meets the abuse of dominance test elements, encompassing all forms and combinations of conduct and agreements discussed in the Draft Guidelines.

Separately, the Draft Guidelines define "superior competitive performance" as a firm outcompeting its rivals. While this definition is not detailed, the Draft Guidelines do add that the reference to "superior competitive performance" does not allow firms to justify conduct that has the effect of harming competition by claiming that it has or will improve their competitive performance. This reference relates to the cause of the harm to competition and not to the goal or result of the conduct. The Draft Guidelines also detail that the abuse of dominance provisions apply even when a dominant firm targets less efficient rivals, not just those equally or more efficient. Conduct that may resemble competitive success, like below-cost pricing, can still be abusive if it is not driven by genuine cost advantages but instead intended to exclude competitors unfairly. Dominant firms are not permitted to avoid competition through anti-competitive tactics, regardless of their efficiency.

The 2024 amendments to the Act expanded the list of anti-competitive acts in section 78 to explicitly include "directly or indirectly imposing excessive and unfair selling prices." The Draft Guidelines clarify that excessive and unfair pricing is likely to raise issues only if it is used to engage in other types of anti-competitive conduct or agreements. Hence, charging high prices to buyers in and of itself would not typically raise issues under the Act. The Bureau will focus on the anti-competitive conduct or agreement that enables a firm to charge excessive prices, rather than the high prices themselves. It will only investigate excessive and unfair pricing under the abuse of dominance provisions if there's a credible theory of harm – typically, when pricing is used to facilitate other anti-competitive practices like bundling, margin squeezes, or constructive refusals to deal.

Moreover, the Draft Guidelines maintain the use of market share thresholds to assess potential abuse of dominance, generally investigating further when a single firm holds 50% or more of the market, or when a group of firms jointly holds 65% or more.

Takeaway 2: The Bureau's Assessment of Vertical Agreements

As detailed in our prior bulletin, Bill C-56 substantially increased the scope of the Act's civil competitor collaborations provision in section 90.1. Most notably, the revised provision, which came into effect in December 2024, now captures any agreement, regardless of the competitive relationship between the parties, for which "a significant purpose" is to "prevent or lessen competition in any market." What constitutes a "significant purpose" is, at best, an ambiguous concept. Moreover, the amended provision relies on a different competitive effects standard than exists elsewhere in the Act. Whereas the typical standard is to "prevent or lessen competition substantially in any market", section 90.1 requires that "significant purpose" of a vertical agreement must be to "prevent or lessen competition in any market", thereby eliminating the substantiality threshold. Absent any definitions or guidance from the Bureau or Federal Courts, the provision introduced significant uncertainty for businesses operating in Canada.

The Draft Guidelines provide some needed clarity on the Bureau's approach to these new provisions. Although the Draft Guidelines acknowledge that the Act imposes different legal tests for agreements between competitors and agreements between non-competitors, the Bureau's assessment of horizontal and vertical agreements is practically indistinguishable. In particular:

• According to the Draft Guidelines – when reviewing agreements that do not involve competitors – the Bureau will focus on whether the agreement has the effect of harming competition. In its view, where an agreement has the effect of substantially harming competition, the Bureau will "presume it has a significant purpose to prevent or lessen competition in a market in the absence of credible evidence to the contrary."
• As for the assessment of the competitive effects resulting from a vertical agreement, the Draft Guidelines simply provide that "section 90.1 of the Act include[s] a test for a substantial lessening or prevention of competition." As a result, the same competitive effects assessment applies to both horizontal and vertical agreements.

Takeaway 3: The Bureau's Enforcement Scope

Throughout the Draft Guidelines, the Bureau acknowledges that several forms of conduct described in Part VIII of the Act may be pro-competitive and not require any intervention from the Bureau. The Draft Guidelines helpfully identify when the Bureau will likely seek remedies for certain conduct. For instance:

• Refusal to supply: The Bureau recognizes that firms are free to choose who to sell to and refusal to supply can be "a core part of the competitive process" where firms are developing new facilities, products, or innovation. Hence, the Bureau will only take action where: (i) the product that is being refused is competitively significant, such as a key input to compete in a market and (ii) the product cannot be reasonably obtained in other ways, for example from other suppliers or through self-supply. According to the Draft Guidelines, the Bureau is "more likely to take action if the firm or firms being refused supply would be competitively significant, in addition to any other purchaser" and "less likely to take action if the product has not been supplied to anyone outside the firm refusing supply."
• Self-preferencing: Self-preferencing occurs when a firm gives favourable treatment to its own products, or other products that advantage it in some way. The Bureau is more likely to intervene when self-preferencing is done by a firm that controls access to a market.
• Margin squeezing: A vertically integrated firm both supplies rivals and competes with them downstream. This can give the vertically integrated firm the ability to "squeeze" its rival's profit margins. In determining whether to take any enforcement action, the Bureau will consider whether the vertically-integrated firm could profitably operate downstream on the margin between the price at which it supplies competitors and its own downstream prices. If so, the Bureau is more likely to intervene.

Conclusions

Overall, the Draft Guidelines signal a unified enforcement and conduct-based approach by the Bureau to anti-competitive conduct and agreements, reinforcing the Bureau's intent to assess potentially harmful conduct under multiple provisions of the Act where appropriate. This shift in guidance increases the importance of early legal risk assessment and compliance planning, even for conduct that may have previously seemed low-risk under older guidelines. This is also in step with the recent amendments to the Act, which significantly broadened the range of conduct that may attract scrutiny and opened up private enforcement under the Act. As a result, businesses face heightened exposure to both public and private enforcement, underscoring the need for proactive reassessment of existing agreements and internal compliance protocols.

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