Kalibrating A Consent Agreement: Competition Bureau Resolves Case Involving Gas Station Information Sharing

On September 23, 2026, the Canadian Competition Bureau announced that it had reached a Consent Agreement with Kalibrate Canada Inc. to resolve the Bureau’s investigation into possible anticompetitive activities by Kalibrate. Specifically, the settlement addresses the Bureau’s concerns with one of Kalibrate’s data analytics products, Kalibrate Market Intelligence (“KMI”), also known as “Kent Data”. The Bureau found that KMI provided competitively sensitive information to competing gasoline retailers, including in providing particular price and volume information on a station-by-station basis, which the Bureau determined constituted an abuse of dominance. In the settlement agreement with the Bureau, which has a 10-year term, Kalibrate agreed to refrain from providing competitively sensitive information about individual gasoline retailer stations in its KMI product.

Big Picture Issues

Beyond the specifics of the case, the results of the Kalibrate inquiry provide interesting insight into a number of issues of general importance, including:

• The Bureau’s approach to the newly restructured Abuse of Dominance provisions, which can now support a prohibition order against dominant firms if the conduct either is intended to have anti-competitive effects or is likely to result in a substantial prevention or lessening of competition.
• The Bureau’s views with regard to pricing mechanisms, including algorithmic and third-party price recommendations.
• Issues relating to the sharing of confidential information.

In addition to these three substantive issues, the Kalibrate case is also an illustration of how Bureau investigations can take on a life of their own. The inquiry started with a focus not on Kalibrate’s KMI product, but rather an entirely different product – Kalibrate Fuel Pricing (“KPR”), which is a tool by which Kalbrate recommends pricing strategies to retailers. The Bureau ultimately concluded that KPR did not raise issues, but that KMI did.

Background on the Bureau’s Investigation into Kalibrate

As noted, when the Bureau began investigating Kalibrate in February 2024, its primary focus was on the KPR product, an algorithmic pricing service tailored for fuel retailers, which we wrote about here. However, as part of that investigation, the Bureau also analyzed KMI, a platform that provided detailed information (including sales volumes and spot prices) for specific gasoline retail locations. Ultimately, the Bureau chose to close its investigation into KPR, but sought and obtained a Consent Agreement related to the KMI product.

In particular, Kalibrate agreed that, for the next 10 years its KMI product will not provide volume or pricing information for single stations, but only aggregate market data, and only when there are six or more stations in a market. It will not provide information for periods shorter than a month and it will not provide information to users until at least 10 business days have passed following the end of the relevant time period.

Issues of Interest

A. The Bureau’s Use of the Restructured Abuse of Dominance Provision

The Bureau’s news release highlights that this is the first time a consent agreement has been reached in a case founded on the restructured test for abuse of dominance. As we have discussed previously, the test for abuse of dominance was updated in 2023 to make it easier to obtain a finding of abuse. Previously, the abuse of dominance test contained three required elements: dominance, anti-competitive intent, and anti-competitive effects. However, the amendments lowered this standard for the purpose of obtaining an order for a person to enjoin abusive conduct, such that abuse of dominance only requires dominance and one of:

1. A practice of anti-competitive acts, or
2. Conduct that has harmed or is likely to substantially harm competition in a market where the business has a competitive interest and is not the result of superior competitive performance.¹

While the Kalibrate Consent Agreement does not make it clear whether the Bureau was relying on the first branch (anti-competitive acts with anti-competitive intent) or second branch (substantial harm to competition), the Bureau’s accompanying position statement indicates, somewhat confusingly, that the Bureau relied on the branch that requires a practice of anti-competitive acts, although it is not clear how the KMI product could be seen to involve anti-competitive intent by Kalibrate. The position statement adds that “no conclusion has been reached under section 79(1)(b) [(that is, the branch requiring substantial harm to competition)] at the time the consent agreement was entered into, [but] the potential for harm in retail gas markets supports this streamlined approach to achieve a timely and effective resolution.”

This example of the use of the restructured abuse of dominance provisions is a reminder that enjoining conduct that the Bureau believes may be injuring competition has become easier to achieve under the recent Competition Act amendments.

B. Implications for Information Sharing

The Bureau’s press release indicates that it concluded that the information sharing afforded by KMI, through offering visibility into competitors’ activities, “can weaken competition between gas stations”. The Bureau added that when “retailers have access to detailed information about their competitors’ operations and performance, it makes it easier for them to monitor their competitors’ actions” — the Bureau found that such information sharing increases the likelihood that competitors will compete less aggressively or coordinate behaviour, which can lead to higher gas prices. Moreover, in its accompanying position statement, the Bureau emphasizes that:

Sharing competitively sensitive information can harm the competitive process. Competitors that gain access to detailed information regarding one another’s prices, sales volumes, capacity, costs, or business strategies may find it easier to identify opportunities for coordination or to detect deviations from coordinated behaviour. As a result, information sharing can reduce firms’ incentives to compete aggressively and may soften competitive rivalry.

As we noted in one of our bulletins on the Bureau’s proposed Anti-competitive Conduct and Agreements guidelines, those draft guidelines expanded the Bureau’s approach to challenging information sharing as either abuses of dominance or as anti-competitive agreements.

In this case, the specific information that concerned the Bureau was detailed information regarding individual stations’ prices and, sales volumes (including station-level grade-specific sales volumes and spot prices). The Bureau concluded that sharing the information increased transparency, predictability and the risk of coordination between competitors. Specifically, the Bureau concluded that KMI “made predicting competitors’ actions easier and increased the risk of coordination”, and the Bureau found that retailers could more easily “monitor market developments, understand competitors’ responses to pricing decisions, and assess changes in competitive behaviour”.

In its position statement, the Bureau advises companies to consider their current practices involving information sharing, including data sharing, benchmarking services, market intelligence products, trade associations and other third-party intermediaries, noting that concerns can arise when competitors received detailed information regarding each other’s “prices, sales, capacity, costs, strategies, or other competitively sensitive information”. The Bureau notes that current and firm-specific information is more likely to raise competition concerns as compared to aggregated and anonymized information that is provided with an adequate time lag.

C. Pricing Advice/Algorithmic Pricing

According to Kalibrate, KPR – its algorithmic pricing product – uses “patented machine learning models [to] optimize fuel prices in line with [customers’] goals”. KPR is used for analysis, pricing support, automation, and price recommendations. Its proprietary algorithms can make fuel pricing recommendations based on a station’s strategy and data, or make automated price changes based on a station’s preferred pricing choices. As the Bureau concluded in its investigation, KPR’s decisions are based solely on the data provided to it by each station. KPR does not employ competitively sensitive information relating to competitors with its users.

The fact that KPR triggered the Bureau’s investigation reflects its increasing scrutiny of algorithmic pricing. In June 2025, the Bureau published a Discussion Paper on algorithmic pricing, and in November 2025 it concluded an investigation into the use of algorithmic pricing in the rental housing market. Notably, the Bureau has yet to conclude that an algorithmic pricing product has enabled anti-competitive behaviour. As in the Kalibrate investigation, it is likely that pricing algorithms’ information sources will continue to be a key factor in future Bureau investigations into algorithmic pricing and related products. On the evidence of the Kalibrate case, however, it is at least clear that pricing recommendations or algorithms not using competitor confidential information are considerably safer, from a Competition Act perspective, than those which do.

Takeaways

1. In the right type of cases, the Bureau is willing to use the new abuse of dominance provisions to stop conduct it sees as harming competition, even if it is not in a position to prove all three traditional elements of abuse of dominance or obtain additional remedies;
2. While the Bureau continues to investigate algorithmic pricing conduct, it has yet to conclude that such conduct by any specific parties violates the Competition Act. Nevertheless, particular care needs to be taken if confidential competitor information is used.
3. Firms should be aware that the Bureau is growing increasingly concerned with sharing of competitively sensitive information, and may be willing to use the civil provisions to challenge information sharing conduct it sees as harmful. In addition to the civil provisions, information sharing may be seen as an aspect of criminal price fixing, so the risks may be significant.

Footnote

1 All three elements are still required to obtain additional remedies, including administrative monetary penalties and monetary compensation for private party plaintiffs, as well as possible divestitures.