Driving Forward: Key Takeaways From The 16th Anniversary Edition Of McCarthy Tétrault's Annual Retail And Consumer Markets Summit

On February 24, 2026, McCarthy Tétrault hosted our 16^th annual Retail and Consumer Markets Summit. The program addressed some of the most critical issues affecting the retail and consumer markets space today - from tariffs and trade strategy, to Quebec French language requirements, agentic AI, and incident readiness. This publication highlights some of the insights shared by our speakers.

Stop 1: Tariff and Trade: International Trade and Supply Chain Update

Martha Harrison and Awanish Sinha of McCarthy Tétrault LLP opened the Summit with a timely discussion on tariffs, geopolitics, and supply‑chain strategy in an increasingly volatile trade environment. Their position was clear: in dynamic times, normalcy bias is a danger to success. Governance and decision-making processes are evolving to acknowledge that in the near term, rapid changes in law and policy, or chaotic geopolitical events, are the rule, not the exception. Looking ahead, pivoting quickly between priorities or processes will be key to success.

Exploring Trade Opportunities Between Middle Powers

From a geopolitical perspective, Martha and Awi highlighted the doctrine introduced by Prime Minister Mark Carney in his widely cited Davos speech, which advanced the idea of middle powers aligning to pursue pragmatic solutions for economic resilience. Martha noted that working with this “middle powers” lens offers Canadian retailers and consumer products businesses opportunities for increasing trade. We are already beginning to see this in practice in relationships that Canada is forging with Europe, the Gulf States, and Asia. Some Canadian retailers and consumer goods businesses with U.S. parent companies have pivoted to sourcing their materials from abroad to avoid being hit with tariffs.

Supreme Court Ruling on Tariffs

Martha and Awi also referenced the impacts on Canadian businesses of the U.S. Supreme Court's decision striking down the “Liberation Day” tariffs, noting that the decision turned on the president's authority to impose tariffs by executive order, rather than dissecting whether or not there was any validity to the notion of a fentanyl or other crisis at the northern border. They noted that, for businesses seeking to recover tariffs that have already been paid, recovery will likely not be automatic – businesses will need to fight to be repaid through litigation. Some businesses have already begun suing the U.S. government to get in line as first receivers; however litigation to recover these tariffs will be costly, such that larger players with more resources to spend on the litigation and more to recover, are most likely to succeed in tariff recouperation. It remains to be seen what practical impact the case will have on the administration's conduct moving forward.

Juggling Priorities - ESG and Trade Diversification

The regulatory landscape of the retail and consumer goods industry has experienced what feels like a shift on ESG issues as businesses scrambled to re-order priorities and diversify in light of ongoing tariff uncertainty. Martha cautioned against dismantling ESG initiatives, policies, and diligence frameworks, whose importance with re-emerge as regulatory priorities normalize.

Stop 2: Practical considerations from a business perspective – what I wish I knew before my first class action

Chris Hubbard of McCarthy Tétrault was joined by Les Chaiet, General Counsel and Business Integrity Officer, Canada of Unilever and Mona Shah, Vice President & General Counsel of Kellanova North America for a candid discussion on managing class actions and crisis events from a business perspective. Some points from the discussion included:

Know Your Business and Your People Before a Crisis Hits

Understanding internal decision‑makers, risk tolerance, and escalation paths is essential when time is limited and pressure is high.

Line Up Trusted Experts in Advance

Food safety, health and safety, cybersecurity, insurance, and communications experts should be identified ahead of time, not sourced mid‑crisis.

Build and Refresh Incident Protocols

Effective protocols are evergreen and should clearly define escalation triggers, roles, and responsibilities.

Protect Privilege and Control Communications

Staying calm, managing information flow, and coordinating closely with communications teams are critical. Legal timelines often intersect with media cycles – for example, launching a major marketing campaign on the eve of a court appearance can create unnecessary reputational risk. Reminding the business of how to treat information to maintain privilege throughout the process is crucial.

Think Globally, Even When the Issue is Local

Actions taken by a Canadian subsidiary in response to a local issue can have significant implications for parents outside of Canada, global suppliers, and brand reputation worldwide. Before taking such actions, it is important to weigh the benefits of taking an action locally against potential consequences to be borne globally, both externally and internally in the enterprise.

Stop 3: Quebec French Language Update

Jessica Cytryn of McCarthy Tétrault provided an update on French language laws, with a focus on a recent case in public signage. The general rule for public signage in Quebec is that all public signs must be in French. Where a non-French trademark is displayed on a public sign, it must be accompanied by a certain amount of French text around that trademark, but the trademark itself does not need to be translated.

In this recent case¹, the Quebec Administrative Tribunal held that the Swiss watch company, Swatch, could display its trademark “SWATCH” outside of its storefronts in Quebec without any accompanying French text because although “SWATCH” is indeed a trademark in a language other than French, it also qualifies for the exception set out for an “artificial combination of letters”.

 The main takeaways for businesses operating in Quebec are:

• If you have a long-standing trademark with good brand recognition, the power of your mark might transcend any non-French words or expressions forming part of the mark, and you may be able to take the position that it is an “artificial combination of letters” and can thus appear on public signs by itself with no requirement to add any French.
• Even if your trademark is a word in the English dictionary (or the dictionary of a language other than French), if that word is unrelated to the products or services on offer (like “swatch” meaning “sample” in the context of watches), you may be able to take the position that it is “an artificial combination of letters”.

 This decision has generated a good amount of press and has been circulating among practitioners, so we can expect to see companies trying to rely on it going forward. It will be interesting to see how or if the regulator will try to create distinctions from the Swatch case to limit the situations in which the “artificial combination of letters” exception can be used.

Stop 4: The Rise of Agentic Commerce

Michael Scherman (McCarthy Tétrault) explored the concept of agentic commerce, which occurs when AI agents act as economic actors – searching, comparing, deciding, and completing purchases on behalf of consumers, often without the consumer ever visiting a retailer's or brand's website.

This raises a host of thorny legal questions including contract formation, authority, consumer consent, privacy, returns, and dispute resolution, as well as the strategic importance of ensuring retailers remain discoverable to AI agents, not just human shoppers.

With the increasing use of AI agents, retailers and consumer goods businesses should be aware of a few key considerations:

1. Will existing processes governing contract formation and authority be upheld or break down? Who is the contracting party? If the AI agent makes an error, will it invalidate the contract?
2. Consumer protection and privacy needs to be considered – how will consumers consent to purchase terms and conditions if bots are purchasing for them? How will disputes over a purchase be handled when consumers never saw the checkout page?
3. Since there is reduced direct interaction with the consumer, there will need to be new strategies (such as loyalty programs) to enhance discoverability and appeal, and to ensure that AI agents can access the products.
4. Know your AI agents: are they trustworthy? Who owns them?

These changes are coming quickly – and while there are legal challenges, they can be overcome.

Stop 5: Quick Takes in Competition Law

Nikiforos Iatrou of McCarthy Tétrault discussed key developments in competition law relevant to retail and consumer products businesses:

• Drip pricing.  Hidden fees that arise at the point of purchase can raise issues. The Competition Bureau's position is that if fixed fees could have been disclosed earlier in the consumer journey, businesses should be doing so. Retailers and direct to consumer brands should review how prices are presented across channels, particularly online and in in-app environments, to ensure that consumers are not surprised at checkout by charges that could reasonably have been communicated upfront.
• Algorithmic pricing, or “collusive pricing”.  Increased reliance on third‑party pricing software and AI‑driven tools, results in a growing risk of unintentional coordination. Even where competitors are not communicating directly, the use of shared algorithms or overlapping data inputs can raise concerns if pricing outcomes begin to converge. Businesses should understand how their pricing tools operate, what data is being fed into them, and whether contractual safeguards and internal controls are in place to mitigate competition law risk.
• Greenwashing. Regulators are increasingly scrutinizing whether sustainability claims are accurate and substantiated, rather than aspirational or vague. Retailers and brands should ensure that environmental representations can be supported with evidence and are consistent with actual business practices.
• Dynamic pricing. Dynamic pricing raises questions around transparency, fairness, and potential competitive effects. Retailers adopting dynamic pricing models should consider how those practices may be perceived by consumers and regulators, especially as technology enables increasingly personalized or real‑time price adjustments.

Stop 6: Addressing CCAA and Distress Solutions

Lance Williams of McCarthy Tétrault, Deborah Rieger‑Paganis of Alix Partners and Richard Stieglitz of Mayer Brown to discuss early warning signs of distress and practical strategies for retailers and suppliers.

Early Warning Signs and Maintaining Customer Base

Distress is often visible well before a bankruptcy or insolvency filing. Late vendor payments and rising accounts payable are common early indicators. Counterintuitively, heavy discounting or unusually strong sales activity can also be a warning sign, as these may reflect cash‑flow pressure rather than business strength. Stretched payment terms can be a signal to reassess risk.

From a customer and revenue perspective, tightening policies may support liquidity in the short-term, but can also drive away profitable customers if these changes are not aligned with customer expectations and behaviour. For example, more stringent return policies might deflect customers from the brand.

Inventory Protection is Critical

Once inventory is co‑mingled, recovery becomes significantly more difficult. Setting up proper processes before distressed situations arise can alleviate issues. This means focusing on clear retention‑of‑title language and, where possible, physical separation of goods in‑store rather than allowing merchandise to co-mingle in a shared space with other brands.

The panel also highlighted the limited and time‑sensitive nature of repossession‑style remedies:

• In Canada, reclaiming goods under the Bankruptcy and Insolvency Act requires strict timelines and short filing windows that are often missed in practice.
• In the United States, claims made pursuant to 503(b)(9) of the Bankruptcy Code can provide priority for recent shipments but still sit behind several other priority claims and require rapid action.

Transactions Need to be Negotiated Early

Over‑tightening by vendors can accelerate a downward spiral, making early and open communication critical. While tools such as deposits or accelerated payments can be helpful, transactions undertaken too close to a filing may later be challenged — underscoring the importance of early negotiation rather than scrambling for last‑minute solutions.

Critical Vendor Status: Advantageous in the US but not in Canada

Critical vendor status functions differently in Canada and the United States. In U.S. Chapter 11 cases, a debtor may seek court approval to pay prepetition claims of suppliers whose goods or services are essential to continued operations of the business. In Canada, by contrast, suppliers more often protect themselves through cash-on-delivery or tightened payment terms rather than relying on a comparable court-ordered payment regime. One key theme across borders: early detection, preparation, and speed significantly improve outcomes when distress arises.

Footnote

1. https://www.canlii.org/fr/qc/qctaq/doc/2025/2025canlii118164/2025canlii118164.html

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