Navigating the new Competition Act: early impacts and emerging challenges Navigating the new Competition Act: early impacts and emerging challenges

Transformative amendments to the Competition Act have been in force for just over a year and we are already seeing their impact in several areas. Transactions are being subjected to heightened scrutiny, requiring a proactive approach from merging parties. At the same time, the expanded civil commercial agreements provision creates new uncertainty that we hope will be addressed in final enforcement guidelines and shaped by litigation in the coming years. The impact of the expanded private enforcement rights and the fate of the new maximum administrative monetary penalties (AMPs) available under certain civil provisions will continue to unfold over the year to come, as the first private right of action has commenced with an application for leave on a public interest basis, and a challenge to the constitutionality of the AMPs will be determined.

More rigorous merger reviews

One of the most impactful changes has been the introduction of statutory rebuttable presumptions of harm in merger transactions. The impact is clear: there is a significant increased focus on market definition, market structure, and market share and concentration levels. It is more important than ever to invest in a competitive effects analysis up-front where a transaction results in possible horizontal or vertical competitive effects. The Competition Bureau (Bureau) is taking a closer look at industries, such as upstream oil and gas, that were historically considered less contentious from a competition perspective. At the same time, the Bureau has also continued to show some flexibility in negotiating settlements without requiring full compliance with the statutory waiting periods. In mid-November, the Bureau released for stakeholder consultation its revised draft merger enforcement guidelines, with the consultation open until mid-February.

For transactions with even modest overlaps, it is taking incrementally longer to obtain affirmative comfort from the Bureau in the form of a “no action letter.” The proportion of merger reviews exceeding 45 days has increased. At the same time, the percentage of transactions for which an advance ruling certificate (ARC) is being issued has decreased. Moreover, there is an increase in the use of Part IX formal notifications to trigger statutory timelines.

The Bureau has ramped up its reliance on section 11 production orders to compel information from both the merging parties and third parties such as customers, suppliers and competitors. In one noteworthy example, in May 2025, the Bureau sought and obtained from the Competition Tribunal (Tribunal) production orders against Bruce Power, Ontario Power Generation and Framatome Canada in connection with its investigation into BWX Technologies’ acquisition of Kinectrics.

Additionally, the Bureau issued section 11 orders against six of Canada’s largest banks (BMO, CIBC, National, RBC, Scotiabank, TD) in connection with its investigation into Broadridge Software Limited’s acquisition of Kyndryl Canada Limited’s Security Industry Services business. For the first time, such orders were also issued against the parties to a notifiable transaction (Broadridge and Kyndryl) even though no supplementary information requests were issued as contemplated by the two-stage merger review process. Moreover, the orders were issued after the transaction had closed.  

Transactions not subject to the mandatory notification regime are not immune from Bureau intervention. In September 2025, the Bureau sought and obtained production orders against parties to a non-notifiable transaction, Mérieux NutriSciences (operating through Silliker Canada) and Bureau Veritas. Mérieux NutriSciences completed its acquisition of Bureau Veritas’s food testing business on December 31, 2024, and the Bureau opened its review of the transaction approximately four months later in April 2025.

We expect this trend to continue. The increasing complexity and delays in obtaining affirmative comfort (i.e., no action letters or ARCs) may prompt a shift in Canadian practice. Historically, parties have sought such comfort before closing, but the growing inefficiency of this process could lead to more transactions closing upon the expiry of statutory waiting periods, mirroring the longstanding U.S. antitrust merger review regime.

Expanded anti-competitive commercial agreements provision creates uncertainty

The civil commercial agreements provision historically only applied to agreements between competitors and was only enforceable by the Bureau. As amended, it applies to agreements between non-competitors where a significant purpose of the agreement is to prevent or lessen competition. In addition, it is subject to enforcement by both the Bureau and private parties.

The Bureau’s concerns about restrictive covenants and exclusivity clauses in the retail sector were a primary driver of this amendment. Early enforcement activity has focused on grocery chains. For instance, following the Bureau’s investigation into the use of property controls in the grocery sector, Loblaw made a public commitment to eliminate restrictive covenants and waive exclusivity clauses in communities where it operates the only grocery store. Empire also agreed to remove a property control restriction imposed in Crowsnest Pass, Alberta, to facilitate a new entrant.  

Practitioners and businesses continue to grapple with how the provision might apply in other industries and to other types of agreements, such as exclusive supply arrangements or joint ventures between non-competitors. The new ability of private parties to enforce this provision introduces additional unpredictability for businesses who may face claims of anti-competitive commercial agreements from private parties in areas where the Bureau may decline to act or where private parties prefer to seek their own monetary award. In late October, the Bureau released for stakeholder consultation its draft anti-competitive conduct and agreements guidelines. The guidelines are intended to detail the Bureau’s enforcement approach for the primary civil provisions of the amended Competition Act, other than the merger review provisions. The consultation is open until the end of January.

Lastly, the Bureau recently announced the discontinuance of its investigation into algorithmic pricing in the real estate sector. The Bureau noted the low adoption of these practices in Canada. However, the Bureau will continue to monitor such practices in this industry and others under the anti-competitive agreement and abuse of dominance provisions.

Limited private enforcement to date

Private parties are now able to seek substantial remedies for a much broader range of conduct and agreements under the Competition Act. However, the much-anticipated tsunami of private party applications has not yet occurred. To date, only one application for leave has been filed. On June 20, 2025, the day on which private enforcement came into effect, an application for leave on a public interest basis was filed against Google and Apple, alleging violations of the abuse of dominance and anti-competitive commercial agreements provisions of the Competition Act. The application is in many respects a copycat of ongoing U.S. antitrust enforcement activity in respect of Google’s default search engine agreements.

Several key questions remain unanswered regarding the private enforcement regime. In the year to come, we anticipate further clarity on the scope of the expanded test for leave on a public interest basis as a result of the Google decision (and possibly other applications for leave). Another key question is the manner of quantifying and distributing a monetary award. Clarification on this point, which will likely only come following a successful private action and a monetary award, may be several years away.

Evolving approaches for environmental claims

The introduction of private enforcement has also sparked debate over the application of the new greenwashing provisions to environmental disclosures in securities filings. The Bureau has clarified in its guidance that it does not intend to focus on issuer representations made to investors. Interestingly, the first private greenwashing complaint since the amendments came into effect was not filed with the Tribunal under the Competition Act but rather with the Alberta Securities Commission. Additional detail is included in our Osler Legal Outlook article.

Interestingly, Budget 2025 released in early November stated that the government will introduce amendments to the Competition Act to update the greenwashing provisions. The amendments will remove both the ability for private parties to bring applications to the Tribunal in respect of greenwashing complaints and the requirement for businesses to substantiate their environmental benefit claims based on “internationally recognized methodologies”.

Constitutional challenge of the new maximum AMP

In a related development, Google has mounted a constitutional challenge against the newly increased maximum AMP for abuse of dominance. In the context of the Bureau’s ongoing proceedings against Google, this notice of constitutional question argues that the revised AMP regime violates constitutional principles on a number of grounds. Rogers recently raised similar arguments in the context of the Bureau’s ongoing proceedings against Rogers for alleged deceptive marketing practices.

This is not the first time AMPs have faced legal scrutiny. In the Bureau’s 2013 case against Chatr Wireless, the Tribunal upheld the validity of AMPs, finding that they did not constitute true penal consequences. However, the stakes are now significantly higher. Since 2013, the maximum AMP has been dramatically increased to the greater of $25 million, three times the economic benefit derived from the anti-competitive conduct, or 3% of a company’s annual worldwide gross revenues. For Google, this could mean a penalty of $10.5 billion based on its 2024 global revenues.

The hearing of Google’s constitutional challenge concluded on October 3, 2025, and the Tribunal’s decision is pending. If the Tribunal upholds the new AMP regime, it could set a precedent for imposing substantial financial penalties on dominant firms. Conversely, a decision striking down the AMPs could significantly curtail the ability to deter anti-competitive conduct through monetary sanctions.

The year ahead in Canadian competition law and enforcement

The amendments to the Competition Act have significantly reshaped the Canadian competition law landscape. In the year to come, we anticipate that the Bureau will continue to update its guidance to address the scope and implications of the amendments. It is also inevitable that the Bureau and private parties alike will test the bounds of the new Competition Act through enforcement action and litigation. Businesses in Canada must be aware of these developments as they could dramatically affect challenges and outcomes.