Comments on Bulletin on Private Access to the Competition Tribunal

(Disponible uniquement en anglais) 

Via email: matthew.boswell@canada.ca

Matthew Boswell
Commissioner of Competition
Competition Bureau
50 Victoria Street
Gatineau, Quebec K1A 0C9
Dear Commissioner Boswell:

Re: Comments on Bulletin on Private Access to the Competition Tribunal

The Competition Law and Foreign Investment Review Section of the Canadian Bar Association (CBA Section) welcomes the opportunity to submit comments on the Bulletin on Private Access to the Competition Tribunal (Bulletin)¹, which was revised on June 20, 2025, in response to the recent amendments implemented through Bill C-59.²

The Canadian Bar Association (CBA) is a national association representing over 40,000 jurists, including lawyers, notaries, law teachers, and students across Canada. The CBA promotes the rule of law, access to justice, and effective law reform, and offers expertise on how the law touches the lives of Canadians every day. The CBA Section comprises approximately 1,000 lawyers and promotes greater awareness and understanding of legal and policy issues relating to competition law and foreign investment.

The CBA Section commends the Competition Bureau’s continuing efforts to engage with stakeholders through public consultation and to give meaningful guidance to members of the bar and market participants. This guidance is especially important for expanded private rights of access to the Competition Tribunal (Tribunal), as these changes are a considerable expansion of the private rights of action previously available.

I. Bureau’s Role in Private Applications

Section 2 of the Bulletin describes the Bureau’s role when a private party initiates an application to the Tribunal and divides this role into three stages:

• Application for leave
• Hearing of an application
• After an application is resolved

These submissions will mirror the above structure.

A. Application for Leave

The CBA Section has one suggestion related to Section 2.1 of the Bulletin: it should be adjusted to more accurately describe the test for obtaining leave regarding refusal to deal (section 75), exclusive dealing, tied selling and market restriction (section 77), abuse of dominant position (section 79), and agreements that harm competition (section 90.1).

The Bulletin describes the test for these sections as follows:

• There is reason to believe that one of the following is true:
  • the private party is directly and substantially affected in the whole or part of its business by conduct that could be subject to an order under that section of the Act, or
  • it is in the public interest for leave to be granted.

However, the wording of the test in section 103.1(7) is:

The Tribunal may grant leave to make an application under section 75, 77, 79 or 90.1 if it has reason to believe that the applicant is directly and substantially affected in the whole or part of the applicant’s business by any conduct referred to in one of those sections that could be subject to an order under that section or if it is satisfied that it is in the public interest to do so. [emphasis added]

In other words, it is not obvious that the “reason to believe” standard applies to the public interest test.

Recommendation

1. To clarify the public interest test for sections 75, 77, 79, and 90.1, the CBA Section recommends that the Bulletin include the precise wording of section 103.1(7). The Tribunal may grant leave on the first part of the test if it has “reason to believe” an applicant is directly and substantially affected in the whole or part of its business by conduct that could be subject to an order under that section of the Act. If relying on the second part of the test to grant leave, the Tribunal must have more than reason to believe—it must be satisfied that granting leave is in the public interest.

B. Hearing of an Application

Section 2.2 of the Bulletin discusses the Bureau’s role and approach after a private party has been granted leave by the Tribunal. The Bulletin indicates that the Bureau may intervene at any stage of the process, and that “[t]he nature of our intervention will depend on the case. For example, it could include filing evidence and examining witnesses, or it could be limited to making representations to the Tribunal.”

Recommendation

2. The CBA Section recommends including references in this section to the provisions in the Act and the Competition Tribunal Rules that govern the roles that intervenors may have in the proceedings, including the discretion that the Tribunal has to make these determinations.

C. After an Application is Resolved

1.  When the Bureau is likely to object to a settlement

Section 3.1 of the Bulletin explains that the Bureau may object to a settlement where it believes the settlement is likely to have anti-competitive effects. It provides an example of a settlement that favours one of the private parties in terms of market entry or expansion, but creates barriers for other market participants.

The Bulletin is silent on whether the Bureau will consider the adequacy of a settlement agreement to resolve conduct that it may believe to be anti-competitive (i.e., whether the Bureau would object to a settlement that it feels does not go far enough to remedy potentially anti-competitive conduct).

Recommendation

3. The CBA Section recommends that the Bulletin provide additional guidance and/or examples, including the Bureau's position on whether it would challenge the adequacy of a proposed settlement that it considers to be insufficient to remedy alleged anti-competitive effects.

2. Settlement criteria in section 74.131(6)

The Bulletin is silent on the unique settlement criteria in section 74.131(6) of the Act for deceptive marketing applications. That provision allows the Commissioner to apply to the Tribunal to vary or rescind a registered consent agreement where it is of the view that the settlement agreement “is not in conformity with the purposes of this Part.”

Recommendation

4. The CBA Section urges the Bureau to provide additional guidance on its interpretation of when a registered consent agreement would not be “in conformity with the purposes of this Part” under section 74.131(6). It would be helpful to provide examples of situations where the Bureau is likely to apply to vary or rescind such agreements.

II. How the Bureau Approaches Private Applications

Section 3 of the Bulletin addresses the Bureau’s approach to:

• how and when the Bureau will participate in private access applications; and
• actions that impact private applications.

A. Circumstances in which the Bureau will intervene

Section 3.1 of the Bulletin describes how and when the Bureau is likely to participate in private applications, stating “when deciding whether we will participate, we consider if it is in the public interest for us to do so (,,,)” and adding that the Bureau may consider the potential economic and legal impact raised by the private application, whether the Bureau may bring a different perspective, and whether the private application makes a strong case for appropriate remedies under the relevant sections of the Act. This wording marks a change from the 2005 version of the Bulletin, which stated that the Commissioner will only intervene in “exceptional circumstances, such as:

• when the impact on competition has importance beyond the immediate parties and affects a wider geographical area, or;
• when the issues could have a significant impact on consumers, on the business community, or on the Canadian economy, or;
• when the case could result in the development of a new economic theory or in valuable jurisprudence.”³

Similarly, the 2005 version of the Bulletin stated that the Commissioner will generally not make written representations to the Tribunal at the leave stage, “unless in exceptional circumstances, such as:

• when the Commissioner believes a particular case has importance beyond the immediate parties, or;
• when the case could result in valuable jurisprudence.”⁴

The Bulletin’s revised wording focuses on public interest with no mention of exceptional circumstances. These changes suggest a lower threshold for when the Bureau may intervene in private applications.

Recommendation

5. If the Bureau is signalling a greater willingness to intervene in private applications, or to make written submissions regarding such applications, the CBA Section recommends that the Bulletin explain the reasons for lowering these thresholds. If the Bureau does not intend to signal a lower threshold, then the CBA Section recommends clarifying that only in exceptional circumstances will it be in the public interest for the Bureau to intervene or make written representations in disputes between private parties.

B. Actions that impact private applications

1. Where the Bureau may begin an inquiry

Section 3.2 of the Bulletin states that, in rare cases, the Bureau may begin an inquiry within 48 hours after being served with an application for leave. The effect of such a step is that the Tribunal cannot consider a private leave application in cases where "we are already investigating the matter and where we believe it would be better for us to resolve the issues through public investigation and enforcement.”

While the Bulletin suggests the Bureau would only take this action “in rare circumstances”, the question of when the Bureau would decide to take carriage of a matter that is the subject of a proposed private application has important implications for all parties, and greater clarity on this point would be helpful.

Recommendation

6. The CBA Section recommends that the Bureau provide additional guidance on what kinds of cases or circumstances would lead it to conclude that a case would be better resolved through public investigation and enforcement, to provide greater clarity on when parties can expect the Bureau to take such action within the 48 hour period in which it must certify whether or not it is undertaking an inquiry that precludes a private application from going forward.

2. Where the Bureau may file an application

Section 3.2 of the Bulletin includes the following list of examples where the Bureau may file its own application dealing with conduct covered by a proposed private application:

"Examples of where this could occur are:

• Where we are prepared to make an application and believe the matter would be better handled through public enforcement
• Where it appears the private party has cast their case too narrowly
• Where we believe it would be better to address the conduct through a section of the Act where private access is not available
• Where a private party has received leave but has not made a private access application within a reasonable period of time, and we are prepared to make our own application."

Regarding the third bullet, the CBA Section notes that private applications are now available for practically all reviewable practices in Part VIII of the Act, except for:

• delivered pricing (sections 80-81)
• foreign judgment/laws/directives (sections 82-83)
• foreign suppliers (section 84)
• specialization agreements (sections 85-90)
• mergers (section 92)

Regarding the fourth bullet, this scenario should never occur. The private applicant’s proposed notice of application is deemed to be filed when leave is granted. Therefore, there should be no instance where a private party has received leave but has not made a private application within a reasonable period of time.

Recommendation

7. The CBA Section recommends deleting the fourth example from the list in Section 3.2 (or, in the alternative, clarifying the fourth example) and clarifying that the third bullet applies only to reviewable practices regarding

III. Privacy Concerns

A. Privacy concerns related to Bureau Interventions

In sections 3.1 and 3.2, the Bulletin refers to a “public investigation.”

"When deciding whether to participate at the leave stage, along with the above questions, we may also ask whether it would be better for us to resolve the issue through public investigation and enforcement."

…

"We are most likely to do this if we were already investigating the matter and believe it would be better for us to resolve the issue through public investigation and enforcement."

We note that Bureau investigations are “public” in the sense that they are conducted by a government enforcement agency rather than a private applicant. However, this use of the term “public” may suggest that Bureau inquiries are done in open view, when in fact these investigations are required to be conducted in private in accordance with sections 10 and 29 of the Act.

Recommendation

8. The CBA section recommends changing the references to “public investigations” in sections 3.1 and 3.2 of the Bulletin to our mandate to conduct investigations and enforcement of the Competition Act in the public interest.”

B. Privacy concerns related to the disclosure of information

we may offer insight about the issues in the private access application. Or we may say that we support or are opposed to it.” Footnote 17 contains the following comment on the separate issue of confidential information gathered from investigations:

See section 7.7 of our Information Bulletin on the Communication of Confidential Information Under the Competition Act for information about our approach to potential disclosure of information that we have gathered through investigations in the context of a private access application.

The Bureau's approach to disclosing information gathered through its own investigation of related conduct is an important topic. More description regarding the use and disclosure of such information is needed than a footnote with a cross-reference to another document.

Recommendation

9. The CBA Section recommends that the Bureau’s approach to disclosure of information should be dealt with as a separate section in the Private Access Bulletin.

Yours truly,

(original letter signed by Noel Corriveau for Dominic Therien)

Dominic Therien
Chair-Elect, Competition Law and Foreign Investment Review Section

cc.: Mike Hollingworth, Associate Deputy Commissioner