Competition Act: Expanded private enforcement rights now in force

On Friday, June 20, 2025, Competition Act amendments came into force that significantly expand private parties’ ability to bring cases to the Competition Tribunal. On the same day, the Competition Bureau released its draft Bulletin on Private Access to the Competition Tribunal for public consultation.   

Overview of the Expanded Rights of Private Access

The following key amendments came into force on June 20, 2025: 

• Private litigants can now seek leave to bring applications before the Tribunal under section 74.1 (deceptive marketing practices, including the new greenwashing provisions) but must show that the application is in the public interest. 

• Private litigants can now seek leave to bring applications before the Tribunal under section 90.1 (agreements that harm competition) where they can show either (i) that they are directly and substantially affected by conduct that could be subject to an order under the applicable provision or (ii) that the application is in the public interest. 
• The leave test for private applications under sections 75 (refusal to deal), 77 (tied selling and market restriction), and 79 (abuse of a dominant position) was amended. Now, private parties must prove either (i) that they are directly and substantially affected by conduct that could be subject to an order under the applicable provision or (ii) that the application is in the public interest. 
• For certain deceptive marketing practices, a private applicant can seek a damages award not exceeding the amount paid for the product that was the subject of the misrepresentation, to be distributed among those who purchased the product (the Commissioner of Competition could seek this remedy prior to the amendments). 
• Under other provisions (s. 75 exclusive dealing, s. 76 price maintenance, s. 77 tied selling and market restriction,  s. 79 abuse of a dominant position, and s. 90.1 agreements that harm competition), a private applicant can seek an award of up to the value of the benefit derived from the anticompetitive conduct. The award can extend beyond the applicant and include anyone affected by the conduct. This is effectively a disgorgement remedy that appears designed to encourage proceedings similar to class actions.
• For certain conduct, private parties can now seek substantial administrative monetary penalties (which are paid to the federal government and not the private party): 
  • For certain s. 74.1 deceptive marketing practices, where the respondent is an individual, the private party can seek a penalty of up to $750,000 (up to $1,000,000 for subsequent orders), or (ii) three times the value of the benefit derived from the conduct. Where the respondent is a corporation, the private party can seek a penalty in an amount not exceeding (i) $10,000,000 and $15,000,000 for each subsequent order, or (ii) three times the value of the benefit derived from the conduct or, if that amount cannot be reasonably determined, 3% of the corporation’s annual worldwide gross revenues. 
  • For s. 90.1 agreements that harm competition, the private party can seek a penalty in an amount not exceeding (i) $10,000,000 (up to $15,000,000 for subsequent orders), or (ii) three times the value of the benefit derived from the conduct or, if that amount cannot be reasonably determined, 3% of the corporation’s annual worldwide gross revenues.
• The Commissioner could already seek these remedies before these amendments came into force. Both the Commissioner and private applicants could also already seek similar administrative monetary penalties in respect of conduct alleged to be abuse of a dominant position. 

For more information about the scope of these amendments, see our August 2024 article. 

The Competition Bureau’s Anticipated Involvement in Private Applications

The Competition Bureau has released a bulletin providing its preliminary views on its role in private applications before the Tribunal, which is open for consultation until August 19, 2025. It has stated that, depending on the case, the Bureau  may decide to intervene in or take actions that impact private applications. 

The Bureau will intervene in the private access application where it believes that doing so is in the public interest based on, for example:

• the potential impact on consumers, the business community or the economy;
• the potential legal impact (i.e., could the case set an important precedent); 
• if the Bureau would bring a different perspective; or 
• if the Bureau believes the application makes a strong case for appropriate remedies under the Competition Act. 

The Bureau may oppose the leave application if it believes the case would be better resolved through a public investigation and enforcement action by the Bureau. The Bureau may also apply to have any consent agreement between the private parties varied or rescinded if it is likely to have anti-competitive effects. 

In what the Bureau anticipates will be “rare cases”, it may decide to commence an inquiry or file its own application, either of which would prevent the Tribunal from considering the private application. 

We have some insight into how the Bureau may choose to participate in private leave applications. In late 2024, the Commissioner intervened in JAMP Pharma Corporation’s application for leave to bring a private abuse of dominance application against its competitor, Janssen Inc. While the Commissioner took no position on the merits of JAMP’s application for leave nor its underlying abuse of dominance allegations, the Commissioner intervened to make submissions on the leave test. The Commissioner’s position in that case suggests that his view is that the leave test should be a fairly low bar that only screens out clearly frivolous and vexatious claims. On this point, the Commissioner made the following submissions:

• In assessing whether the alleged conduct “could” be the subject of an order under section 79 of the Competition Act (an element of the leave test), the Commissioner encouraged the Tribunal to apply a “liberal” interpretation “that is informed by the intent and purpose of” the amendments already in force. The Bureau suggested that these purposes included improving access to justice for businesses and expanding the scope of activities subject to review. 
• The leave test should allow the Tribunal to exercise its gatekeeper function but should not bar meritorious claims that would reduce the benefits of private access, which include the following: 
  • It “complements” public enforcement;
  • It increases the deterrent effect of the Act;
  • It may lead to faster dispute resolution; and
  • It may contribute jurisprudence that clarifies the law. 
• Anti-competitive conduct affects not only private interests but may have larger consequences for the economy. For this reason, litigation between private parties is part of the overall system promoting competition in Canada. 

We can expect the Commissioner may take a similar position in upcoming leave applications and that he will make submissions regarding the application of the public interest leave test. In its annual plan for 2025-26, the Bureau indicated that it intends to work to strengthen private enforcement through “monitoring cases, updating guidance, and intervening on key legal issues to support greater competition.” 

Key Takeaways

We expect that the less stringent test for leave (including the potentially broad public interest threshold) and new remedies, including those that appear designed to encourage class-action-like proceedings, will cause an increase in competition litigation in the short-to-medium term. This is because it is likely that enterprising class counsel and environmental groups may seek to bring cases that test the boundaries of the expanded private enforcement rights, and it will take litigation on key issues to establish key principles in the case law. 

Importantly, companies need to consider the expanded right of private enforcement in conjunction with other recent substantive amendments that broaden the scope of the type of cases that can be brought by private parties and make it easier to obtain a remedy. The result is a potentially substantial increase in the compliance and litigation risk to businesses. At the same time, there is much uncertainty about how the new provisions will be interpreted, and it remains to be seen whether the leave tests will be a meaningful screening tool. While all businesses should assess their practices to ensure they are in compliance with the Competition Act to reduce their risk, this is particularly relevant for those with strong market positions or that make significant environmental representations regarding their products or business activities