CANADA Trends and Developments Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
Baker McKenzie 181 Bay Street Suite 2100 Toronto Ontario M5J 2T3 Canada
Tel: +1 416 863 1221 Fax: +1 416 863 6275 Web: www.bakermckenzie.com
The Competition Act governs antitrust litigation for almost all businesses in Canada. Antitrust litiga - tion may be triggered through different mechanisms including: (i) enforcement by the Competition Bureau; (ii) civil or class actions commenced by private parties seeking damages for violations of one or more of the criminal sections of the Competition Act; or (iii) appli - cations to the Competition Tribunal by private parties seeking remedies under certain sections of the Com - petition Act. This publication reviews three emerging trends con - cerning: (i) the recently expanded private access regime; (ii) increasingly prevalent litigation concerning allegations of drip pricing; and (iii) evidentiary scrutiny at the certification stage of antitrust class actions. Emerging Venue: Expanded Private Access Regime As part of a recent overhaul of the Competition Act, Canadian lawmakers have expanded access to the Competition Tribunal and introduced remedies that could make private proceedings in front of the Tribu - nal more attractive to claimants. Specifically, amend - ments to expand private access under Section 103.1 of the Competition Act came into force in 2025. While private litigants had long been able to seek dam - ages under Section 36 (1) of the Competition Act for losses arising from conduct contrary to the Act’s criminal provisions, direct access to the Competition Tribunal under Section 103.1 was comparatively nar - row. Amendments enacted between 2022 and 2025 significantly expanded that framework.
The most important change is the expansion of the conduct that may be challenged through a private application. Private litigants may now seek leave to bring applications under Section 90.1, which address - es agreements that prevent or lessen competition substantially and Section 74.1, which addresses deceptive marketing practices. Previously, private access was limited to refusal to deal (Section 75), price maintenance (Section 76), exclusive dealing, tied selling and market restriction (Section 77), and abuse of dominance (Section 79). Parliament also broadened the leave test. Leave may now be granted in respect of most civil reviewable practices under the Competition Act. The Competi - tion Tribunal may grant leave where it has reason to believe that the applicant is directly and substantially affected in the whole or part of its business by the impugned conduct. Leave may also be granted where the Tribunal is satisfied that doing so would be in the public interest. Importantly, the Tribunal has held that the relevant inquiry at the leave stage is whether there is sufficient credible evidence to support a bona fide belief that the statutory requirements may be met. Applicants are not required to establish their case on a balance of probabilities. The amendments also introduced new remedies. Under refusal to deal (Section 75), price maintenance (Section 76), exclusive dealing, tied selling and market restriction (Section 77), abuse of dominance (Section 79) and anti-competitive agreements (Section 90.1), private applicants may recover monetary awards up to the value derived from the impugned conduct. Pri - vate applicants may also seek substantial administra -
58 A NTITRUST LI T IGATI O N 2026
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