CANADA Trends and Developments Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
damage as required by section 36 of the Competition Act, concluding that it was “arguable that, because of the ‘drip pricing’ conduct, the customer suffers loss or damage equal to the difference between the unat - tainable price and the price paid”. The Federal Court declined to certify the double-tick - eting claim, finding that it was plain and obvious that the double ticketing cause of action had no reason - able prospect of success. The court explained that “one cannot say that Canada Post is, on one hand, adding price elements as the sale process unfolds, and, on the other hand, charging the higher of two or more prices”. Double ticketing involves the latter (charging the higher of two or more prices that were presented simultaneously) and not the former (adding price components through the purchase process). The alleged conduct in this case could not amount to both. Federal Court of Appeal upholds Competition Tribunal decision in drip pricing case Drip pricing has also been on the regulator’s agenda. Earlier this year the Federal Court of Appeal dismissed an appeal from a Competition Tribunal ruling allow - ing the Competition Commissioner’s application that a movie theatre company had violated the drip pricing and false and misleading advertising provisions of the Competition Act. In 2022, the movie theatre company introduced an online booking fee for ticket purchases made on its website or on its app. The Competition Tribunal found that the initially displayed price for movie tickets on the company’s website and app was not attainable due to the obligatory online booking fee. The Competition Tribunal ordered the movie company to make changes to its website and app and imposed a nearly CAD40-million administrative monetary pen - alty. This was the first instance in which the Competi - tion Tribunal applied the new drip pricing prohibition in the Competition Act ( Cineplex Inc . v Commissioner of Competition , 2026 FCA 10). Notably, and as is common in Canada, a proposed class action was commenced in British Columbia following the Competition Tribunal decision seeking damages for, among other things, alleged breaches of the Competition Act. On a preliminary motion, a British Columbia court allowed the drip pricing claim to pro -
ceed but struck the double ticketing claim ( Bahraini v Cineplex Inc ., 2026 BCSC 664). Emerging Trend: Evidentiary Scrutiny at the Certification Stage A key battleground in a Canadian competition class action is the certification stage. At this point, the court determines whether a case is appropriate to proceed as a class action. In common law jurisdictions, subject to some variation across provinces, a party seeking to certify a class action bears the burden of establishing that: • the pleading or the notice of application discloses a cause of action; • there is an identifiable class of two or more per - sons that would be represented by the representa - tive plaintiff or defendant; • the claims or defences of the class members raise common issues; • a class proceeding would be the preferable proce - dure for the resolution of the common issues; and • there is a representative plaintiff or defendant who: (a) would fairly and adequately represent the inter - ests of the class; (b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class, and of noti - fying class members of the proceeding; and (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members. Canadian courts have regularly certified or authorised Canadian competition class actions despite strenu - ous opposition from defendants. However, in several recent instances, courts have declined to certify com - petition class actions, perhaps indicating a trend of increased scrutiny over certification of competition class actions. In Parris v Firmenich International SA et . al ., 2026 ONSC 3922, the Ontario Superior Court of Justice dismissed a motion to certify a class proceeding alleg - ing that the defendant manufacturers of “fragrance ingredients” engaged in an unlawful price-fixing con - spiracy to fix or manipulate the prices of fragrance products in Canada. The crux of the certification
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