CANADA Trends and Developments Contributed by: Craig Ferris, Laura Bevan, Anna Paczkowski and Codie Chisholm, Lawson Lundell LLP
plate large-scale data scraping, disconnected from the purpose of the app itself, which occurred in this case. Thus, Facebook failed to obtain meaningful con- sent from friends of users to disclose their data and thus breached the statute. The FCA also concluded that Facebook did not obtain meaningful consent of its users and was particularly critical of the length and complexity of the terms of service and data policy, of the fact that when users consented to the terms of service they were consent- ing to the data policy as well, and of the absence of any warning that bad actors could access the platform and thus their user data. The evidence also established that, during the relevant time, Facebook took a hands-off approach to policing the privacy-related conduct of third-party apps using the platform. Facebook did not review the content of third-party apps’ privacy policies as presented to users; Facebook only verified that the hyperlink led to a functioning website. Facebook also failed to act on TYDL’s 2014 request for unnecessary user informa- tion. Instead, Facebook allowed the app to continue collecting users’ friends’ data for an additional year. The FCA concluded that the totality of these practices established that Facebook did not adequately inform users of the risks to their data upon signing up to Facebook (risks that materialised in the case of TYDL and Cambridge Analytica). Therefore, meaningful con- sent was not obtained. The FCA’s criticism of the drafting of the privacy lan- guage and the consent process is a wake-up call for all people drafting privacy policies to ensure that meaningful consent is provided. In June 2025, the SCC granted leave to appeal, so it will be interesting to see if the highest court agrees with the assessment of Facebook’s policies and consent practices. Modernization of Canada’s Competition Law Regime – One Year In Significant amendments to the Competition Act became law on 20 June 2024, including provisions regarding more effective merger control, stronger powers to address anti-competitive agreements, enhanced refusal to deal provisions, improvements to the deceptive marketing practices provisions, a civil
mechanism for enforcing consent agreements and the creation of reprisal actions. One year in, the effects of these amendments are starting to be seen. Among these amendments were new provisions direct- ed at “green” deceptive marketing practices, which are false or misleading advertisements and claims about climate change and environmental protection or restoration. At least two proposed greenwashing class actions have been filed in Canada, naming cer- tain household consumer brands as defendants. Fur- ther, effective 20 June 2025, private parties can now apply directly to the Competition Tribunal to challenge deceptive marketing practices. Another area potentially impacted is commercial leas- ing. The expanded abuse of dominance provisions and anti-competitive collaboration provisions permit the Competition Bureau of Canada to investigate non- competitors with agreements that contain anti-com- petitive arrangements (such as restrictive covenants, which are common in commercial leases). Although the amendments do not explicitly refer to the use of restrictive covenants in grocery store leasing, it appears that the Bureau’s current target is the gro- cery sector. The driving force behind the amendments was to “empower the Bureau to block collaborations that stifle competition and consumer choice, particu- larly in situations where larger grocers prevent smaller competitors from establishing operations nearby”. In June 2024, the Bureau launched an investigation into Sobeys and Loblaw’s use of restrictive covenants in Halifax. The effects of some of the other provisions should be seen in the coming years. Ontario Civil Rules Review – Proposed Significant Changes May Be on the Horizon The Ontario Civil Rules Review was launched in Jan- uary 2024, with a two-year mandate to conduct a comprehensive and complete review of the rules and identify changes thereto that would increase efficiency and access to justice, reduce complexity and costs, maximise the effective use of court resources, reduce delay and leverage technical solutions. The goal is to identify and target areas for rules reform that will have the most beneficial impact for the users of the
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