OVERVIEW OF JUNE 2024 AMENDMENTS
On June 20, 2024, Bill C-59 was passed (the Fall Economic Statement Implementation Act, 2023), which introduced the third of three significant rounds of amendments to Canada’s federal Competition Act in two years (together with Bill C-19 and Bill C-56). For more information, see: Competition Act Amendments.
The June 2024 round of amendments to the Competition Act completed a sweeping overhaul of the Competition Act across virtually all key provisions of Canada’s competition legislation. These amendments were also the most significant changes to Canadian competition law since the modern Competition Act came into effect in 1986 replacing the former Combines Investigation Act.
The Bill C-59 amendments, among other things, strengthened the Competition Bureau’s powers to enforce key deceptive marketing provisions of the Competition Act (e.g., relating to drip pricing, performance claims and ordinary selling price (OSP) claims), strengthened private party rights to seek Competition Tribunal remedies (e.g., for civil deceptive marketing and violations of the civil agreements provisions of the Act), introduced new penalties (e.g., administrative monetary penalties for violating the civil agreements provisions of the Act and for reprisal actions penalizing individuals for complying with the Act) and introduced a new clearance regime for environmental protection related agreements.
EXPANDED PRIVATE ACCESS RIGHTS
TO THE CANADIAN COMPETITION TRIBUNAL
As a result of the above amendments, as of June 20, 2025, following a one-year transition period, private parties are now able to commence private access applications under sections 90.1 (the civil agreements provision) and 74.1 (for civil deceptive marketing matters under Part VII.1 of the Competition Act). Previously, only the Competition Bureau could commence enforcement under these provisions of the Competition Act.
These expanded private access rights are in addition to existing private action rights (proceedings before the courts under section 36 of the Competition Act) and private access rights (applications commenced before the Competition Tribunal). For more information, see: Bureau Enforcement.
Deceptive Marketing Practices
(Part VII.1 of the Competition Act)
With respect to deceptive marketing practices, as of June 20 2025, private parties may now seek leave from the Competition Tribunal to commence proceedings under the civil deceptive marketing practices provisions (Part VII.1) with the only leave requirement for standing being that the proceedings are in the “public interest”. It remains to be seen, however, how the Competition Tribunal will interpret this new public interest leave test.
Part VII.1 includes general civil misleading advertising, performance claims (and environmental performance claims), testimonials and endorsements, drip pricing and ordinary selling price claims. For more information about the civil deceptive marketing provisions of the Competition Act, see: Misleading Advertising.
Following 2022 amendments to the Competition Act, the maximum administrative monetary penalties (AMPs) for civil deceptive marketing increased: (i) for individuals, up to the greater of $750,000 ($1 million for each subsequent order) and three times the value of the benefit derived from the deceptive conduct; and (ii) for corporations, up to the greater of $10 million ($15 million for each subsequent order) or three times the value of the benefit derived from the deceptive conduct or, if the latter amount cannot be reasonably determined, 3% of the corporation’s annual worldwide gross revenues.
In addition, following June 2024 amendments to the Competition Act, which came into force on June 20, 2025, the Competition Tribunal may now order monetary payments to private applicants and any other persons affected by the conduct (so-called “disgorgement remedies”) not exceeding the “benefit derived from the conduct that is the subject of an order” where it finds that grounds for certain types of orders have been established under an applicable reviewable practice provision. This new remedy, however, excludes the misleading representation provisions).
Civil Agreements Provision
(Section 90.1 of the Competition Act)
With respect to the civil agreements provision of the Competition Act (section 90.1), this provision was significantly expanded following December 2023 amendments to allow vertical agreements (agreements among non-competitors), in addition to previously only horizontal agreements (agreements between competitors), to be reviewed by the Competition Tribunal. For more information, see: here.
Further to June 20, 2024 amendments, which came into force on June 20, 2025, the Competition Tribunal may grant leave to private applicants under section 90.1 of the Competition Act (in addition to the refusal to deal, exclusive dealing / tied selling / market restriction and abuse of dominance provisions of the Act) where one of the following two tests is met: (i) the applicant is directly and substantially affected in the whole or part of its business by the relevant conduct that could be subject to a Competition Tribunal order; or (ii) if it is satisfied that it is in the public interest to do so. This test for leave to the Competition Tribunal for section 90.1 is, as it is for the other provisions discussed above, more lenient in two respects for private applications than in the past: first, only requiring an applicant to show that its business is substantially affected in whole or in part and introducing an alternative test for leave, namely, if it is in the public interest to grant leave (a test that was not available before the June 20, 2024 amendments).
Where the Competition Tribunal finds a violation of section 90.1, it may make the following types of orders: (i) prohibiting anyone from doing anything under the agreement; (ii) an order requiring the payment of an AMP not greater than $10 million and three times the value of the benefit derived from the agreement (or, if that amount cannot be determined, 3% of the person’s annual worldwide gross revenues); (iii) an order requiring respondents to take any other action, including the divestment of assets or shares, necessary to overcome the effects of the agreement; and (iv) in the case of a private application to the Competition Tribunal, a disgorgement order.
NEW COMPETITION BUREAU GUIDANCE
ON ACCESS TO THE COMPETITION TRIBUNAL
In addition to the above, on June 20, 2025, the Competition Bureau issued a revised Bulletin on Private Access to the Competition Tribunal.
IMPLICATIONS
The expanded private access rights to the Competition Bureau that are now in force as of June 20, 2025 increase the potential risk for companies and others that violate the civil deceptive marketing practices provisions (under Part VII.1 of the Competition Act) and the civil agreements provision (section 90.1).
In addition, the newly in force disgorgement remedy for some types of reviewable matters before the Competition Tribunal (discussed above) also widen the potential remedies available to private applicants.
These expanded private access rights, together with the three recent rounds of substantive amendments to the Competition Act in 2022, 2023 and 2024, also mean that it is more important than ever for companies and others that face potential competition law risk to adopt credible and effective competition law compliance programs.
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SERVICES AND CONTACT
We are a Toronto competition and advertising law firm that helps clients in Toronto, Canada and the United States practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
Our Canadian advertising/marketing law services include advice in relation to: anti-spam legislation (CASL); Competition Bureau complaints; the general misleading advertising provisions of the federal Competition Act; Internet, new media and social media advertising and marketing; promotional contests (sweepstakes); and sales and promotions. We also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
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