Bill C-59 and its significant expansion of private competition litigation: Where are we now?

Recognizing the critical role of the Competition Act (the “Act”) in promoting dynamic and fair markets, Canada’s Minister of Innovation, Science and Industry, the Honourable François-Philippe Champagne, announced on February 7, 2022 that he would carefully consider ways to modernize and improve its operation. Following this announcement, significant competition law reform has taken place in Canada, including the passage of Bill C-19 on June 23, 2022, the passage of Bill C-56 on December 15, 2023 and the passage of Bill C-59 on June 20, 2024 (collectively, the “Bills”).

The Bills include amendments that touch on virtually all facets of competition policy in Canada, including, without limitation, merger review, abuse of dominance, criminal cartels, competitor collaborations, deceptive marketing, private rights of action and market studies. All provisions of the Bills are now in force, with the exception of a select few amendments which will come into force later in 2024 and 2025.

According to the Government’s 2023 Fall Economic Statement, these amendments are “generational changes” that “will help bring Canada into alignment with international best practices to ensure that our marketplaces promote fairness, affordability, and innovation”. We would go further and describe these amendments as the most significant changes to the Act in almost 40 years – changes that fundamentally alter and transform the competition law landscape in Canada.

This blog post summarizes in one place the provisions in the Bills relating to private rights of access, which will likely create robust private litigation at the Competition Tribunal (the “Tribunal”), including what is potentially a form of a class action regime. In particular, these provisions will allow private access under more sections of the Act, possibly ease the leave test that must be satisfied by private parties wanting to bring a private action and permit the Tribunal to award monetary relief to successful applicants. Notably, with the exception of the provision allowing for private access under the abuse of dominance provisions (which came into force as of June 23, 2022), these provisions do not come into effect until June 20, 2025 (i.e., one year after Bill C-59 received royal assent).

Expanded Scope of Conduct Captured

The Bills have expanded the number of provisions under which private parties can seek leave to bring applications before the Tribunal. In this regard, Bill C-19 initially extended private rights of access to section 79 (abuse of dominance) and Bill C-59 further extended private rights of access to section 74.1 (deceptive marketing) and section 90.1 (civil competitor collaboration) of the Act. Prior to the passage of these Bills, private rights of access were only available with respect to sections 75 (refusal to deal), 76 (price maintenance) and 77 (exclusive dealing, tied selling and market restriction).