Competition Act Amendments Open Door to Quasi Class Actions

Written By Emrys Davis and Mercy Liu

Since 2022, the Government of Canada has substantially amended the Competition Act each year for three successive years. Among the many changes are a collection of related amendments which aim to expand access to the Competition Tribunal to private litigants. New remedies become available in June 2025 and will create significant financial incentives for private plaintiffs to litigate at the Tribunal, including in a quasi-class action on behalf of all persons affected by the respondent’s alleged anti-competitive conduct. Beginning in June 2025, we anticipate plaintiffs will file new cases—at first perhaps only a trickle rather than a flood—as they test the procedural rules that the Tribunal will apply to these cases.

The First Wave—2022 Amendments

The first wave of amendments to the Competition Act was proposed as part of Bill C-19 in April 2022 and received royal assent on June 23, 2022.

Bill C-19 introduced the right for private parties to seek leave to make an application under section 79 of the Competition Act (the abuse of dominance provisions).

The Tribunal clarified the test for leave in JAMP Pharma Corporation v Janssen Inc., 2024 Comp Trib 8. It confirmed that leave may be granted where only a part of the applicant's business is directly and substantially affected by the alleged conduct. However, for leave to be granted, applicants must still lead "credible, cogent and objective evidence" going beyond "mere possibility". In ultimately denying leave in JAMP, the Tribunal appears to have maintained a reasonably high threshold for leave that may challenge private plaintiffs.

The Third Wave—2024 Amendments

Although private rights of action were not addressed in the second wave of amendments which received royal asset on December 15, 2023, they would regain focus during the final wave of amendments to the Competition Act, which was proposed as part of Bill C-59 in November 2023 and received royal assent on June 20, 2024. Many of Bill C-59's Competition Act amendments are subject to a one-year delay such that they will come into force on June 20, 2025.

As it had in 2022, Parliament again expanded the categories of conduct now subject to review by the Tribunal on the application of a private plaintiff. Beginning on June 20, 2025, private parties will be able to seek leave to bring a case for alleged violations of section 90.1, the Act’s civil anti-competitive agreements provision, and section 74.01, the civil misleading advertising provisions of the Act.

Perhaps most importantly, for the first time, private parties will also be able to seek a financial award as the Tribunal may order a payment from the respondent in an amount not exceeding the "value of the benefit derived from the conduct that is the subject of the order." This award may be distributed to the applicant and "any other person affected by the conduct," effectively introducing a novel quasi-class action scheme in which a single plaintiff can secure a financial award for many others.

Despite creating financial incentives to advance quasi-class actions at the Tribunal, the Act remains silent on the ordinary procedural protections and requirements that class action proceedings are otherwise subject to in Canada. These include class certification, a court-supervised settlement approval process, class-wide release for defendants and court approval of plaintiffs' legal fees. How the Tribunal will deal with these procedural issues has been a topic of much debate. Some suggest that the Tribunal will adopt some or all the procedural rules that Canada’s Federal Court applies. Nevertheless, what procedural rules and processes the Tribunal eventually applies remains to be seen.

Looking Forward

The expanded rights of private access and accompanying financial incentives promise to radically reshape competition enforcement in Canada. They have also created a significant new category of potential cases for plaintiffs-side class action lawyers who may use the new private access to the Tribunal to pursue many categories of anti-competitive conduct that they have not been able to prosecute under the existing class action framework. We expect plaintiffs to file some of the first test cases as early as late June 2025 as they begin to explore and develop the new Tribunal private access regime.

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