The New Abuse of Dominance Regime in Canada

An Opportunity for Greater Enforcement and Access to Justice

Abstract

Between 2022 and 2024, the Parliament of Canada passed three rounds of amendments to the Competition Act.  The amendments – intended to modernize Canada’s competition regime – fundamentally change the Canadian competition law landscape.  Among other things, the amendments broaden the scope of the abuse of dominance provisions and expand the private right of action for civilly reviewable claims.  The amendments allow private parties to seek damages equal to the benefit gained by the conduct at issue on behalf of the applicant and other persons affected by the conduct.  The amendments will likely increase the enforcement of the abuse of dominance provisions and provide greater access to justice. 

The amendments bring with them substantive and procedural uncertainty.  They create new legal concepts and tests, which are layered onto existing legal concepts and tests that have received little or no judicial consideration.  It is expected that greater clarity will be provided through updated guidelines from the Competition Bureau and the development of the case law. 

The procedure for collective redress is somewhat lacking.  Key concepts, such as settlement approval, fee approval, and tolling of limitation periods, are absent.  Given that the collective redress amendments do not come into force until June 2025, there is an opportunity to address these gaps.