Bulletin on Private Access to the Competition Tribunal

Following a public consultation, the Competition Bureau has updated its bulletin on its role in private access cases before the Competition Tribunal.

Read our updated bulletin on private access: Bulletin on Private Access to the Competition Tribunal

June 20, 2025

Section 1: Introduction

This information bulletin explains the Competition Bureau’s views on private access to the Competition Tribunal (Tribunal) under the Competition Act (Act). It sets out how we view our role in private access applications and how our work relates to them.^Footnote1

The Competition Bureau and the Competition Tribunal

We are the Competition Bureau. We are an independent law enforcement agency that protects and promotes competition for the benefit of Canadian consumers and businesses. We investigate if individuals or businesses have violated the Act. For the provisions of the Act discussed in this document, we can make an application to the Tribunal^Footnote2 for an order if we believe there is a violation.

The Competition Tribunal is a specialized tribunal that has expertise in economics, business and law. The Tribunal makes decisions and issues orders under certain provisions of the Act, including the provisions discussed in this document. Businesses and individuals must comply with Tribunal orders. Private parties make their applications to the Tribunal.

1.1 Private access

Private access allows private parties to make applications to the Tribunal to seek various orders. As a private party you may choose to pursue private access for many reasons, such as if you are a business that is being negatively impacted by anti-competitive behavior. You can seek orders under these sections of the Act:

Deceptive marketing practices (74.1)
Refusal to deal (75)
Price maintenance (76)
Exclusive dealing, tied selling and market restriction (77)
Abuse of dominant position (79)
Agreements that harm competition (90.1)

1.2 Orders of the Tribunal

Orders of the Tribunal can include a number of requirements and can be different depending on the nature of the private access application. They can include requirements to stop the conduct that violated the Act. In some cases they can also include requirements to make payments to certain individuals or businesses affected by the conduct.^Footnote3 The Tribunal can also order various other things, depending on the provision.

Under the deceptive marketing practices provisions, the Tribunal can only order the same remedies as if we had filed the application. This means that the Tribunal can order that the conduct be stopped, the payment of an administrative monetary penalty to the government, and the publication of a corrective notice. Finally, in limited circumstances it can order that purchasers^Footnote4 of affected products get their money back. However, this remedy is limited to conduct that raises concerns under the specific provision on false or misleading representations (paragraph 74.1(1)(a)) and is not available for other types of reviewable conduct such as the greenwashing provisions (paragraphs 74.1(1)(b.1) and 74.1(1)(b.2).

1.3 Overview

We focus on protecting competition in ways that matter most for Canadians, including by investigating allegations of anti-competitive conduct. We have enforcement priorities that guide our choices and evolve over time.

Our investigations and private access applications can affect each other. The Tribunal will not hear a private access application if we already have a formal investigation, known as an inquiry, into the same matter. They also will not consider an application if we discontinued an inquiry into the matter because of a settlement.

Similarly, if a private party has already made a private access application^Footnote5 to the Tribunal this can prevent us from making our own application on the same matter.

We encourage private parties who wish to make a private access application to consider working with legal counsel. Legal counsel can help prepare your application and guide you through the process.

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Section 2: Our role in private access applications

We play a role in the process when a private party begins a private access application. As we note here, the scope of our role will vary depending on the facts of the matter.

The role we play and how we approach private access applications can generally be divided into three stages:

Applying for leave
Hearing an application
After an application is resolved

2.1 Application for leave

If you wish to make a private access application, you must first apply to the Tribunal to be granted leave. Being granted leave means you now have permission to make your private access application.

Private access applications and leave applications

In this document, a private access application is the substantive application made by a private party to the Tribunal under the sections of the Act noted above (sections 74.1, 75, 76, 77, 79, or 90.1). It is the application for the Tribunal to issue an order stopping the behaviour at issue, or to order other remedies available under those sections.

A leave application is the application to the Tribunal for permission to make a private access application.

If you are applying for leave, you must serve us with a certified copy of your application. Within 48 hours of service, we must let the Tribunal know:

whether we are already conducting an inquiry into the matter
whether we have discontinued a previous inquiry into the matter because of a settlement.

We refer to this as “making a certification.”

If either of A. or B. are true, the Tribunal cannot consider the leave application. This is also true if we have already made an application to the Tribunal ourselves on the same matter under one of the provisions discussed in this document.^Footnote6

We do not make all of our inquiries public.^Footnote7 If we certify that we have an inquiry into the same matter and later discontinue it, we must let the private applicant know. The exception is where we have discontinued an inquiry because we settled the matter.^Footnote8

The 48-hour period for us to make a certification begins when we are validly served. If the 48 hours would expire on a weekend or holiday, it expires on the next business day.

We will accept service of leave applications by email at accesprive-privateaccesscb-bc@cb-bc.gc.ca. If you are planning to apply for leave, we encourage you to contact us in advance at the same email address. This can help us make our certification faster.

We must be served with your leave application between 9:00 a.m. and 5:00 p.m.^Footnote9 If you are sending your application by email, these hours are in Eastern Time (ET).^Footnote10 If we receive an application after business hours, we will consider it received at 9:00 a.m. the next business day.

The Tribunal will consider the leave application if they are not prevented from doing so by either our certification or an application we have already filed. The Tribunal may consider the leave application in writing alone, with no formal oral hearing.^Footnote11 We can make written representations to the Tribunal on whether it should grant leave.^Footnote12

To be granted leave, a private party must meet a certain test. Different tests apply depending on the section of the Act they fall under. Here is a summary of these tests:

Private party leave - Summary of tests applied by section of the Act
Sections	Tests
Deceptive marketing practices (74.1)^Footnote13	It is in the public interest for leave to be granted.
Refusal to deal (75) exclusive dealing Tied selling and market restriction (77) Abuse of dominant position (79) Agreements that harm competition (90.1)^Footnote14	There is reason to believe that one of the following is true: The private party is directly and substantially affected in the whole or part of its business by conduct that could be subject to an order under that section of the Act, or It is in the public interest for leave to be granted.
Price maintenance (76)^Footnote15	There is reason to believe that the private party is directly affected by any conduct referred to in and which falls under this section of the Act.

2.2 Hearing a private access application

If granted leave by the Tribunal, a private party may then file their private access application to seek an order under the relevant section(s) of the Act.

We may file an intervention at any stage of the process.^Footnote16 This means that we may offer insight about the issues in the private access application. Or we may say that we support or are opposed to it.^Footnote17

The nature of our intervention will depend on the case. For example, it could include filing evidence and examining witnesses, or it could be limited to making representations to the Tribunal.

2.3 After the application is resolved

We can also be involved after the end of a private access application if the parties have reached any type of agreement that resolves the application. One type of agreement that may do this is a consent agreement, which is registered with the Tribunal and has the force of a Tribunal order.

If you are the private parties, you must serve us with copies of any such agreement. If it is a consent agreement, you must do so without delay.^Footnote18 If an application is concluded through any other type of agreement, you have 10 days to serve us with a copy.^Footnote19

We can apply to the Tribunal to vary or rescind (i.e. change or cancel) an agreement that resolves a private access application if it has or may have anti-competitive effects.^Footnote20

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Section 3: How we approach private access applications

We consider a variety of factors when deciding whether to get involved in a private access application, or whether to take actions that may impact a private access application. This section addresses our approach to:

How and when we participate in private access applications
Actions that impact private access applications

3.1 How and when we participate in private access applications

As described in section 2 above, we may choose to participate in these ways:

We may make written representations on whether the Tribunal should grant leave.
We may intervene in the private access application.

When deciding whether we will participate, we consider if it is in the public interest for us to do so. We may ask ourselves questions like:

What is the potential economic impact? For example, could the issues have a significant impact on consumers, the business community, or the Canadian economy?
What is the potential legal impact? For example, could the application decide important legal issues that would also be relevant for other cases?
Do we bring a different perspective than others already involved?
Does the private access application seem to make a strong case for appropriate remedies under the relevant provision of the Act?

When deciding whether to participate at the leave stage, along with the above questions we may also ask whether it would be better for us to resolve the issue through public investigation and enforcement. If so, we may oppose the leave application.

We will decide whether and how to participate in private access proceedings on a case-by-case basis. The specific circumstances of the case will affect our choice of which way is best for us to get involved.

We may also apply to have an agreement that resolves a private access proceeding varied or rescinded. We will seek to do so if we believe that the agreement has or is likely to have anti-competitive effects.

An example of how this could happen would be if the agreement favours one of the private parties to enter the marketplace or expand their activities, while raising barriers for other potential competitors.

3.2 Actions that impact private access applications

We may also take certain other actions that impact private access applications.

In rare cases, we may begin an inquiry within the 48 hours after being served with an application for leave. If so, we would certify to the Tribunal that we have an inquiry into the matter and that they could not consider the application for leave.

We are most likely to do this if we were already investigating the matter and where we believe it would be better for us to resolve the issue through public investigation and enforcement. To begin an inquiry, we must believe it meets the legal requirements to do so.^Footnote21

In certain rare cases, we may file our own application dealing with the conduct described in a private access application. Examples where this could occur are:

Where we are prepared to make an application and believe the matter would be better handled through public enforcement
Where it appears the private party has cast their case too narrowly
Where we believe it would be better to address the conduct through a section of the Act where private access is not available
Where a private party has received leave but has not made a private access application within a reasonable period of time, and we are prepared to make our own application

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Footnotes

Footnote 1

This Bulletin is not intended to restate the law, and it is not a binding statement of how we would proceed in a given situation. It should not take the place of legal advice. We base how we resolve and enforce each matter on the specific circumstances at hand.

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Footnote 2

For reviewable matters under Part VII.1 of the Act, the Commissioner can also take cases to the Federal Court or the superior court of a province.

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Footnote 3

For more information, see paragraph 74.1(1)(d) and subsections 75(1.2)-(1.3), 76(11.1)-(11.2), 77(3.1)-(3.2), 79(4.1)-(4.2), and 90.1(10.1)-(10.2) of the Act.

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Footnote 4

For clarity, restitution can only be distributed among the persons to whom the products were sold – except wholesalers, retailers or other distributors, to the extent that they have resold or distributed the products.

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Footnote 5

As explained later, this is the substantive application made to the Tribunal under sections 74.1, 75, 76, 77, 79, or 90.1.

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Footnote 6

See subsection 103.1(4) of the Act. Section 124.3 of the Act allows us to issue advance certificates to confirm that section 90.1 and certain other provisions of the Act will not apply to agreements between businesses to protect the environment. Subsection 103.1(7.2) of the Act prevents the Tribunal from considering a leave application for a private access application under section 90.1 of the Act if we have issued a certificate pursuant to section 124.3 of the Act that is valid and registered with the Tribunal. For more information, see our website and sections 124.3 to 124.7 of the Act.

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Footnote 7

See our Information Bulletin on the Communication of Confidential Information Under the Competition Act for more information about how we approach confidentiality, in particular Section 3.

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Footnote 8

See subsection 103.1(12) of the Act.

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Footnote 9

We must be served within our business hours. See rule 8(1)(d) of the Competition Tribunal Rules.

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Footnote 10

You can also serve us by delivering your leave application to a Bureau office. For in-person service, our business hours are 9:00 a.m. to 5:00 p.m. local time.

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Footnote 11

See rule 121 of the Competition Tribunal Rules.

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Footnote 12

According to subsection 103.1(6), a person who is served with a leave application may make written representation on whether leave should be granted. Subsection 103.1(2) requires that we at the Bureau are served with a copy of the leave application.

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Footnote 13

See subsection 103.1(6.1) of the Act.

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Footnote 14

See subsection 103.1(7) of the Act.

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Footnote 15

See subsection 103.1(7.1) of the Act.

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Footnote 16

See section 103.2 of the Act.

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Footnote 17

See section 7.7 of our Information Bulletin on the Communication of Confidential Information Under the Competition Act for information about our approach to potential disclosure of information that we have gathered through investigations in the context of a private access application.

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Footnote 18

See subsection 106.1(2) of the Act.

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Footnote 19

See subsection 106.3(1) of the Act.

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Footnote 20

See subsections 106.1(6) and 106.3(2) of the Act.

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Footnote 21

For the provisions discussed in this document, this usually means that we have reason to believe that grounds exist for the making of an order under the Act. See section 10 of the Act.

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Bulletin on Private Access to the Competition Tribunal

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On this page

Section 1: Introduction

The Competition Bureau and the Competition Tribunal

1.1 Private access

1.2 Orders of the Tribunal

1.3 Overview

Section 2: Our role in private access applications

2.1 Application for leave

2.2 Hearing a private access application

2.3 After the application is resolved

Section 3: How we approach private access applications

3.1 How and when we participate in private access applications

3.2 Actions that impact private access applications