Discretion Without Guardrails: Canada’s Competition Experiment
When competition authorities expand their legal toolkits, the most consequential policy choices often do not appear in the statute. They emerge later—in enforcement guidelines, presumptions, and priorities that determine how aggressively agencies will deploy new powers. Canada now finds itself squarely in that phase.
Recent amendments to the Competition Act illustrate the shift. Reforms enacted in 2023 and 2024 added “excessive and unfair selling prices” as a form of abuse of dominance, extended civil review to agreements between non-competitors, expanded private access to the Competition Tribunal, and sharply increased penalties. Corporations now face fines of up to C$25 million, rising to C$35 million for repeat violations, or three times the benefit gained.
These statutory changes have pushed interpretive authority downstream. The Competition Bureau must now give operational meaning to open-ended concepts and decide how forcefully to pursue them. Comments submitted by several scholars, including a recent set from the International Center for Law & Economics (ICLE), underscore how much turns on those implementation choices, rather than on statutory text alone.
Canada’s approach combines three elements that many jurisdictions continue to debate: expanded substantive theories of harm; broader private rights of action paired with monetary remedies; and dramatically higher penalties. Together, they create a real-world test of what happens when lawmakers broaden enforcement authority without strengthening the doctrinal guardrails meant to limit error costs and over-deterrence.
That experiment deserves close attention in Washington, Brussels, and other capitals. The underlying risks—legal uncertainty, inflated error costs, and pressure to turn competition law into de facto price regulation—are not uniquely Canadian. They reflect structural tensions in modern competition policy, especially when enforcement discretion expands faster than doctrinal discipline.