Executive Summary: Key Legal and Evidentiary Issues

• Deadlines in a broad section 11 Competition Act order were challenged by Amazon.com.ca ULC as “impossible” to meet given 90- and 120-day return periods for extensive records and written returns.

• The court addressed whether extensions to a section 11 order should proceed under Rule 8 or Rule 399 of the Federal Courts Rules and applied the Hennelly criteria for extending time.

• Evidence about Amazon Canada’s e-discovery process, including custodian identification, use of FTC litigation document collections, TAR tools, and staffing levels, was scrutinized to justify the length of the requested extensions.

• The court treated delay in a section 10 inquiry into alleged conduct contrary to section 79 of the Competition Act as prejudice to the public interest, even before any final finding on anti-competitive effects.

• Amazon Canada was found not to have acted as diligently as reasonably expected in identifying custodians, expanding review teams, and progressing document review within the original and revised timelines.

• A single new outside deadline of December 15, 2025 was set for all outstanding specified productions and written returns, with the court refusing Amazon Canada’s requests to extend certain deadlines to January 30, 2026 and March 2, 2026.

Facts and procedural background

The case involves an inquiry by the Commissioner of Competition into conduct by Amazon.com.ca ULC under section 10 of the Competition Act. The inquiry, commenced on December 17, 2024, concerns allegations that Amazon Canada is engaging in conduct contrary to section 79 through the use of the Amazon Marketplace Fair Pricing Policy, which allows Amazon Canada to penalize third party sellers if they set a price on a product or service on Amazon that is significantly higher than recent prices offered on or off Amazon. On June 16, 2025, the Commissioner brought an ex parte application under section 11 seeking an order for Amazon Canada to produce records and written returns. On July 4, 2025, the court issued the July Order requiring production of documents and written returns in Schedules I and II within 90- and 120-day deadlines. Amazon Canada then moved to vary the timelines, arguing that full compliance within those periods was impossible due to the volume of material, the overlap with discovery in United States Federal Trade Commission et al v Amazon.com, Inc., No. 2:23-cv-01495 (W.D. Wash.), and the need to review documents for responsiveness, privilege and issue coding.

Legal framework on extensions of time

Amazon Canada brought its motion under Rule 8 of the Federal Courts Rules and, in the alternative, Rule 399. The Commissioner argued that Rule 399, as the specific rule on varying ex parte orders, should prevail over Rule 8. The court held that, in this context, Rule 8 is the more specific provision because it addresses extending or abridging a period provided by the Rules or fixed by an order, while Rule 399 is broader. The court found that Amazon Canada also fell within Rule 399(2)(a) because its difficulties arose after the July Order. Applying Rule 8, the court used the Hennelly factors: continuing intention to pursue the proceeding, some merit, prejudice, and reasonable explanation for delay, subject to the overarching “interests of justice” test. The court found that Amazon Canada had an ongoing intention to respond to the July Order and that the underlying section 11 application met the statutory requirements.

Evidence on timelines, diligence and public interest

Amazon Canada relied on affidavits from counsel at Redgrave LLP and Borden Ladner Gervais LLP describing a multi-step process: identifying custodians from FTC and Canadian sources, collecting and migrating data, technically processing documents, applying analytics and technology assisted review, and conducting first- and second-level manual review, including privilege and issue coding. Amazon Canada estimated a review population of more than 5 million documents before TAR and about 2.25 million documents remaining for manual review after TAR and inclusion of document families. The court accepted that technical processing and large-scale review made the original 90- and 120-day deadlines too short. However, it found that Amazon Canada had consistently pursued an eight-month timeline from the draft order stage, even after the order was narrowed, and had managed its resources to that internal schedule. The court noted delays in identifying and questioning custodians, the relatively small number of lawyers involved more than two months after the July Order, and the lack of detailed evidence from those best placed to explain timing decisions. The court held that delay in completing the section 10 inquiry constituted prejudice to the public interest because the Commissioner acts under a statutory mandate and the inquiry concerns potentially anti-competitive conduct.

Outcome and new deadlines

The court concluded that it would be extremely harsh and unjust to require Amazon Canada to complete all production under the July Order within the original 90- and 120-day deadlines. It therefore extended to December 15, 2025 the deadlines for specifications 1(c), 2, 4 and 5 of Schedule I and specifications 2 and 3 of Schedule II. At the same time, the court rejected Amazon Canada’s requests to extend the deadlines for Schedule I specifications 1(d), 3, 6, 7, 8 and 9, and for “all remaining documents and information responsive to Schedule I and Schedule II, specification 1,” beyond December 15, 2025. In the result, December 15, 2025 became the deadline for all of the specifications still in dispute.