Lenczner Slaght lawyer says in house group should revisit compliance programs in light of amendments
Ottawa is pushing more of the work of policing competition onto businesses, expanding private rights of action while preserving the threat of heavy penalties under the Competition Act, says Toronto litigator Paul‑Erik Veel. “Part of the government’s goal is to take the bureau out of some of these issues by expanding the pathways for private parties to bring claims,” he says, and that shift is changing how companies should think about risk.
A partner at Lenczner Slaght LLP, Veel focuses on class actions, complex commercial litigation, competition law and professional liability, and he sees two core pillars in the recent Competition Act amendments. On one side, provisions “make it easier for the commissioner to prove his or her case,” especially on abuse of dominance and anti‑competitive agreements, which lowers the Bureau’s evidentiary hurdles and gives it more room to pursue files it might once have left on the shelf, he says. On the other side, there is a deliberately expanded scope for private access to the competition tribunal, which opens new avenues for litigation that were essentially closed a few years ago.
Historically, private applications to the Competition Tribunal were rare for most provisions, because “there was a very high bar that meant that, empirically, there were virtually no cases brought over the last few years,” with volumes so low “you could count on one hand” how many were filed over a five‑year period, he says. That constraint has now been loosened. Private parties can bring abuse of dominance applications, and a new public‑interest pathway lets organizations or individuals with a real stake in the issue seek remedies on behalf of all affected persons, creating class‑action‑style exposure for defendants even though the proceeding is technically different.
Boards that still view competition law as a narrow price‑fixing problem are missing the point. Abuse of dominance is tailor‑made for a small, concentrated economy like Canada’s, where “there are many industries that are relatively concentrated in the hands of a relatively small number of players,” as Veel puts it. The Bureau’s poor first‑instance record on abuse‑of‑dominance cases dulled its appetite to bring new files, but with proof thresholds lowered and private parties now able to push their own theories, that reluctance is less likely to shield dominant firms that use their position aggressively in concentrated sectors from telecoms to groceries to digital platforms.
Overlaying that structural shift is a tougher penalty regime. Administrative monetary penalties now reach up to three per cent of global revenue, and a recent decision in the Commissioner’s case against Google upheld their constitutionality. The headline numbers are hard for any board to ignore, yet Veel stresses that the tribunal’s reasoning matters as much as the result. In his words, “the court or the tribunal couldn’t impose a large administrative monetary penalty on Google merely because they think Google did something bad and they want to punish Google,” since the Act ties penalties to promoting compliance rather than pure punishment, he says.
Enforcement priorities are also changing as business models become more data‑driven. Misleading advertising and drip pricing remain the low‑hanging fruit. The more complex frontier, though, lies in algorithmic pricing and data‑driven conduct, where familiar commercial tools can morph into competition problems if firms ignore how they interact with rivals. “Whereas algorithmic pricing claims aren’t fundamentally new … the difference is now everyone is doing some form of algorithmic pricing, and there are more and more opportunities for data sharing in the context of algorithmic pricing,” he says, which raises fresh questions under conspiracy, civil agreements and abuse‑of‑dominance provisions.
Layer generative AI on top of that, and regulators and businesses face an escalation in speed and scale. Veel is blunt about the risk that some companies “move fast and break things, but without thinking about the legal regimes that apply,” racing ahead with data‑collection and pricing tools that embed competition issues by design. At the same time, he sees AI as a useful internal ally for legal teams wrestling with compliance, describing how, “thanks to the joys of vibe coding,” he built in a single evening “a dashboard that you can fully use to interact with the data in a totally bespoke way” so that “anyone at the firm can use that to get their own insights from the data,” he says.
For companies under the Bureau’s microscope, these trends change how they should respond when investigators call. The instinct imported from conventional criminal practice – to say nothing and force investigators to prove their case – is often misplaced in competition matters. “The Bureau is interested in what entities tell them about the dynamics of a particular market,” Veel says, and in his experience, a transparent explanation of business conduct and market context, offered early, can help persuade the regulator that “there isn’t a real problem in that particular industry.” That does not mean every file calls for full co‑operation, but it does mean boards should view early engagement as a strategic tool rather than a sign of weakness.
His core prescriptions for in‑house counsel are direct. First, revisit competition compliance programs, which “force you to think systematically about your business and business risk and how to deal with” potential issues, and move them out of the tick‑the‑box category into live governance tools that senior leadership actually uses. Second, when potential problems arise, resist the urge to keep them in‑house unless the organization has genuine competition expertise. In firms where the general counsel’s office is broad but thin on this specialty, “it can be tempting to want to deal with the sort of early inquiries on your own,” yet the Bureau’s expectations and incentives are different enough that “it’s important to try and get external advice sooner rather than later in those cases,” he says.
