ACCA Guidelines – The Bureau's New Holistic Enforcement Approach

As discussed in our bulletin of November 5, 2025, the Competition Bureau recently released its proposed new Anti-Competitive Conduct and Agreements Enforcement Guidelines (the "Draft ACCA Guidelines") for consultation on October 31, 2025, with comments required by January 29, 2026. As previewed, we are releasing a series of follow-up insights of what Canadian businesses need to know about the implications of the Draft ACCA Guidelines, both in terms of how they signal new enforcement approaches by the Bureau and how they show the Bureau interpreting the relevant Competition Act (the "Act") provisions covered by these guidelines. This bulletin provides a high-level summary of the Bureau's new holistic enforcement approach, contrasts it with its historical approach, and sets out key takeaways for compliance.

In the Draft ACCA Guidelines, the Bureau identifies a desire to create a comprehensive enforcement approach for the Competition Act's provisions dealing with civil anti-competitive conduct and agreements (together referred to as the "ACCA Provisions").¹ To create such a policy, the Draft ACCA Guidelines outline an integrated conduct-first and effects-driven approach to the Bureau's enforcement efforts that concurrently investigates conduct in relation to multiple ACCA Provisions and emphasizes that the Bureau will focus on its desired remedies at an early stage of an investigation in order to drive its investigative approach.

From Provision-first to Conduct-first

The Draft ACCA Guidelines outline what the Bureau describes as a holistic approach to investigations and enforcement that looks at all the alleged infringing conduct and alleged anti-competitive effects before identifying all the applicable provision(s) and concurrently investigating the various contraventions that could apply. Moreover, as is described in more detail below, the Bureau may look for indications that conduct is anti-competitive and/or producing anti-competitive effects and begin investigating without fully defining markets. Essentially, the Bureau plans to consider conduct that it believes may raise concerns and start its investigation without fully defining the relevant markets or determine the relevant provisions of the Competition Act that may be implicated.

The Bureau's new approach is integrated in the sense that it acknowledges that there is overlap both between the ACCA Provisions themselves as well as between the ACCA Provisions and other parts of the Act in relation to certain kinds of conduct. The Bureau plans to consider all potential provisions that may be implicated by conduct which it believes may be anti-competitive. For example, the Draft ACCA Guidelines note that the Bureau may address the anti-competitive effects of serial merger acquisitions under the ACCA Provisions rather than under, or solely under, the merger provisions and will conduct concurrent investigations under both sets of provisions before deciding the appropriate statutory approach.² The Bureau may take a similar approach for investigating anti-competitive agreements between firms using both the ACCA Provisions and the cartel provisions. While the Act's provisions regarding the duplication of proceedings prevent the Bureau from relitigating the same or substantially the same facts after an order has been issued pursuant to specified provisions and in some cases will prevent duplicative applications from being made to the Tribunal, they do not limit the Bureau's initial investigative approach.³

The Draft ACC Guidelines indicate that Bureau plans to treat market definition as a tool to assist it in analyzing market power and other competitive effects, but the Bureau may not define markets in the same way that parties do and in some cases the Bureau may not reach a final conclusion about market definition at all. The Bureau will consider proceeding with investigations based on direct evidence of market influence and anti-competitive effects alone instead of defining a market as a first step of its review. In such instances, the Bureau will work to define the relevant market(s) in parallel to its investigation that was started based solely on market effects.

Integrated Effects Analysis in Practice

As noted above, the Bureau's approach is integrated at the three levels of its analysis: conduct, statutory provision(s), and competitive effects.

To assess the competitive effects of conduct and agreements, the Bureau will consider the effects of each practice both in isolation and in combination with other practices. It will consider how any group of practices may have anti-competitive effects such as raising barriers to entry or expansion, entrenching leading incumbents, facilitating coordination, or diminishing innovation. Effects on non-price dimensions such as quality, choice, and privacy, for example, also form a substantive part of its analysis, recognizing that evidence in relation to price may be limited or static in dynamic markets, such as digital markets.

Remedy Considerations

The Draft ACCA Guidelines organize remedies into three categories: orders to stop the conduct or agreement; other orders to restore competition; and administrative monetary penalties ("AMPs"). The Bureau also outlines its position on temporary orders and consensual remedies. The Bureau's desired remedies will be considered early in assessing conduct / agreements and will shape its investigative approach.

Temporary Orders and Consensual Resolutions During an Investigation

The Bureau signals an increased willingness to seek temporary or interim orders, particularly where the harm is immediate, ongoing, and may be difficult or impossible to remedy later. The Draft ACCA Guidelines also state that the Bureau will try to achieve a consensual resolution where possible, even if it has yet to conclude its investigation. The Bureau will usually require the consensual resolution to be in the form of a consent agreement. Consent agreements are registered with the Competition Tribunal (the "Tribunal") and have the same force and effect as a Tribunal order. The Bureau has also noted that it may seek AMPs or investigative cost payments in consent agreements.

Orders Stopping the Conduct or Agreement

To stop a competition problem, the Bureau's will focus on the effect of the firm's conduct or its refusal to take certain actions, such as a refusal to supply an input that another firm needs. The Bureau will typically seek orders to stop the conduct or agreement where there is evidence that the conduct or agreement falls within an ACCA Provision. However, the Bureau may seek an order to only stop part of the alleged anti-competitive conduct or agreement where stopping only part of the conduct or agreement is enough to restore competition. An example would be instances where only select parts of an agreement harm competition.

Orders to Restore Competition

Where an order to stop the conduct or agreement would not be sufficient to remedy the harm to competition, the Bureau may seek additional behavioural and also structural remedies. The actions that such an order will require the firm to take will depend on the specific facts of the case.

Behavioral remedies are aimed at changing how a firm acts. The Bureau will consider the firm's internal processes and agreements and may require the firm to take steps such as changing contractual terms or starting a corporate compliance program. Structural orders will be considered where behavioural orders are inappropriate, such as cases where market entry barriers mean that a simple prohibition will not restore competitive conditions, or monitoring burdens and design complexity make behavioural orders unsuitable. These orders will address what the firm owns or controls. The Bureau will consider evidence of the assets or shares controlled by the firm in instances where it seeks a structural order.

Administrative Monetary Penalties

The Bureau clarifies that AMPs are intended to supplement other remedies and that AMPs must be issued alongside orders to remedy harmful conduct or agreements under the Act. In deciding whether or not to seek an AMP, the Bureau may consider the following factors:

• The relevant firm's level of cooperation;
• How willing the firm is to reach an appropriate voluntary resolution after the investigation begins;
• Whether the firm has a history of non-compliance with the Act;
• Whether the firm intended to comply with the Act or whether the firm disregarded compliance.

The Bureau notes that the remedy it would seek should interfere with the rights of persons only to the extent necessary to achieve ensure compliance with the Act.

Key Takeaways

• The Bureau's proposed approach to enforcement of the civil provisions of the Act is integrated and predominantly focused on identifying and remedying conduct and agreements that could harm competition.
• The Bureau will evaluate conduct and agreements holistically under the Act, consider concurrent applications under multiple ACCA Provisions (and other parts of the Act, such as the merger & cartel provisions), and seek to align its assessment of the overall anti-competitive impact of the alleged conduct with its remedy goals.
• The Bureau is more likely to seek interim orders if harm from the conduct risks becoming hard to remedy or risks leading to irreversible effects. This suggests firms may receive more urgent documents requests and targeted interim information production orders even while the substantive issues are being investigated or litigated.

Footnotes

1 The relevant provisions include abuse of dominance (sections 78 & 79), civil anti-competitive agreements and arrangements (section 90.1), refusal to deal (section 75), price maintenance (section 76) and exclusive dealing, tied selling and market restrictions (section 77).

2 Canada, Competition Bureau, Anti-competitive Conduct and Agreements Enforcement Guidelines, draft for consultation (Gatineau: Competition Bureau, 2025) at para 601.

3 Bill C-59 amended the Competition Act, RSC 1985, c C-34 as follows: section 78(7)(b) allows applications for the same or substantially the same conduct unless an order has been made under sections 76, 90.1 or 92; section 90.1(10)(b) allows applications unless an order has been made under sections 76, 79 or 92; sections 76(11)(b) and 98(b) both allow applications unless an order has been made under sections 79 or 90.1. Previously the same conduct could not be challenged a second time, even if the first challenge did not result in an order.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2025