Eye-Watering (But Not Unconstitutional) Penalties: Competition Tribunal Dismisses Google’s AMP Challenge

In Canada (Commissioner of Competition) v. Google Canada Corporation and Google LLC, 2026 Comp Trib 10, the Competition Tribunal dismissed a constitutional challenge to subsection 79(3.1) of the Competition Act, which allows the Commissioner of Competition to seek significant administrative monetary penalties (“AMPs”) for breaches of the Competition Act.

The decision is one of the Tribunal’s first chances to consider the new AMP ceiling introduced in 2022 and increased in 2023. Unless reversed on appeal, the Tribunal’s reasons suggest that very significant penalties remain a real possibility under the Competition Act.

Background

Under s. 79(3.1), the Tribunal may impose an AMP (in conjunction with other orders under s. 79) on a person who has engaged in anti-competitive acts that have the effect of preventing or lessening competition substantially. The maximum AMP is the greater of (a) $25,000,000 in the first instance or $35,000,000 in any subsequent instance; and (b) three times the value of the benefit gained from the impugned practice, or, if that amount cannot be determined, 3% of the person’s annual worldwide gross revenues.¹

Section 79(3.1)(b) was added following a series of statutory amendments beginning in 2022. The reformulated maximum AMPs in s. 79(3.1)(b) were intended “to better reflect the tremendous volumes of commerce that can be affected by anti-competitive […] conduct, removing arbitrary caps.”² The Future of Competition Policy in Canada explained:

In an age of ever more well-resourced and sophisticated global firms, there is a growing need to consider whether the Act’s investigative procedures, remedies and private enforcement mechanisms are fit to hold these organizations and the individuals who run them accountable. Consequences for anti-competitive conduct, whether in the form of monetary sanctions, behavioural or structural remedies or damages, must be meaningful to the parties involved, feasible to administer, and proportionate to the negative impact of the conduct identified. […] For civil AMPs (both abuse of dominance and deceptive marketing) the fixed maximums were replaced by a more principled calculation similar to the model in Australia, namely three times the benefit derived from the conduct. If such an amount cannot be reasonably determined, the maximum is instead set at 3% of annual worldwide revenues, mirroring sanctions proposed in the Digital Charter Implementation Act, 2022. Once more, the reformulation prevents the constraint of an artificial cap where a higher amount may be needed to ensure compliance rather than absorption as a cost of doing business. Despite concerns over AMPs reaching disproportionate or punitive levels, it must be stressed that the actual amount of an AMP remains set by the Competition Tribunal or court based on the circumstances and criteria set out in the law, and not simply inferred from the maximum allowable.³

In 2024, the Commissioner brought proceedings against Google Canada Corporation and Google LLC (together, “Google”) under the abuse of dominant position provisions of the Competition Act. As part of its relief against Google, the Commissioner requested an AMP under s. 79(3.1)(b).

Google brought a constitutional challenge, arguing that the Commissioner’s ability to impose an AMP that could measure in the billions of dollars amounted to a “true penal consequence” that triggered its constitutional rights under s. 11 of the Charter.As a result, Google argued that s. 79(3.1) should be declared invalid under s. 52 of the Constitution Act,and that the proceedings against it be stayed.

The Tribunal’s Decision

The protections in s. 11 apply to criminal offences, not to administrative sanctions. Google therefore had to show that the proceedings were either “criminal in nature” or that it was subject to a “true penal consequence” from the sanction, under the test set out in R. v. Wigglesworth.⁴

Proceedings Not Criminal in Nature

Google did not argue that the proceedings were “criminal in nature”, but contended that s. 79(3.1) was, in effect, a criminal fine disguised as an AMP.⁵ The Tribunal did not agree. The Tribunal followed the Supreme Court of Canada’s approach to determining whether a proceeding is “criminal in nature” by focusing on the purpose and features of the proceeding itself as set out in the Competition Act.⁶ It held that proceedings under Part VIII of the Competition Act are “civil” in nature and, in a proceeding under s. 79, there is nothing analogous to a charge, an information, an arrest, a summons, or a subsequent criminal record, all defining features of a criminal trial.⁷ The Tribunal therefore found that a proceeding under s.79 does not engage s.11 of the Charter under the “criminal in nature” branch.⁸

No True Penal Consequence

If a proceeding is not criminal in nature, it may still involve an “offence” under s. 11 of the Charter if it gives rise to a true penal consequence. Whether sanctions other than jail, such as fines or monetary penalties, are true penal consequences depends on whether they are punitive “in purpose or effect.”⁹ The factors set out in Guindon v. Canada guide the analysis, based on:¹⁰

1. The magnitude of the AMP;
2. To whom the AMP is paid;
3. Whether the AMP’s magnitude is determined by regulatory considerations rather than principles of criminal sentencing; and
4. Whether stigma is associated with the AMP.

The main issues of contention before the Tribunal were factors 1 and 3: the potential magnitude of the AMP and how it would be determined under s. 79(3.1)(b). Google estimated that an AMP levied against it under s. 79(3.1) could amount to $91 billion. This, Google argued, would constitute a “true penal consequence” such that its rights under s. 11 (and ss. 7 and 8, by extension) of the Charter would be triggered. Google further argued that its s. 11 rights had been violated when it was compelled to produce documents, data, and information to the Commissioner.¹¹

The Tribunal concluded that an AMP under s. 79 cannot amount to a true penal consequence. The Tribunal’s reasoning turns overwhelmingly on factors 1 and 3 of the Guindon test, and on a contextual interpretation of the AMP provisions as a constrained, regulatory scheme rather than a punitive one. The Tribunal treated factors 2 and 4 as weak, non‑determinative considerations.¹²

Guindon Factor 1: Magnitude

Although Google framed the case around eye-watering potential penalties, the Tribunal held that the AMP’s magnitude is not punitive in purpose or effect.¹³ Under the s. 79 AMP regime, the Tribunal may impose an AMP only after a finding of liability under s. 79 and the issuance of other remedial orders. In determining the amount of an AMP, the Tribunal must also take into account evidence of the factors in s. 79(3.2), including the effect on competition in the relevant market, revenues and profits affected by the practice, the respondent’s financial position, and compliance history.¹⁴

Further, while s. 79(3.1)(b) can set a very high ceiling for large firms, the Tribunal emphasized that it is a cap, not a default. Any AMP must be set using the market‑focused, evidence‑driven factors in s. 79(3.2) alongside the specific legislative mandate “not to punish” the respondent.¹⁵ At the same time, the Tribunal also stressed that because AMPs must act as an effective deterrent to large firms, even astronomically high figures may be required in order to ensure that AMPs are not simply absorbed as “a cost of doing business.”¹⁶

Central to the Tribunal’s rejection of Google’s position its view that the challenge was prospective: “Google’s position centres on the argument that under paragraph 79(3.1)(b), the Tribunal could impose an AMP in this proceeding that constitutes a true penal consequence.”¹⁷ No AMP had yet been imposed and the Tribunal rejected as “hypothetical” the extraordinary $91 billion figure presented in Google’s evidence. Without an actual figure against which to measure the AMP regime, the Tribunal was satisfied that the statutory provisions were constitutionally compliant. The Tribunal held that the statutory interpretation of the AMP scheme showed that it was designed to permit the Tribunal to make an order for an AMP that is proportional, considering all the circumstances, and as such the statutory purpose was to promote compliance and not punish.¹⁸

In this regard, the reasoning appears circular: the AMP would only be unconstitutional if it was set too high, but the Tribunal can avoid that outcome by taking all relevant factors into account when it sets the size of the AMP. The Tribunal did not address whether the statutory provisions could result in a punitive fine, which was the approach in Wigglesworth, where the Supreme Court assessed the true penal consequence at the commencement of the proceedings by reference to the potential jeopardy the wrongdoer faced.¹⁹

Guindon Factor 3: Regulatory vs. Criminal Sentencing Considerations

Under this factor, Google argued that the s. 79 AMP framework bears the hallmarks of a criminal fine because the Tribunal must consider factors in s. 79(3.2) that resemble corporate sentencing considerations.²⁰ The Tribunal stressed that the dividing line is whether the sanction’s purpose or effect extends beyond deterrence into denunciation and punishment for a “wrong done to society at large.”²¹ Penalties that aim to punish or denounce are considered penal, whereas and penalties that aim to deter are considered non-penal.²² While there may be some overlap, key criminal features like denunciation, retribution, and moral blameworthiness are not relevant under s. 79, and the statutory purpose is expressly non‑punitive.²³ Because the Tribunal found that AMPs imposed under s. 79 of the Competition Act were focused on deterrence, it concluded that they were non-penal.²⁴

On this issue, the reasoning is again wanting. It is unsatisfactory to say that a large penalty does not carry the stigma of a criminal penalty simply because the stated intention is that it deter rather than denounce.²⁵

Key Takeaways

1. Significant penalties under the Competition Act’s AMP regime are here to stay: if the decision holds, AMPs can theoretically reach figures in the billions without triggering the protections set out at s. 11 of the Charter for those charged with an offence. While this decision repeatedly emphasized the non-punitive nature of the AMP regime under s. 79, the Tribunal’s reasons also suggest that it will be receptive to imposing large penalties for “well resourced” entities, in light of Parliament’s purpose of ensuring that respondents cannot treat non-compliance as a cost of doing business.
2. Maximum AMP amounts are caps, not the default: the fact that AMP may reach astronomically high figures does not mean that they will inevitably do so in every case. The Tribunal stressed that the amount of an AMP is constrained by a variety of contingencies and factors, all of which it will consider before simply imposing the maximum possible dollar figure.
3. Renewed Charter scrutiny at AMP imposition stage: the decision emphasized the prospective nature of the challenge and rejected Google’s evidence of the possible magnitude of the fine, focusing on the text of the statutory scheme in defence of its regulatory purpose. The decision arguably leaves open the possibility of a renewed s. 11 challenge at the AMP imposition stage. The decision, however, is a warning to avoid setting future AMPs in a significant enough magnitude to permit a renewed challenge in any specific case.

Footnotes

1. Competition Act, RSC 1985, c C-34, s 79(3.1).

2. Canada (Commissioner of Competition) v. Google Canada Corporation and Google LLC, 2026 Comp. Trib. 10 [“Google”] ¶122.

3. Google ¶123. [emphasis in original]

4.R. v. Wigglesworth, 1987 CanLII 41 (SCC).

5. Google, ¶ 60-62.

6. Google, ¶ 64.

7. Google, ¶ 72.

8. Google, ¶ 73.

9. Google, ¶ 82.

10. Google, ¶ 80; Guindon v. Canada, 2015 SCC 41, [2015] 3 SCR 3.

11. Google, ¶ 3. 

12. Google, ¶ 251–252, 287–289, 293–300.

13. Google, ¶ 250.

14. Google, ¶ 107–108, 248,

15. Google, ¶ 107–108, 231–235, 249

16. Google, ¶ 225, 247, 249.

17. Google, ¶ 97. [emphasis in original]

18. Google, ¶ 237, 249.

19. See Wigglesworth, however the approach was rejected in Rowan where imprisonment was not a potential penalty. Rowan was cited in the decision but not on this point: “[46] There is now an established line of authority holding that the power of an administrative tribunal to impose substantial monetary penalties is to be assessed on the basis of the penalty imposed rather than on penalties that are theoretically possible.”

20. Google, ¶ 253–257.

21. Google, ¶ 77.

22. Google, ¶269.

23. Google, ¶ 258–272, 275.

24. Google, ¶ 260–272. The Tribunal also briefly assessed the Commissioner’s related jurisdictional arguments, and concluded that while the Commissioner may have jurisdiction to seek punitive AMPs under s. 79, that would be an error of law. See Google, ¶ 327.

25. This is also addressed later in the decision in the Tribunal’s analysis of Guindon Factor 4, coming largely to the same conclusion. See Google, ¶ 276-300.