Canada tests limits with increased use of production orders

August 2026  |  COVER STORY | SPECIAL REPORT: COMPETITON & ANTITRUST

Financier Worldwide Magazine

August 2026 Issue

Section 11 of the Canadian Competition Act allows the Competition Bureau to secure court orders requiring the production of records or written responses (and even oral examinations) to support its ongoing civil investigations. This includes investigations for unilateral conduct (such as abuse of dominance), anti-competitive collaborations and deceptive marketing, among other provisions.

Section 11 orders are typically sought ‘ex parte’, meaning the Bureau need not give notice to the respondent, who has no right to appear before the application judge. In practice, where ongoing communications exist, the Bureau normally shares a draft order with impacted parties and provides a short comment period.

Although respondents cannot make direct submissions, the Bureau’s practice is to inform the judge of any concerns raised and provide related correspondence, allowing respondents to indirectly address concerns about a proposed order.

The Bureau’s use of its section 11 powers is growing. Its annual report on the fiscal year ended March 2025 (the most recent report available) reports that the Bureau obtained 13 section 11 orders in its 2025 fiscal year, compared to six in its 2024 fiscal year and only three in its 2023 fiscal year.

This growth in part reflects the Bureau’s increasing resort to section 11 orders in a wide variety of contexts. For example, section 11 orders may be used to supplement existing disclosure and production mechanisms contained within the Act’s merger review regime.

In the acquisition by Broadridge Software Limited of Kyndryl Canada Limited, the Bureau secured section 11 orders against parties to a merger even though it had access to (but did not use) its statutory powers to issue a supplementary information request (akin to the second request in the US).

When this was challenged by the impacted parties (indirectly through advocacy to the Bureau in pre-issuance dialogue), the reviewing court held that nothing in the relevant statutory language limited the Bureau’s ability to also use its section 11 powers in the merger review context.

Section 11 orders are also not just targeted at the parties directly involved in alleged anticompetitive conduct; they may be targeted at third parties as well. As part of its investigation of the Broadridge-Kyndryl merger, the Bureau subsequently secured section 11 orders mandating production from Canada’s six largest financial institutions on the basis that they would have been actual or potential customers of the merging parties.

Section 11 orders have long been controversial due to the significant burden and costs they impose. Such orders often require respondents to search for and submit “all records” relating to specified categories and respond in accordance with complex instructions. Compliance may require engaging both external counsel and data management providers for search, review, production and certification. Costs can be in the millions of dollars and vary depending on the scope of the order.

It is not surprising therefore that the targets of section 11 orders are now increasingly launching court challenges regarding the Bureau’s use of this power.

In this article, we discuss two recent decisions of interest of Canada’s Federal Court of Appeal: Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (2026) and Empire Company Limited v. Canada (Attorney General) (2025).

Canada (Commissioner of Competition) v. Amazon.com.ca, ULC

In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC, the Bureau sought a section 11 order requiring Amazon.com.ca, ULC and certain affiliates to produce extensive transaction data across more than 30 data fields for products in four broad categories as part of an inquiry into alleged ‘fake reviews’.

Amazon objected that the request was excessively broad, claiming billions of products were in scope. The application judge declined to issue the requested data production order because the Bureau failed to adequately consult with Amazon or explain the scope of the request, and the Bureau appealed.

Prior case law established that, before issuing a section 11 order, an application judge must be satisfied that: (i) a bona fide inquiry (a formal step in the Bureau’s investigation) is being made; (ii) the Bureau has provided full and frank disclosure (which is important having regard to the ex parte nature of the proceedings); (iii) the requested information is relevant to the inquiry; and (iv) the scope is not excessive, disproportionate or unnecessarily burdensome.

In the Amazon case, the Court of Appeal focused on the last two criteria. It confirmed that, pursuant to section 8 of the Canadian Charter of Rights and Freedoms, Amazon had a privacy interest in its records and that the application judge retains residual discretion to refuse a production order where it would be excessive relative to what is “reasonably required for purposes of the inquiry” including where it would be “overbroad given the nature of the inquiry or unjustifiably intrudes on the privacy interests of the target”.

The court rejected the Bureau’s argument that it is entitled to receive all materials that “might shed light” on conduct contrary to the Act. At the same time, the court expressed some reservations that prior case law may have gone too far in holding that section 11 production orders should be limited by the efforts or costs imposed on the respondent, the difficulty of responding or the respondent’s economic interests.

Ultimately, in this case, the court held that the Bureau had failed to demonstrate that the data request was reasonable having regard to the nature of the inquiry because of the uncertain scope of the request – including because the application judge did not know the extent of what the Bureau sought to have produced under the order.

The decision confirms that the Bureau must provide sufficient precision for the application judge to relate the nature of the inquiry to the scope of the information requested and assess the magnitude of the intrusion on the respondent’s privacy. The more expansive a document or data request, the more explanation the Bureau may need to provide regarding its relevance.

Empire Company Limited v. Canada (Attorney General)

In Empire Company Limited v. Canada (Attorney General), Empire Company Limited and Sobeys Inc. sought judicial review of the Bureau’s decision to commence an inquiry under the Act.

The inquiry related to the use of restrictive covenants and exclusivity clauses in leases entered into in the Halifax Regional Municipality, to determine whether such practices constituted an abuse of dominance under the Act. This inquiry served as the basis for a subsequent section 11 order seeking documents relating to this subject matter.

Empire and Sobeys argued that the Bureau could not have “reason to believe” that grounds existed for an order under section 79, and that the decision appeared to have been made for an improper purpose or based on irrelevant considerations. The attorney general filed a motion to strike the application on the grounds that the initiation of the inquiry did not affect any legal rights, impose legal obligations or cause prejudicial effects.

The Federal Court, Trial Division granted the attorney general’s motion to strike at first instance, emphasising that the decision to commence an inquiry is simply a procedural step that gives the Bureau access to formal investigative powers under section 11. It does not, in and of itself, have any impact on the targets of the inquiry.

The court also noted that the “reason to believe that grounds existed for an order” standard in subsection 10(1) of the Act is a relatively low bar, requiring only “sufficient credible evidence to give rise to a bona fide belief”.

Absent evidence of bad faith or exceptional circumstances, the Bureau benefits from a presumption that actions taken under the Act are bona fide and in the public interest. Finally, the court found that the application was premature because Empire and Sobeys had adequate, effective recourse to challenge any subsequent section 11 order.

On appeal, the Federal Court of Appeal upheld the Trial Division’s decision and agreed that initiating an inquiry is merely a “preliminary administrative step that gives the Commissioner access to the formal investigative powers in the Act and those powers are subject to judicial oversight”.

Conclusion

As the Bureau expands the extent and scope of its use of section 11 powers, businesses operating in Canada will increasingly have to grapple with the burdens that such orders impose.

To minimise burden to the extent possible, businesses may wish to consider reviewing their document retention policies, including with respect to electronic messages and ensuring that all formats of “records” (including electronic messages and video recordings) enable the preservation of privilege.

The Empire decision suggests that successful challenges to the Bureau’s decision to initiate an inquiry (which in turn enables the Bureau to seek a section 11 order) will likely be rare and limited to only exceptional circumstances.

Parties may have a greater chance of success, however, in challenging the breadth of such orders. In keeping with the Amazon decision, the Bureau must provide sufficient precision for the application judge to relate the nature of the inquiry to the scope of the information sought and assess the magnitude of the intrusion on a respondent’s privacy interest.

 

Mark Katz is senior counsel and William Rooney is an associate at Davies Ward Phillips & Vineberg LLP. Mr Katz can be contacted on +1 (416) 863 5578 or by email: mkatz@dwpv.com. Mr Rooney can be contacted on +1 (416) 367 7595 or by email: wrooney@dwpv.com.

© Financier Worldwide

BY

Mark Katz and William Rooney

Davies Ward Phillips & Vineberg LLP

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