Canada’s Competition Tribunal clarifies private access regime

December 2026 | SPOTLIGHT | COMPETITION & ANTITRUST

Financier Worldwide Magazine

December 2026 Issue

Canada’s competition law landscape changed meaningfully on 20 June 2025 when amendments to the Competition Act came into force which significantly expanded the rights and incentives for private parties to bring applications before the Competition Tribunal (CT). The CT is now starting to issue decisions interpreting various aspects of this new regime. In its latest judgment, Scott Cavanaugh (All Star Transportation and Tire Recycling Ltd) v. eTracks Tire Management System Inc., the CT made it clear that the expanded new regime is still based on the principle that harm to competition must ultimately be demonstrated. The CT will not allow applicants to use this process simply to litigate commercial grievances.

A wider door to the CT

Historically, private enforcement of Canadian competition law focused on claims in the civil courts for damages caused by criminal offences such as price-fixing and bid-rigging. Non-criminal reviewable matters, such as exclusive dealing, tied selling, refusals to deal and abuse of dominance, by contrast, were exclusively within the enforcement purview of the Competition Bureau, headed by the commissioner of competition. Only the commissioner could initiate applications under these provisions, which were adjudicated by the CT. In 2002, after much debate, the Competition Act was amended to allow private parties the right to bring their own enforcement applications before the CT. Importantly, though, leave was unavailable where the commissioner was inquiring into the same conduct or had already brought an application. Most critically, the private applicant had to obtain leave from the CT before it could initiate the application.

Over the years, private parties made relatively little use of the private access regime. One issue was that the right only applied to a limited number of the Competition Act’s civil provisions, principally refusal to deal, exclusive dealing and tied selling. Another important factor was that applicants were not entitled to seek damages. Rather, they were limited to the injunctive type of relief (or mandatory supply orders) generally available under the provisions. Third, the leave process represented a difficult hurdle for most cases to overcome. Although the legal threshold for an applicant to obtain leave is “reason to believe”, which is lower than a balance of probabilities, many cases were denied leave because parties failed to put forward “sufficient, credible, cogent, and objective” evidence to support the claim and not simply the “mere possibility” of success.

Recent amendments to the Competition Act, particularly those in 2022 and 2025, sought to change this calculus in three ways. First, the private right of application was extended to cover most of the Act’s civil provisions, including abuse of dominance, civil misleading representations and civil anti-competitive agreements. Second, the CT was given the authority to award private applicants and other affected persons financial compensation in an amount not exceeding the “benefit derived” from the conduct, a disgorgement-style remedy. Third, the grounds for leave were broadened to allow an applicant to obtain leave if directly and substantially affected in “the whole or part” of its business, or alternatively if the CT is satisfied that leave is “in the public interest”.

What was the Cavanaugh case about

Cavanaugh is only the second CT decision interpreting the revised leave test since the aforementioned amendments came into effect.

The claim involved the province of Ontario’s end-of-life recycling regime, pursuant to which tyre producers must collect and manage a prescribed volume of used tyres. Producers frequently retain producer responsibility organisations (PROs) to discharge those obligations, and PROs in turn hire tyre haulers and processors.

Mr Cavanaugh, a self-represented, licensed tyre hauler, entered into a hauling agreement with eTracks, a registered PRO, in early 2023. The agreement set the rates eTracks would pay for hauling services and expressly allowed Mr Cavanaugh to work for others. eTracks required its service providers to use its proprietary tracking platform, eSRP, which it made available free of charge but only to providers supporting its Ontario operations. The market was not small. As of April 2026, there were 218 registered tyre haulers in Ontario, about 100 of which had commercial relationships with eTracks, all on a non-exclusive basis.

Mr Cavanaugh alleged that eTracks changed its operational and allocation arrangements unilaterally, reducing his work and income from September 2023 onward. In February 2026, eTracks gave notice terminating the agreement on 30 days’ notice and deactivated his platform account.

Mr Cavanaugh sought leave to apply to the CT for relief under the Competition Act’s refusal to deal provision (section 75) and the exclusive dealing and market restriction provision (section 77), which apply to the conduct of “suppliers” of “products” and which require the commissioner (or a private applicant as the case may be) to, among other things, prove that the conduct in question had a negative impact on competition (in the case of refusal to deal an “adverse effect on competition” and in the case of exclusive dealing or market restrictions, a “substantial lessening of competition”).

Mr Cavanagh argued that participation in the “eTracks framework”, including the contract, platform access and allocation of volumes to processors, was a “product” he had been denied, and that eTracks controlled which haulers could access commercial volumes. He requested reinstatement to the network, an order compelling eTracks to accept him as a customer, a monetary order, a prohibition order and interim relief.

The CT’s decision and reasoning

Although Mr Cavanaugh referred generally to the “public interest”, the CT concluded that his case turned on the “affected business test” branch of the leave test, and that Mr Cavanagh had to prove, with sufficient credible evidence, both that he was directly and substantially affected in his business and that eTracks’ conduct could be the subject of an order under sections 75 or 77.

The decisive, and in the CT word, “fatal” problem was that eTracks did not supply products to Mr Cavanaugh but was a potential customer for his services. As such, sections 75 and 77 did not apply since they govern the conduct of suppliers. As the CT explained, these provisions “do not function as a vehicle for an applicant to secure the business of a given customer, regardless of how significant that customer may be for the applicant”. The application asked the CT to “invert the operation of those provisions” because Mr Cavanaugh did not allege an inability to obtain supply; he alleged the loss of a major client. The CT rejected the attempt to define access to the eTracks framework as a product: the impacts Mr Cavanagh described flowed from “the benefits that flowed from a commercial agreement”, not from the supply of a product. Even apart from that, the CT held that Mr Cavanagh’s claim failed because he offered no evidence of an adverse effect on competition, which is an essential element of both provisions. With more than 200 haulers in Ontario and only about 100 holding non-exclusive agreements with eTracks, he did not explain how terminating a single non-exclusive agreement could affect competition. As the CT concluded: “This is a commercial dispute between two private parties that does not fall under the jurisdiction of this Tribunal.” The application was dismissed with costs.

Implications

Parliament intended the 2025 amendments to encourage private parties to bring cases before the CT to supplement public enforcement of Canadian competition law. That said, the Cavanaugh decision confirms that the expanded gateway is not a mere replacement for commercial litigation. The CT’s key question regarding a private application is whether the application is truly about competition. Private applicants that fail to demonstrate with sufficient credible evidence that their claim involves a substantial and genuine competition law dispute will be denied leave to proceed; the private application regime under the Competition Act is not a forum for what is, in essence, a commercial dispute between two parties.

Mark Katz is senior counsel and Umang Khandelwal and Claire Millard are associates at Davies Ward Phillips & Vineberg LLP. Mr Katz can be contacted on +1 (416) 863 5578 or by email: mkatz@dwpv.com. Ms Khandelwal can be contacted on +1 (416) 367 7519 or by email: ukhandelwal@dwpv.com. Ms Millard can be contacted on +1 (416) 945 6179 or by email: cmillard@dwpv.com.

Mark Katz, Umang Khandelwal and Claire Millard

Davies Ward Phillips & Vineberg LLP