Competition Bureau's Guidance On Competitor Collaborations And Anticompetitive Agreements

Over the last number of weeks we have been exploring issues raised by the Competition Bureau's (the "Bureau") proposed new Anti-Competitive Conduct and Agreements Guidelines (the "Draft ACCA Guidelines"). Those discussions can be reviewed in our bulletins of November 5, 2025, December 9, 2025, December 16, 2025 and February 4, 2026.

This bulletin provides a high-level summary of the Bureau's proposed approach regarding non-criminal collaborations and agreements, contrasts it with earlier guidance and practice, and sets out key takeaways for compliance. Specifically, the Bureau clarifies how it plans to interpret the anti-competitive purpose requirement in the anticompetitive agreements provision, which applies in order to capture agreements between persons who are not competitors within the ambit of section 90.1. It also highlights potential anti-competitive risks of joint ventures with competitors, expands on the anti-competitive consequences of information sharing and outlines the provisions it may use to investigate non-compete clauses.

Determining Whether there is an Anti-Competitive Purpose in Agreements

One significant recent amendment to the Competition Act (the "Act") with respect to civil competitor collaborations is that the Act now permits the Bureau to challenge anticompetitive agreements between persons who are not competitors. Specifically, the civil competitor collaboration provision at section 90.1 of the Act was significantly expanded in its scope to cover agreements between firms that do not operate in the same market, where a "significant purpose" of an agreement or part of an agreement is to prevent or lessen competition, and where such agreements do in fact substantially lessen or prevent competition.

The Draft ACCA Guidelines provide guidance on what the Bureau will consider in determining whether a "significant purpose" of an agreement or part of an agreement is to prevent or lessen competition. However, the Bureau's logic on this point is somewhat circular. Specifically, the Bureau indicates that, "If an agreement has the effect of substantially harming competition we may presume it has a significant purpose to prevent or lessen competition in a market in the absence of credible evidence to the contrary." In other words, if the Bureau finds that an agreement between persons who are not competitors leads to substantial competitive harm, it will presume that the agreement contains an anticompetitive purpose unless it can be convinced otherwise.

The Draft ACCA Guidelines therefore introduce a rebuttable presumption that businesses may need to justify their agreements with persons who are not competitors to show that they did not enter into the agreement with anticompetitive motivations. While the Bureau's position may ultimately prove not to be correct at law, unless and until the Bureau updates its position or jurisprudence clarifies what is required to find that a "significant purpose" of an agreement is to prevent or lessen competition, businesses should be aware that they may need to demonstrate the absence of an anti-competitive purpose in respect of agreements with persons who are not competitors that could impact competition.

Risks in Competitor Collaborations

The Draft ACCA Guidelines identify four main ways that non-criminal agreements between competitors can harm the competitive process and thus be subject to further investigation by the Bureau:

1. By directly limiting independent competition;
2. By reducing incentives to compete independently;
3. By facilitating coordination; and
4. By facilitating other forms of anti-competitive conduct

Joint ventures are explicitly referenced in the ACCA Guidelines as the type of relationships that can raise issues under the first two noted concerns.

Navigating Competitor Joint Ventures

While the Bureau's existing guidelines on competitor collaborations offer some guidance in relation to competitor joint ventures, the Draft ACCA Guidelines provide an increased focus on joint ventures between competitors and their potential for facilitating anti-competitive behaviour pursuant to the concerns identified above.

The Draft ACCA Guidelines highlight that, when assessing whether a joint venture has reduced an individual firms' ability to compete independently, the Bureau will consider the following questions:

• Whether there are direct restrictions on the firms competing with each other imposed by the joint venture, and whether those are important aspects of competition?
• Whether the firms agreed to compete or conduct business exclusively through the joint venture / collaboration (thus removing themselves as independent competitors with each other)?
• Whether the assets contributed to the joint venture prevent the firms from competing independently with each other?

Similarly, when assessing whether a joint venture has reduced incentives to compete independently, the Bureau will consider the following questions:

• Whether there is a financial interest in the firms collaborating with each other?
• Whether any of the firms have financial interests in each other?
• Whether collaborating firms profit when other collaborating firms make sales?
• Whether the parties are competing independently outside of the collaboration, and whether they would have done so absent the joint venture?

The direct joint venture concerns in the Draft ACCA Guidelines imply that the Bureau is focused on the potential anti-competitive effects of joint ventures. When navigating a joint venture with a competitor, businesses should pay extra caution as to whether the joint venture risks harming competition, and whether the joint venture can be structured in a manner that maximizes the individual firms' abilities and incentives to continue to compete independently outside of the joint venture. Insofar as the joint venture is a vehicle to bring new or better products to market, or to do so more swiftly or efficiently, those factors should be noted and reflected in contemporaneous documents.

Expanded Scrutiny on Information Sharing

The Draft ACCA Guidelines expand on the anti-competitive consequences of information sharing. The Bureau continues to warn that information sharing between competitors can comprise anti-competitive conduct, which the Bureau may target conduct under the abuse of dominance or civil anti-competitive agreement provisions of the Act. Specifically, the Bureau notes that the sharing of competitively sensitive information raises significant risks as it increases opportunities for coordination and reduces competitive rivalry.

The Draft ACCA Guidelines offer examples of what may constitute competitively sensitive information shared between competitors, including pricing information, quantities produced, sold or purchased, costs, trading terms, strategic plans, marketing strategies and investment or capacity decisions. While businesses may not ordinarily consider sharing some of this information to be competitively problematic, caution must be exercised when considering sharing information, even when the information is not shared directly to a competitor.

One type of information sharing that the Bureau identifies as raising potential concerns is sharing commercially sensitive information with a third-party algorithm that provides pricing recommendations to industry participants. Such information could lead to coordinated outcomes without any direct information sharing between competitors. In a footnote, the Draft ACCA Guidelines note that even that fact that certain competitors are using a particular pricing algorithm could be commercially sensitive information, as it could encourage competing firms to all use the same pricing algorithm.

Non-Compete Clauses and Expanded Potential for Bureau Challenge

The Draft ACCA Guidelines broaden the set of provisions that could consider the impact of non-compete clauses. The Bureau's existing guidelines suggest that non-compete clauses which arise in the context of a merger would most be reviewed under the merger provisions. The previous guidelines note that there could be "rare instances" where such provisions would be reviewed under the civil competitor collaboration provision at section 90.1 of the Act (such as when the effects of a non-compete clause that is part of a merger were not certain at the time the merger review occurred) or under the Act's criminal conspiracy provisions.

In the Draft ACCA Guidelines, by way of update, the Bureau explains that, while it "generally" assesses non-compete clauses that are part of a merger under the merger provisions, there may be cases where such clauses are reviewed pursuant to the criminal cartel provisions and the ACCA provisions, without any reference to such reviews being "rare instances". Specifically, such provisions may be reviewed under the ACCA provisions in cases where the effects of a non-compete clauses were uncertain at time of the merger review and in cases when non-compete clauses are used "in other [non-merger] contexts" when the Bureau believes the cartel provisions do not apply. When assessing non-compete clauses under the ACCA provisions, the Bureau will consider:

• the products subject to the clause;
• the geographic scope of the clause;
• the parties subject to the clause; and
• the duration of the clause.

Key Takeaways for Businesses in Canada

• The Bureau's default position in the Draft ACCA Guidelines is that any non-criminal agreement that substantially prevents or lessens competition, or is likely to do so, may contravene the anti-competitive agreements provision at section 90.1 of the Act. Businesses who have historically given limited thought to the potential anticompetitive effects of business arrangements with persons who are not competitors should start documenting their non-anti-competitive purposes for entering into such arrangements, in particular where such arrangements may have the impact of harming competition.
• The Bureau is demonstrating an increased focus on analyzing whether joint ventures harm competition. Businesses navigating existing joint ventures or entering into new ones should be cautious of the potential anticompetitive effects of such arrangements.
• The Bureau is broadening its view of what may constitute competitively sensitive information sharing that could violate one or more ACCA provisions. Parties should carefully consider any joint or unilateral information sharing activities, and whether they raise potential competition law concerns.
• The Bureau has signalled that it may be more open to challenging non-compete clauses using the ACCA provisions, so businesses should carefully consider the competitive implications of non-compete arrangements that form part of larger deals or arrangements.

While the Draft ACCA Guidelines are currently published only for public consultation, they provide the most up-to-date information on the Bureau's current enforcement policy and approach to analyzing pricing practices under the ACCA provisions. If you have any questions regarding the ACCA Guidelines, please contact McMillan's Competition and Antitrust Group.

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.

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