Overview
On July 15, 2026, the Competition Bureau (the “Bureau”) released its proposed Cartel Enforcement Guidelines (the “Guidelines”) for public consultation. The Guidelines, intended to improve transparency and predictability, provide the Bureau's updated enforcement framework for sections 45 to 49 of the Competition Act (the “Act”), consolidating and modernizing guidance previously contained in the Bureau's Competitor Collaboration Guidelines and Enforcement Guidelines on wage-fixing and no-poaching agreements. The Guidelines are intended to operate alongside the Bureau's proposed Anti-Competitive Conduct and Agreement Guidelines, which govern the Act's civil reviewable conduct provisions.
The Guidelines are intended to reflect recent amendments to the Act, including the introduction of wage-fixing and no-poaching offences, the removal of the previous $25 million cap on fines for section 45 offences, which permits courts to impose substantially higher fines than were previously available, and the introduction of an environmental certification regime intended to provide greater certainty for qualifying pro-environmental collaborations by exempting certified agreements from sections 45-49 and 90.1 of the Act. More significantly, they provide the Bureau's most comprehensive articulation to date of its approach to enforcing Canada's criminal cartel provisions. Part 1 addresses the relationship between the Act's criminal and civil provisions, Parts 2 and 3 focus on agreements and coordinated conduct, Part 4 provides detailed guidance on the cartel provisions and available defences, and Part 5 contains practical examples illustrating how the Bureau intends to apply its analytical framework in practice.
Set out below are the key takeaways arising from the proposed Guidelines.
Expanded Guidance on Agreements and Coordinated Conduct
Parts 2 and 3 of the Guidelines provide expanded guidance on one of the most fundamental questions arising under the cartel provisions: when does conduct between businesses amount to an agreement? The Bureau emphasizes that "[a]t the root of the Act's cartel offences in sections 45 through 49 is an agreement, arrangement or conspiracy" and that the central question is whether the parties reached a "meeting of the minds." According to the Bureau, a meeting of the minds occurs when two or more parties "reach a consensus regarding their intentions" and agree "to act predictably for a certain purpose."
Notably, the Guidelines state that a meeting of the minds "can be reached regardless of the degree of its formality or enforceability" and may be established through either explicit or tacit understandings. The Guidelines state that tacit agreements may be inferred from a course of conduct and reiterate that the Bureau will enforce the cartel provisions "regardless of the form the agreement takes." In doing so, the Bureau is signaling that it will continue to look beyond written agreements and assess the broader factual circumstances surrounding interactions between competitors.
Expanded Discussion of Conscious Parallelism
The Guidelines also provide a more detailed discussion of the distinction between unlawful coordination and "conscious parallelism." The Bureau expressly recognizes that businesses may independently adopt similar conduct in response to market conditions or the actions of competitors without reaching an agreement. Indeed, the Guidelines state that "conscious parallelism by itself is not considered an agreement" and provide examples including circumstances where one business raises prices expecting a competitor to follow, or where a business independently responds to a competitor's price increase by raising its own prices. While the Bureau confirms that such conduct, standing alone, does not establish an agreement, it emphasizes that parallel conduct may nevertheless support an inference of a "meeting of the minds" where it is accompanied by facilitating practices. The Guidelines identify shared algorithms, shared platforms or tools, practices that allow competitors to monitor one another's prices or conduct, and contractual provisions such as most-favoured-nation clauses as examples of conduct that may facilitate coordination and support an inference of agreement. This discussion highlights the Bureau's continued focus on the role that information flows, technological tools and transparency mechanisms may play in facilitating coordination among market participants.
The Bureau also cautions competitors and employers against sharing commercially sensitive information, including information relating to employment terms and conditions, where doing so could raise competition concerns. Although the Bureau's ability to rely on circumstantial evidence is not new, the Guidelines provide additional guidance regarding the types of evidence that may support an inference of agreement, particularly where competitors engage in information sharing or employ tools and practices that facilitate coordination. The Guidelines therefore offer greater insight into how the Bureau may assess whether a "meeting of the minds" exists in the absence of direct evidence of an agreement.
Expanded Guidance on Wage-Fixing and No-Poaching Agreements
One of the most significant additions to the Guidelines is the Bureau's expanded guidance on subsection 45(1.1), which prohibits certain wage-fixing and no-poaching agreements between employers. Building on its earlier Wage-Fixing and No-Poaching Enforcement Guidelines, the Bureau now incorporates this guidance directly into its broader cartel enforcement framework.
The Guidelines provide detailed discussion of several concepts that received limited treatment in the Bureau's pre-2023 competitor collaboration guidance, including "employers," "affiliation," and the existence of an employment relationship for the purposes of subsection 45(1.1). The Bureau also devotes greater attention to the scope of "terms and conditions of employment," reinforcing its view that the provision extends beyond wages alone and may capture a broader range of employment-related arrangements.
The Guidelines also provide additional clarity regarding no-poaching agreements. The Bureau reiterates that subsection 45(1.1)(b) applies to agreements between employers not to solicit or hire "each other's employees," reinforcing its view that reciprocity remains a key feature of the offence. This discussion provides useful confirmation that the Bureau continues to focus on reciprocal hiring restraints when assessing potential violations of subsection 45(1.1)(b).
Expanded Guidance on Statutory Defences and Exceptions
Part 4 of the Guidelines provides expanded guidance on the statutory defences and exceptions available under the cartel provisions. Most notably, the Bureau devotes considerable attention to the ancillary restraints defence ("ARD"), recognizing that certain otherwise restrictive provisions may be necessary to facilitate legitimate business transactions or collaborations. The Bureau notes that "some desirable business transactions or collaborations require explicit restraints on competition, to make them efficient, or even possible" and that such restraints may be more appropriately assessed under the Act's civil reviewable matters provisions rather than the criminal cartel provisions.
The Guidelines provide several examples of restraints that may qualify for the ARD, including non-compete clauses in share or asset purchase agreements, wage-fixing or no-poaching provisions ancillary to mergers, joint ventures or strategic alliances, and certain restrictions associated with joint venture arrangements. These examples provide useful insight into the types of conduct that the Bureau generally views as potentially ancillary to a broader legitimate agreement.
Notably, the Bureau provides greater transparency regarding how it intends to distinguish a legitimate ancillary restraint from a naked restraint on competition. The Guidelines state that parties seeking to rely on the ARD must demonstrate that the restraint is not the object of their cooperation, but is "functionally incidental and subordinate" to a broader agreement. The Bureau further explains that it is not sufficient to simply assert that the parties would not have entered into the broader agreement absent the restraint, or that the restraint was negotiated alongside the broader agreement. The restraint must instead be directed at promoting or facilitating the objective of the broader agreement.
The Guidelines also provide detailed guidance on what it means for a restraint to be "reasonably necessary" to achieve that objective. With respect to this requirement, the Bureau indicates that it may consider the duration, subject matter and geographic scope of a restraint, including whether it extends beyond the products, employees or activities covered by the collaboration. The Bureau also clarifies that while a restraint need not be the least restrictive alternative available, parties may be required to explain why significantly less restrictive and practical alternatives were inadequate or impractical. Where comparable results could have been achieved through reasonably available and materially less restrictive means, the Bureau states that it may conclude that the restraint was not reasonably necessary.
Beyond the ARD, the Guidelines consolidate guidance on a number of other statutory defences and exceptions, including export agreements, agreements between affiliates, specialization agreements, regulated conduct, arrangements authorized under the Canada Transportation Act, and agreements related to protecting the environment. By bringing this guidance together in a single document, the Bureau provides businesses with a more comprehensive framework for assessing when conduct that might otherwise engage the cartel provisions may fall outside criminal enforcement.
Expanded Guidance on Sections 46 to 49
One of the more notable features of the Guidelines is the Bureau's expanded treatment of sections 46 to 49 of the Competition Act. As noted in the Preface of the Guidelines, the update provided an opportunity not only to consolidate existing guidance, but also to "add enforcement guidance" beyond subsections 45(1) and 45(1.1). As a result, the Guidelines provide substantially more detail on a number of cartel-related provisions that historically received limited attention in Bureau guidance. In particular, the Bureau provides expanded guidance regarding:
- Foreign-directed conspiracies (section 46): The Guidelines include a dedicated discussion of the prohibition against implementing foreign-directed conspiracies in Canada, including the elements of the offence, available defences and exceptions, and the remedies available for violations. The expanded discussion provides greater insight into the Bureau's enforcement approach where anti-competitive conduct originates outside Canada.
- Bid-rigging (section 47): The Guidelines provide expanded guidance on the elements of the offence, the types of prohibited agreements, and the statutory exceptions available under section 47, providing a more comprehensive statement of the Bureau's approach to enforcing Canada's bid-rigging provisions. Notably, the Guidelines indicate that the Bureau considers the offence capable of applying to auction processes, potentially extending the reach of section 47 beyond traditional calls for bids and tenders. The Guidelines provide limited guidance regarding this position, however, particularly given the potentially important distinctions between traditional bidding and tendering processes and certain auction formats, including dynamic auctions in which participants may observe and react to competing bids as the process unfolds.
- Professional sports agreements (section 48): The Guidelines contain dedicated guidance on agreements that limit opportunities for individuals to participate in or negotiate with professional sports organizations. Although section 48 is infrequently litigated, its inclusion reflects the Bureau's objective of providing a comprehensive statement of its approach to the cartel provisions.
- Agreements between federal financial institutions (section 49): The Bureau also provides expanded guidance regarding agreements relating to interest rates, loans and banking services between federal financial institutions, together with a discussion of available remedies. This guidance offers financial institutions greater insight into how the Bureau intends to approach this specialized provision.
Expanded Guidance Through Practical Examples
A notable feature of the Guidelines is the Bureau's extensive use of hypothetical examples. In fact, Part 5 contains thirteen examples covering a broad range of conduct, including market allocation agreements, supply restrictions, dual-distribution arrangements, franchise systems, joint ventures, wage-fixing agreements, no-poaching agreements, foreign-directed conspiracies, bid-rigging, and agreements involving financial institutions.
The examples bring a practical dimension to the Bureau's analytical framework, illustrating how it intends to assess common commercial arrangements and distinguish between conduct that may attract criminal scrutiny and conduct that may instead be reviewed under the Act's civil provisions. For businesses and their advisors, these examples may prove to be among the most practical aspects of the Guidelines, providing valuable insight into how the Bureau is likely to apply its enforcement framework to real-world commercial and employment-related arrangements.
The proposed Guidelines represent an important milestone in the Bureau's ongoing modernization of its cartel enforcement framework. With the consultation period remaining open until September 13, 2026, stakeholders have an opportunity to provide feedback before the Guidelines are finalized.
If you have questions about the Guidelines, please contact any member of Fasken's Competition, Marketing & Foreign Investment group. Our group has significant experience advising clients on all aspects of Canadian competition law.
