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Competition - Inquiry. Canada (Commissioner of Competition) v. Amazon.com.ca, ULC
In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denying to the Commissioner of Competition of "an order requiring the respondents to produce transaction data about certain products on their online store" (under s.11 ['Order for oral examination, production or written return'] of the Competition Act).
Here the court contrasts the evidentiary disclosure role of civil discovery rules with those of this Competition Act s.11 investigative-inquiry provision:[42] The Commissioner’s first submission is that the Application Judge inappropriately relied on principles exclusive to discovery in civil proceedings, conflating investigation with litigation. The Commissioner relies on this Court’s decision in Canada (National Revenue) v. Cameco Corporation, 2019 FCA 67 as authority for the proposition that proportionality principles relevant to civil discovery do not apply to investigations.
[43] The Commissioner is correct that concepts arising from discovery in civil litigation cannot be imported without qualification or modification into the investigative process under section 11 of the Competition Act. These are fundamentally different processes which have different purposes, governing rules and outcomes. Discovery in civil litigation allows for the production of information and documents relevant to the matters at issue, defined by reference to the pleadings: see Mancuso v. Canada (National Health and Welfare), 2015 FCA 227 at para. 17; AstraZeneca Canada Inc. v. Apotex Inc., 2008 FC 1301 at para. 6 [AstraZeneca]. Material is relevant if it facilitates proof of the case of the party seeking discovery or will assist in undermining that of the adversary; again, determined by reference to the pleadings: Madison Pacific Properties Inc. v. Canada, 2019 FCA 19 at paras. 22-23, citing Canada v. Lehigh Cement Limited, 2011 FCA 120 at paras. 24-25, 34-36; AstraZeneca at para. 12, citing Eli Lilly Canada Inc. v. Novopharm Ltd., 2008 FCA 287 at paras. 56, 63-64.
[44] Section 11 orders become available to the Commissioner at the investigatory stage, and are often issued before the Commissioner has applied for an order under one of the substantive provisions of Part VII.1 or VIII of the Competition Act: Pearson at para. 47. A section 11 application requires only that an inquiry is underway and that the target likely has relevant information. The reason to cause an inquiry under subsection 10(1) is with "“a view of determining the facts”". Applying discovery principles to limit what goes into a production order would undermine one of the fundamental purposes of section 11, which is to allow the Commissioner to collect relevant information as part of their enforcement powers.
[45] That being said, the Federal Court did not apply civil litigation concepts, including proportionality, to the investigative process under section 11. The reasons in Pearson and the transcript of the hearing in this matter, viewed in their entirety, make clear that the Application Judge directed himself to the investigative stage of the proceedings and appropriate principles under section 8 of the Charter.
[46] In civil litigation, proportionality means that the processes employed, including discovery, must be proportionate to the claim, determined with reference to "“the nature of the issues engaged; the amount of money involved; the time reasonably necessary to resolve the issue; the complexity of the issues and the overall cost of the litigation”": Szeto v. Dwyer, 2010 NLCA 36 at paras. 53-54, cited in Hryniak v. Mauldin, 2014 SCC 7 at para. 31 [Hryniak]; see also Federal Courts Rules, s. 3(b) and Viiv Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122 at para. 18.
[47] The Application Judge did indeed express concerns with the Data Request not being "“proportionate”", quoting paragraph 32 of Hryniak, which called for a culture shift in civil litigation requiring judges to "“actively manage the legal process in line with the principle of proportionality”": Decision, Hearing Transcript, p. 7. Hryniak concerned efficiency and access to justice in civil litigation, not investigative orders or regulatory law.
[48] However, in both this proceeding and Pearson, the Application Judge also referred to this Court’s decision in RBC, a case discussing investigative powers under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.): Decision, Hearing Transcript, p. 8; Pearson at para. 42. In the cited paragraphs of RBC, this Court noted that the statutory provisions at issue served the dual purpose of empowering the Minister to verify taxpayers’ compliance and ensuring "“the fair and proper treatment of persons subjected to the Minister’s investigative powers”", consistent with those persons’ rights under section 8: RBC at para. 22, citing M.N.R. v. Sand Exploration Limited, 1995 CanLII 3599 (FC), [1995] 3 F.C. 44 at p. 53 (F.C.) and Derakhshani at para. 19.
[49] Moreover, the Federal Court in Pearson was fully alive to the considerations specific to judicial oversight of law enforcement investigations, properly observing that a certain degree of latitude was warranted on a section 11 application to avoid unduly constraining the Commissioner (at para. 48). The Court also noted that the judiciary must "“remain alert to the danger of unduly burdening and complicating the law enforcement investigative process”", particularly where that process is "“in embryonic form engaged in the gathering of the raw material for further consideration”": Pearson at para. 48, quoting SGL Canada Inc. v. Canada (Director of Investigation and Research), 1999 CanLII 7595 at para. 11 (F.C.), quoting Irvine v. Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), [1987] 1 S.C.R. 181 at p. 235 (S.C.C.).From this, it is apparent that the Application Judge’s use of the term “disproportionate” did not mean that he was applying the rulebook applicable to discovery in civil litigation. Indeed, the “excessive, disproportionate or unnecessarily burdensome” test in Pearson and Bell Mobility must be understood in light of the context of those decisions, which were also section 11 applications within ongoing investigations. Further, the term “proportionality” is not alien to the section 8 context and has been applied, for example, in assessing the reasonableness of police physical searches: see e.g. R. v. Golden, 2001 SCC 83 at para. 116; R. v. Fearon, 2014 SCC 77 at para. 152 (per Karakatsanis J., dissenting); R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 14 (S.C.C.), citing Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158 at p. 186 (S.C.C.). [50] As discussed above, section 8 requires the application judge, in the exercise of the highly flexible discretion conferred by section 11, to balance the state interest in the search or seizure against the privacy interests of the target: Hunter at pp. 157-60; Dyment at p. 428; CBC at p. 476; Baron at pp. 435-37. When issuing a section 11 order, the court should assess whether the information requested by the Commissioner exceeds what is reasonably required for purposes of the inquiry and is overbroad given the nature of the inquiry or unjustifiably intrudes on the privacy interests of the target.
[51] In my view, this approach corresponds with the "“excessive”" and "“disproportionate”" components of the test set out in Pearson and Bell Mobility. Assessing what is reasonably required by the Commissioner and considering whether the request is excessive or disproportionate to the inquiry in light of the privacy interests of the target—even though these interests are minimal for business records—is part of the section 8 balancing exercise.
[52] Next, contrary to the appellant’s allegation, the Federal Court did not require the Commissioner to establish relevance of the documents and information in the Data Request by reference to the case to be presented at trial, as in civil litigation, where documentary production must be relevant to the pleaded case. Section 11 requires that the material or information sought be relevant to the inquiry and the Pearson/Bell Mobility test asks the court to consider "“what the Commissioner reasonably requires to conduct the inquiry in question”": see Bell Mobility at para. 50. At the hearing, the Application Judge specifically and repeatedly emphasized uncertainty about the scope of the order and whether the documents requested exceeded what was needed for the Commissioner’s inquiry: Decision, Hearing Transcript, pp. 9, 31, 35, 41-43, 62, 64, 73-74. . Canada (Commissioner of Competition) v. Amazon.com.ca, ULC
In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denying to the Commissioner of Competition of "an order requiring the respondents to produce transaction data about certain products on their online store" (under s.11 ['Order for oral examination, production or written return'] of the Competition Act).
Here the court considers Charter s.8 ['search and seizure'], this in the context of regulatory/investigative enforcement:[28] Another purpose of section 11 is to grant the application judge sufficient authority to ensure that the Commissioner’s investigative powers are exercised in compliance with section 8 of the Charter, protecting against unreasonable search or seizure.
[29] It is well established that compulsory production orders in a regulatory context, such as those under section 11 of the Competition Act, are "“seizures”" subject to section 8: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425 at pp. 442, 494, 505, 592 (S.C.C.) [Thomson Newspapers]; R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 at pp. 640-42 (S.C.C.) [McKinlay Transport]; British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3 at paras. 59-60 (S.C.C.) [Branch]; Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751 at paras. 37-38 [Binance], leave to appeal requested, 42156 (S.C.C.).
[30] Section 11 of the Competition Act was enacted in 1986 by Bill C-91 in response to Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (S.C.C.) [Hunter]. In Hunter, the Supreme Court of Canada struck down investigatory powers held by the Director of the Restrictive Trade Practices Commission (RTPC) under section 10 of the Combines Investigation Act, R.S.C. 1970, c. C-23. The Combines Investigation Act was the predecessor of the Competition Act and the Director of the RTPC was the predecessor of the Commissioner. The Court found that the statutory provision violated section 8 of the Charter, which provides:"Search or seizure"
"Fouilles, perquisitions ou saisies"
"8 Everyone has the right to be secure against unreasonable search or seizure."
"8"" Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives." [31] The responsible minister for Bill C-91, Michel Côté, explained to the House of Commons that the investigative powers under the new Competition Act were designed to comply with Hunter, and would "“protect the individual rights enshrined in the Canadian Charter of Rights and Freedoms while providing the tools provided to enforce the law properly”": Canada, House of Commons Debates, 33rd Parl., 1st Sess., Vol. 8, p. 11930 (7 April 1986); see also Michel Côté, Competition Law Amendments: A Guide (Ottawa: Consumer and Corporate Affairs Canada, 1985) at pp. 13-14.
[32] The text and the legislative history of section 11 demonstrate that the application judge’s discretion must be exercised consistently with the provision’s dual purpose: empowering the Commissioner to investigate and enforce competition law and protecting the section 8 Charter rights of those under investigation.
[33] The reasonableness of a search and seizure under section 8 is evaluated by reference to the subject’s expectation of privacy: Hunter at p. 159; McKinlay Transport at p. 642; R. v. Singer, 2026 SCC 8 at para. 36. Section 8 mandates that judges retain the discretion to refuse production orders to preserve the privacy interests of targeted parties: Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 at paras. 21-23 [RBC]; Derakhshani at para. 19, citing Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416 at p. 443 (S.C.C.) [Baron].
[34] There is no single list of factors to test the reasonableness of a search or seizure: Baron at pp. 435-37; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50 (SCC), [1991] 3 S.C.R. 459 at p. 478 (S.C.C.) [CBC]; Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 at para. 57 [Goodwin]; Canada (Attorney General) v. Canadian Civil Liberties Association, 2026 FCA 6 at para. 438 [CCLA]. However, relevant considerations include the nature and the purpose of the governing legislative scheme, the mechanism employed, the potential intrusiveness of the search or seizure, and the availability of judicial supervision: Goodwin at para. 57, citing Del Zotto v. Canada, 1997 CanLII 6349 (FCA), [1997] 3 F.C. 40 at para. 13 (F.C.A.) (per Strayer J.A., dissenting), adopted by the Supreme Court of Canada, 1999 CanLII 701 (SCC), [1999] 1 S.C.R. 3 at p. 4 (S.C.C.); see also Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at para. 106 and Binance at paras. 57-62.
[35] Applying this contextual approach, three factors support relaxation of the reasonableness standard for production orders under section 11. First, a diminished expectation of privacy attaches to business records, because they do not normally deal with the intimate aspects of personal identity which the right of privacy is intended to protect: Thomson Newspapers at pp. 517-18 (per La Forest J.); McKinlay Transport at p. 649. Second, the reasonableness standard is generally more flexible under regulatory statutes than in criminal law: McKinlay Transport at pp. 645-46; Baron at pp. 435-37; Comité paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406 at pp. 420-21 (S.C.C.); R. v. Jarvis, 2002 SCC 73 at paras. 71-72. Third, a production order is much less intrusive than a physical entry onto property or the search of a person’s body, both of which require more stringent judicial oversight: Baron at pp. 444-45; see also Thomson Newspapers at pp. 520-22 (per La Forest J.); McKinlay Transport at pp. 649-50; Binance at para. 40, citing Branch at paras. 58, 60-61.
[36] Nonetheless, section 8 meaningfully constrains regulators’ ability to require the production of business records. Commercial documents are protected under section 8 because they possess an informational privacy interest—they inevitably reveal aspects of the business that the operator would rather keep private: R. v. Law, 2002 SCC 10 at para. 16; 143471 Canada Inc. v. Quebec (Attorney General), 1994 CanLII 89 (SCC), [1994] 2 S.C.R. 339 at p. 379 (S.C.C.) (per Cory J., for the majority on this point); see also McKinlay Transport at p. 642. Binance, a recent decision applying section 8 to the production of business records, considered a provision empowering the Ontario Securities Commission to order the production of documents: Securities Act, R.S.O. 1990, c. S.5, s. 13(1). While no relevance standard had been written into the statutory provision, the Court of Appeal for Ontario found that section 8 required the regulator to have a "“reasoned basis for believing”" the records sought "“may be relevant”" to an investigation: Binance at paras. 89-98. The Court determined that the summons issued by the Commission was overbroad and contravened section 8 because it purported to compel the target to produce documents that the Commission had no foundation to believe might be relevant to its investigation.
[37] Here, unlike the statutory provision at issue in Binance, subsections 11(1) and 11(2) of the Competition Act prescribe a minimum standard of relevance. However, even where the records are relevant to the Commissioner’s inquiry, the application judge retains a residual discretion to refuse the requested production order. The contours of this discretion are defined by section 8. Authorizing judges must evaluate the impact on the subject of the search or the seizure and determine whether "“in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the [subject’s] privacy in order to advance its goals”": Hunter at pp. 157-60; see also R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 at p. 428 (S.C.C.) [Dyment].
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[55] Other courts have used the language of "“burden”" under section 8 of the Charter when discussing whether the scope of the search or seizure exceeds what is relevant to the government’s inquiry. For example, in Thomson Newspapers at p. 532, Justice La Forest likened the burdensomeness of a search or seizure to its potential "“overbreadth”" or whether "“documents not relevant to the inquiry in progress are being demanded”" (see also Binance at para. 99). However, in my view, Bell Mobility went too far in suggesting that production orders should be limited by the "“burden”"—meaning "“reasonable efforts”" or costs—imposed on the target: see Bell Mobility at paras. 50-51. These considerations are not supported by the section 8 jurisprudence, which focusses on the privacy interests of the target of the search or seizure, not the difficulty of responding to a production order or the target’s economic interests: see e.g. Hunter at pp. 159-60; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 at p. 292 (S.C.C.); R. v. Tessling, 2004 SCC 67 at paras. 20-23; R. v. A.M., 2008 SCC 19 at para. 33; R. v. Ahmad, 2020 SCC 11 at para. 38; CCLA at paras. 409-10, 416, citing Goodwin at para. 55.
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[58] On the factual record before it, the Federal Court did not make a reviewable error when it declined to order the production requested by the Commissioner. An application judge cannot conduct the balancing exercise required by section 8 — determining whether the intrusiveness of the production order is justified by the state’s interest in law enforcement — if they do not know the extent of what the state seeks to have produced. . Canada (Commissioner of Competition) v. Amazon.com.ca, ULC
In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denying to the Commissioner of Competition of "an order requiring the respondents to produce transaction data about certain products on their online store" (under s.11 ['Order for oral examination, production or written return'] of the Competition Act).
Here the court considers factors to be applied when deciding to make investigative orders under s.11 Competition Act:A. Did the Federal Court Err by Relying on Factors Inconsistent with Section 11 of the Competition Act and Section 8 of the Charter?
[18] The Commissioner submits that the Federal Court erred by relying on Pearson and Bell Mobility. The Commissioner says that the "“excessive, disproportionate and unnecessarily burdensome”" standard developed in those cases is inconsistent with section 11 of the Competition Act and section 8 of the Charter and inappropriately imports civil litigation concepts into the investigation stage of proceedings under the Competition Act. The Commissioner asks this Court to explicitly reject the approach taken in Pearson and Bell Mobility.
[19] In Pearson, the Federal Court (per Crampton C.J.) clarified the role of the Court on section 11 applications, including the criteria governing the exercise of the Court’s discretion (see para. 2). The Court found that:[In] the typical proceedings initiated under section 11, the Court’s focus will be on satisfying itself that (i) an inquiry is in fact being made; (ii) the Commissioner has provided full and frank disclosure; (iii) the information or records described in the order being sought are relevant to the inquiry in question; and (iv) the scope of such information or records is not excessive, disproportionate or unnecessarily burdensome.
(Pearson at para. 4.) [20] The Commissioner’s application to the Federal Court in this proceeding was made pursuant to paragraphs 11(1)(b), 11(1)(c), 11(2)(a) and 11(2)(b) of the Competition Act. Paragraphs 11(1)(b) and 11(1)(c) include, respectively, the power to obtain an order for the production of a record, a copy thereof "“or any other thing, specified in the order”" and an order for the making and delivery of a written return or solemn affirmation showing "“such information as is by the order required”". Paragraphs 11(2)(a) and 11(2)(b) are corresponding provisions relating to records or information in the possession of an affiliate.
[21] Subsections 11(1) and 11(2) of the Competition Act provide:"Order for oral examination, production or written return"
"Ordonnance exigeant une déposition orale ou une déclaration écrite"
"11 (1) If, on the ex parte application of the Commissioner or his or her authorized representative, a judge of a superior or county court is satisfied by information on oath or solemn affirmation that an inquiry is being made under section 10 or 10.1 and that a person has or is likely to have information that is relevant to the inquiry, the judge may order the person to"
"11 (1)"" Sur demande ex parte du commissaire ou de son représentant autorisé, un juge d’une cour supérieure ou d’une cour de comté peut, lorsqu’il est convaincu d’après une dénonciation faite sous serment ou affirmation solennelle qu’une enquête est menée en application des articles 10 ou 10.1 et qu’une personne détient ou détient vraisemblablement des renseignements pertinents à l’enquête en question, ordonner à cette personne: "
"(a) attend as specified in the order and be examined on oath or solemn affirmation by the Commissioner or the authorized representative of the Commissioner on any matter that is relevant to the inquiry before a person, in this section and sections 12 to 14 referred to as a “presiding officer”, designated in the order;"
"a)"" de comparaître, selon ce que prévoit l’ordonnance de sorte que, sous serment ou affirmation solennelle, elle puisse, concernant toute question pertinente à l’enquête, être interrogée par le commissaire ou son représentant autorisé devant une personne désignée dans l’ordonnance et qui, pour l’application du présent article et des articles 12 à 14, est appelée «fonctionnaire d’instruction»;"
"(b) produce to the Commissioner or the authorized representative of the Commissioner within a time and at a place specified in the order, a record, a copy of a record certified by affidavit to be a true copy, or any other thing, specified in the order; or"
"b)"" de produire auprès du commissaire ou de son représentant autorisé, dans le délai et au lieu que prévoit l’ordonnance, les documents — originaux ou copies certifiées conformes par affidavit — ou les autres choses dont l’ordonnance fait mention;"
"(c) make and deliver to the Commissioner or the authorized representative of the Commissioner, within a time specified in the order, a written return under oath or solemn affirmation showing in detail such information as is by the order required."
"c)"" de préparer et de donner au commissaire ou à son représentant autorisé, dans le délai que prévoit l’ordonnance, une déclaration écrite faite sous serment ou affirmation solennelle et énonçant en détail les renseignements exigés par l’ordonnance."
"Records or information in possession of affiliate"
"Documents ou renseignements en possession d’une affiliée"
"(2) If the person against whom an order is sought under paragraph (1)(b) or (c) in relation to an inquiry is a corporation and the judge to whom the application is made under subsection (1) is satisfied by information on oath or solemn affirmation that an affiliate of the corporation, whether the affiliate is located in Canada or outside Canada, has or is likely to have records or information relevant to the inquiry, the judge may order the corporation to"
"(2)"" Lorsque, en rapport avec une enquête, la personne contre qui une ordonnance est demandée en application des alinéas (1)b) ou c) est une personne morale et que le juge à qui la demande est faite aux termes du paragraphe (1) est convaincu, d’après une dénonciation faite sous serment ou affirmation solennelle, qu’une affiliée de cette personne morale a ou a vraisemblablement des documents ou des renseignements qui sont pertinents à l’enquête, il peut, sans égard au fait que l’affiliée soit située au Canada ou ailleurs, ordonner à la personne morale :"
"(a) produce the records; or"
"a)"" de produire les documents en question;"
"(b) make and deliver a written return of the information."
"b)"" de préparer et de donner une déclaration écrite énonçant les renseignements." [22] Section 11 of the Competition Act vests the power to issue production orders in superior court judges, including judges of the Federal Court. Section 11 envisions an ex parte proceeding where only the Commissioner appears. Parties other than the Commissioner, including the target of a production order, have no right to participate in the hearing, file evidence or cross-examine the affiant of any affidavit relied on by the Commissioner: Pearson at para. 92, citing Commissioner of Competition v. Toshiba of Canada Limited, 2010 ONSC 659 at paras. 34-36, leave to appeal ref’d 2011 ONSC 949 (Div. Ct.), leave to appeal ref’d 2011 CanLII 79175 (S.C.C.).
[23] While the application judge may, in certain circumstances, allow parties other than the Commissioner to attend the hearing or provide them with an opportunity to seek leave to make written or oral submissions, this should not be expected. Parliament has deliberately chosen that section 11 hearings should ordinarily proceed on an ex parte basis: Canada Tax Reviews at para. 48; Pearson at paras. 92-94, citing R. v. S.A.B., 2001 ABCA 235 at para. 61. As addressed further below (see paras. 68-74), the more appropriate and common means for the target of the order to bring its concerns about the scope of the proposed order to the application judge’s attention is through pre-hearing communications with the Commissioner, which are presented to the court pursuant to the Commissioner’s duty of full, fair and frank disclosure. As also discussed further below, the target of the order may also move under Rule 399(1) to have a section 11 order set aside.
[24] At the hearing, the Commissioner must establish that an inquiry is being made under section 10 or 10.1 and that the target of the order has or is likely to have relevant information. If these conditions are met, the application judge "“may”" grant the production order. This permissive language reflects a residual discretion to refuse to issue the order or to include additional conditions: Air Canada at para. 31; Canada (National Revenue) v. Derakhshani, 2009 FCA 190 at para. 19 [Derakhshani]; Interpretation Act, R.S.C. 1985, c. I-21, s. 11.
[25] The factors considered by an application judge in the exercise of discretion under section 11 of the Competition Act must be consistent with the legislature’s intent in enacting the provision: see Wilson v. Alharayeri, 2017 SCC 39 at paras. 26-27; R. v. Lavigne, 2006 SCC 10 at paras. 22-37; D.J.E. v. P.A.E., 2014 ABCA 403 at para. 18; Gosse v. Sorensen-Gosse, 2011 NLCA 58 at para. 19. To discern legislative intent, the court examines the text, context and purpose of the provision: CISSS A at para. 23; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21 (S.C.C.); Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022), § 2.01[4].
[26] The text of section 11 sets out two preconditions for the application judge’s exercise of discretion: that there is an inquiry underway and that the target is likely to have information relevant to the inquiry. Otherwise, the text does not circumscribe the scope of the discretion.
[27] One essential purpose of section 11 is to enable the Commissioner to make inquiries into anti-competitive practices (under section 10) and the state of competition in a market or industry (under section 10.1). The investigatory purpose of section 11 furthers the general purpose of the Competition Act to maintain and encourage competition in Canada (section 1.1). The critical importance of the Commissioner’s investigative mandate is reflected in the serious penalties that may follow for failure to comply with a section 11 order—imprisonment of up to two years or a fine "“in the discretion of the court”": Competition Act, s. 65(1); Commissioner of Competition v. Labatt Brewing Company Limited, 2008 FC 59 at para. 20 [Labatt].
....
[71] .... Section 11 applications may be brought before any superior court in Canada, and not only the Federal Court. While subsection 34(1) of the Competition Tribunal Rules, S.O.R./2008-141, allows the Competition Tribunal to refer to the Federal Courts Rules to resolve questions of practice and procedure, this is of no consequence, as section 11 applications are not made to the Competition Tribunal. . Empire Company Limited v. Canada (Attorney General)
In Empire Company Limited v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from the striking of a JR challenging the grant of a "decision of the Commissioner of Competition to commence an inquiry (the Inquiry) under the Competition Act":[2] By way of brief background, the Commissioner is required to commence an inquiry pursuant to subparagraph 10(1)(b)(ii) of the Act to determine the facts whenever the Commissioner has reason to believe that grounds exist for the making of an order under Part VII.1 or Part VIII of the Act, in this case, Part VIII and section 79 (abuse of dominant position).
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