Kalibrate Consent Agreement Targets Third-Party Information Sharing as Abuse of Dominance

On September 24, 2026, the Competition Bureau (Bureau) announced it had entered into a consent agreement with Kalibrate Canada Inc. (Kalibrate) to address concerns regarding Kalibrate’s collection and distribution of detailed retail fuel data through its Kalibrate Market Intelligence product (KMI). More broadly, the matter signals the Bureau’s willingness to challenge information-sharing arrangements under multiple provisions of the Competition Act (Act), including through abuse of dominance where the intermediary itself is alleged to be dominant.

The Consent Agreement

The Kalibrate consent agreement reflects several noteworthy elements:

• The agreement does not involve anticompetitive acts in the market where the dominant firm competes; Kalibrate supplies information to fuel retailers, but does not compete with them. The Bureau concluded that Kalibrate was dominant in the market for collection and dissemination of granular, station-level retail gasoline sales data in Canada, as the only source of verified information in an industry with significant barriers to entry. The consent agreement illustrates that the abuse of dominance provisions may apply even where the conduct at issue does not take the conventional form of excluding or disciplining the dominant firm’s own competitors.
• It is the first consent agreement under the revised abuse of dominance provisions. These amendments lowered the threshold for obtaining a prohibition order, allowing the Competition Tribunal (Tribunal) to intervene where a dominant firm engages in either (i) a practice of anti-competitive acts or (ii) conduct with anticompetitive effects; previously, both were required. Both elements remain necessary for the Tribunal to issue more intrusive orders, including administrative monetary penalties.
• It is also the first abuse of dominance consent agreement that did not rely on alleged anticompetitive effects. Rather, it is based solely on the anticompetitive acts branch, with the Bureau concluding that Kalibrate engaged in a practice of anticompetitive acts by designing, operating and promoting KMI as a mechanism through which competing fuel retailers could obtain detailed, competitively sensitive information about one another.

Importantly, the Bureau’s theories and its approach to the revised abuse of dominance provisions have not been tested before the Tribunal. A consent agreement is a negotiated settlement and not a finding of liability, and can be entered into with respect to any matter that could be the subject of an order by the Tribunal. To resolve the Bureau’s concerns, Kalibrate agreed not to:

• Include any confidential or competitively sensitive information about competing retailers in KMI, unless the information has been sufficiently aggregated
• Include gasoline prices or non-public information identifying any person who controls or influences retail gasoline pricing in KMI
• Report information in KMI for periods shorter than one month or until at least 10 business days after the end of the period to which the information relates

Key Takeaways

• New rules, new enforcement paradigm: Amendments beginning in 2022 have significantly overhauled the Act. The Bureau is becoming more aggressive in using these changes in enforcement actions. Businesses should expect increased enforcement as the Bureau utilizes its expanded toolkit and tests the parameters of the amended statute.
• Exercise caution with competitively sensitive information: Businesses should assess arrangements involving direct or indirect sharing of competitively sensitive information, including through third-party data providers, benchmarking services, trade associations and software platforms. The rationale for such information sharing should be clearly documented. Sharing detailed, current and firm-specific information is more likely to raise concerns than sufficiently aggregated, anonymized and historical data.
• Information intermediaries likely to face heightened scrutiny: Providers of commercially important data, analytics, benchmarking or pricing services should consider whether their product design or operation could be characterized as an anti-competitive act, particularly where barriers to entry, such as network effects or the need for extensive historical datasets, exist.

For more information, please do not hesitate to contact your usual Blakes contact or any member of the Blakes Competition, Antitrust & Foreign Investment group.