In its recent 2026-2027 Annual Plan, the Competition Bureau announced that it “will use all of the tools at our disposal to prevent, detect and stop unfair practices that harm consumers and businesses,” with the result that companies’ information sharing practices could be in the crosshairs. This increases the importance of navigating competition law risks when communicating externally.
The Competition Act has criminal and civil penalties for conspiracies and anticompetitive agreements, respectively. Conspiracies, which are criminal cartels, involve agreements between competitors to fix prices, restrict output, or allocate markets, or agreements between employers to fix wages or other terms of employment, or to not solicit or hire each other’s employees. There is no need to prove actual harm as conspiracies are per se illegal and can result in substantial fines with no maximum cap and up to 14 years in prison. Anticompetitive agreements (that are not criminal conspiracies) are reviewed under civil provisions and can result in penalties of up to $10 million or 3% of a corporation’s worldwide gross revenue.
Disclosing confidential business information that is competitively sensitive, especially sharing such information with competitors may be construed as circumstantial evidence of an agreement or arrangement that could be a conspiracy or an anticompetitive agreement. It is important to be aware of the risks of information sharing.
Sharing is Not Caring among Competitors
Discussing work matters at an industry conference or among competitors may seem innocuous, however sharing competitively sensitive information, including relating to prices, costs, output, customers, or terms of employment, can be problematic.
Trade associations and industry groups inherently present heightened risk of coordinated conduct because they bring together direct competitors, and participants should be careful. To mitigate risk of engaging in a conspiracy or appearing to engage in a conspiracy, association activities should be clearly tied to legitimate objectives, agendas should be tightly managed, and competitively sensitive information should never be requested or disclosed.
Getting the Deal Done: Information Exchange in M&A
Exchanging information is a routine component of the due diligence process for transactions. Sharing competitively sensitive information can raise concerns – even as part of a legitimate due diligence process – where the purchaser is a competitor or potential competitor, in which case caution should be used when sharing sensitive information. Precautions may include segregating competitively sensitive information in data rooms and implementing safeguards to prevent the misuse of the information, such as using “clean teams” to limit the ability of an operations team to access confidential business information of a competitor.
The Bottom Line
Sharing competitively sensitive information without considering competition risks can land companies in hot water. It is important for businesses to have clear internal protocols and training regarding exchanging information with competitors and otherwise disclosing information that is typically confidential business information. This is especially important for personnel that have contact with competitors or are responsible for external communications.
Additional information and background can be found on the Competition Bureau’s proposed draft Anti-competitive Conduct and Agreements Enforcement Guidelines as well as its proposed draft Cartel Enforcement Guidelines.