Google - Order, Direction and Reasons arising from the CMC on June 6, 2025

Google - Order, Direction and Reasons arising from the CMC on June 6, 2025 Collection Case Documents Date Filed 2025-06-11 Neutral citation 2025 Comp Trib 6 File Number CT-2024-010 Document Type Decisions Type of Application Abuse of Dominant Position Section(s) of the Competition Act s. 79 Proceeding Number 94 Decision Content Competition Tribunal Tribunal de la Concurrence Citation: Canada (Commissioner of Competition) v Google Canada Corporation and Google LLC, 2025 Comp Trib 6 File No.: CT-2024-010 Registry Document No.: 94 IN THE MATTER OF the Competition Act, RSC 1985, c C-34, as amended; AND IN THE MATTER OF certain conduct of Google Canada Corporation and Google LLC relating to the supply of online advertising technology services in Canada; AND IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to section 79 of the Competition Act. BETWEEN: Commissioner of Competition (applicant) and Google Canada Corporation and Google LLC (respondents) Decided on the basis of the written record. Before: Mr Justice Andrew D. Little (Chairperson) Date of order: June 11, 2025 ORDER, DIRECTION AND REASONS [1] In this proceeding commenced under section 79 of the Competition Act, R.S.C. 1985, c. C-34, as amended, the respondents Google Canada Corporation and Google LLC (“Google”) filed a Notice of Constitutional Question dated February 14, 2025. [2] On May 6, 2025, Google filed a notice of motion that challenged the constitutionality of certain provisions in section 79 of the Competition Act. The key source of concern for Google is one of the remedies sought in the Commissioner’s Notice of Application filed on November 28, 2024 – an administrative monetary penalty (“AMP”) under subsection 79(3.1) that, according to Google, “could well be measured in the billions of dollars”. Google contends that such an AMP constitutes a “true penal consequence” or sanction. Google maintains that the Commissioner’s request for such an AMP in the Notice of Application triggered its constitutional rights under the Canadian Charter of Rights and Freedoms. Google’s motion seeks orders that include declarative relief and a stay of this section 79 proceeding, owing to alleged breaches of sections 7, 8 and 11 of the Charter and subsection 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44. [3] With its notice of motion, Google filed 29 volumes of materials to support its constitutional challenge. Those volumes include affidavits with both fact and opinion evidence. [4] On May 7, 2025, the Tribunal issued a Bifurcation and Scheduling Order. It divides this proceeding into two stages – liability at an initial stage and, if necessary, a second stage for remedy. Under the schedule in that order, the Tribunal will hear the constitutional challenge in Google’s motion over a period of four days during the week starting Monday, September 29, 2025. [5] By letter dated May 16, 2025, the Commissioner advised Google that he intended to file a motion to strike Google’s motion and provided a draft notice of motion to strike. The letter and draft notice of motion set out the Commissioner’s position in detail. [6] By letter dated May 21, 2025, Google responded in detail. Google invited the Commissioner not to proceed with his motion to strike. [7] The Tribunal received copies of these exchanges on May 21, 2025, and scheduled a case management conference for June 3, 2025, which was then rescheduled to June 6, 2025 (the “CMC”). [8] On June 4, 2025, the Commissioner filed the motion to strike Google’s motion dated May 6, 2025, together with a memorandum of fact and law in support. In addition, before the CMC, both parties filed written summaries of their positions concerning the Commissioner’s motion to strike Google’s motion. [9] At the CMC on June 6, 2025, both parties made oral submissions. The Commissioner submitted that his motion to strike has demonstrable merit, arguing that Google’s constitutional challenge was bereft of any possibility of success because as a matter of law, a proceeding under section 79 cannot lead to an AMP under subsection 79(3.1) that imposes true penal consequences. He contended that an early determination of the Commissioner’s motion to strike would save the parties and the Tribunal considerable time, effort and resources because the four-day hearing of Google’s constitutional challenge – including all the steps leading up to it – would not be necessary. [10] The Commissioner’s position was that Google’s motion can and should be dismissed as a matter of law. According to the Commissioner, his arguments are a “knock-out punch” to Google’s position. The Commissioner referred to: (a) the express language in subsections 79(3.2) and (3.3) of the Competition Act. Subsection 79(3.2) sets out factors, evidence of which the Tribunal must take into account in determining the amount of an AMP. Subsection 79(3.3) provides that the purpose of an order for an AMP under subsection 79(3.1) is “to promote practices by [the respondent] that are in conformity with the purposes of [section 79] and not to punish that person”; (b) the existence of the Tribunal’s remedial discretion on whether to issue an AMP (assuming liability is established against Google at the first stage of this bifurcated proceeding), and Google’s assumption that the Tribunal will exceed its jurisdiction and issue an unconstitutional AMP contrary to subsection 79(3.3); and (c) the absence of any allegation of a breach of the Charter existing at this time, owing to the assumptions made by Google and the conditional nature of its arguments and the filed expert evidence about the imposition of an AMP by the Tribunal in the future. [11] The Commissioner further maintained that the Tribunal could assume that all of the facts in Google’s affidavits were true for the purposes of the motion to strike (while reserving the right to challenge them if his motion to strike does not proceed). [12] For its part, Google’s position was that none of this is correct. Google contended that the Commissioner had misread the applicable constitutional law and that the Tribunal must consider both the purpose and effect of an AMP to determine whether it may impose true penal consequences (referring to Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 and John Howard Society of Saskatchewan v Saskatchewan (Attorney General), 2025 SCC 6). Google submitted that its constitutional challenge has clear merit, its rights were being violated on a continuing basis, and its motion should proceed to a hearing, as scheduled. [13] Google maintained that the Commissioner’s motion to strike was improper under case law in the Federal Courts and should not even be scheduled. Google also referred to the guidance in R v Haevischer, 2023 SCC 11, concerning the summary dismissal of an application during a criminal proceeding in British Columbia, without hearing the application on its full merits. Google disagreed with the Commissioner’s view that an early motion to strike would save the resources of the parties and the Tribunal. [14] Google’s constitutional challenge was made by way of motion. However, its scope, complexity and evidence in support bears considerable resemblance to an application in the Federal Court or a provincial superior court. In this context, it is instructive to consider the Competition Tribunal Rules (SOR/2008-141), the Federal Courts Rules (SOR/98-106), and some of the Federal Courts’ guidance on responding to both motions and applications (including judicial review applications) and concerning a “motion to strike a motion”. [15] The Competition Tribunal Rules do not expressly provide for a motion to strike a motion. Nor do the Federal Courts Rules. The Commissioner relied on the Tribunal’s jurisdiction in section 8 and the statutory direction to proceed informally and expeditiously in subsection 9(2) of the Competition Tribunal Act (R.S.C., 1985, c. 19 (2nd Supp)), as well as Rule 2(1) of the Competition Tribunal Rules. The Commissioner also relied on Rules 4 and 221 of the Federal Courts Rules, through Rule 34(1) of the Competition Tribunal Rules. However, as Google noted, Rule 221 of the Federal Courts Rules refers to striking a “pleading”, which does not include a notice of motion: see Rule 2. [16] There are very good reasons why these rules do not provide for a motion to strike out a motion. For the vast majority of motions, the only proper way for a party to respond is to file a responding motion record and to argue the motion on its merits. See Competition Tribunal Rules, Rules 82-88; Federal Courts Rules, Rule 365; Heiltsuk Horizon Maritime Services Ltd. v Atlantic Towing Limited, 2023 FCA 123, at paras 4-7; Viiv Healthcare Company v Gilead Sciences Canada, Inc., 2021 FCA 122, [2021] 4 FCR 289, at para 21; David Bull Laboratories (Canada) Inc. v Pharmacia Inc., [1995] 1 FC 588 (CA), at pp. 596-597; Sandpiper Distributing Inc. v Ringas, 2020 FC 366, at para 48. [17] In the Federal Courts’ case law, there is a narrow category of cases in which there is an initial threshold issue that may dispose of a motion or application – that is, an issue that strikes at the root of the court’s power to entertain the motion or application at all, but that does not go to the substantive merits of the motion or application: see Bearspaw First Nation v Lefthand, 2025 FCA 56, at para 7; JP Morgan Asset Management (Canada) Inc. v Canada (National Revenue), 2013 FCA 250, [2014] 2 FCR 557, at para 47 (finding that there must be a “show stopper” or “knockout punch”, an “obvious, fatal flaw striking at the root of [the] Court’s power to entertain the application”); Rahman v Public Service Labour Relations Board, 2013 FCA 117, at para 7; Donaldson v Western Grain Storage By-Products, 2012 FCA 286, at para 6(c). For instance, such a threshold issue could arise if the motion concerns a matter that is plainly beyond the court’s legal jurisdiction (see Kimaev v Ontario (Transportation), 2023 FC 475, at paras 10 and ff, 23; JP Morgan, at paras 81-95, 110-111). In these kinds of cases, the court’s decision on the threshold issue may obviate the need to hear the larger motion or application. [18] These principles assist to resolve the present dispute. The Commissioner has not raised a threshold issue that strikes at the heart of the Tribunal’s ability to hear Google’s motion. Rather, the Commissioner’s motion to strike Google’s motion is based on the purported strength of the Commissioner’s legal position on the merits of Google’s constitutional challenge, which Google strenuously contests: see Heiltsuk, at para 7; Rahman, at para 7; David Bull, at p. 600. Whatever the strength of the Commissioner’s and Google’s respective positions, all of the Commissioner’s points go to the merits of the constitutional challenge, and not to a threshold issue that may be separately determined on an earlier motion date. The Commissioner can and will make all his arguments in response to Google’s motion during the scheduled hearing starting at the end of September 2025 (in addition to other arguments the Commissioner may make). A separate, earlier motion to strike Google’s notice of motion is not the place to raise the Commissioner’s substantive responses to the constitutional challenge, no matter how strong they may be: see Viiv Healthcare, at para 21. [19] The Commissioner argued that his motion to strike can be determined solely on questions of law and on Google’s filed evidence with facts assumed to be true (like a motion to strike with pleaded facts that are assumed to be true). However, this framing of the Commissioner’s motion does not change the fact that it is based on the alleged strength of his position on the merits of the constitutional challenge. The motion in substance resembles a motion to dismiss summarily on the merits, based on legal arguments, which the Commissioner seeks to shoe-horn into a motion to strike by offering to assume the accuracy of evidence filed by Google. [20] The Commissioner’s characterization of his motion does not justify a separate hearing under the guiding principles in the Federal Courts’ case law. The possible resource-saving benefits of an early motion depend entirely on the Commissioner’s presumed success on his motion. However, if the Tribunal were to dismiss the Commissioner’s motion to strike, the parties and the Tribunal would have to go on to the hearing starting on September 29 where many of the same legal arguments would apply, with a resulting duplication of time and effort for everyone and an associated increase in expense to the parties. [21] I am also mindful of the consistent appellate guidance that constitutional challenges should usually be determined with the benefit of evidence, and not in a factual vacuum or in the abstract: see British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27, [2022] 1 SCR 794, at para 70; Danson v Ontario (Attorney General), [1990] 2 SCR 1086, at pp. 1099-1101; MacKay v Manitoba, [1989] 2 SCR 357, at pp 361-362; Bekker v Canada, 2004 FCA 186, at para 12. However, to be clear, I make no comments about the evidence tendered to date, or the strength of either party’s arguments on the pending constitutional challenge. [22] Accordingly, the Tribunal will not schedule the Commissioner’s motion to strike to be heard before, and separately from, Google’s constitutional challenge starting on September 29, 2025. Considering the contents of the Commissioner’s motion and subsection 9(2) of the Competition Tribunal Act, the more efficient use of time and resources is to hear the Commissioner’s legal submissions in full during the scheduled week for Google’s constitutional challenge. The Tribunal will presumptively schedule the Commissioner’s motion to be returnable and heard during that hearing week. [23] In light of this result, the Tribunal will direct the Commissioner to advise Google and the Tribunal, within 14 days of this Order, whether he still intends to proceed with the motion to strike (having filed a notice of motion on June 4, 2025) and make the legal arguments in a manner distinct from the rest of the Commissioner’s response to Google’s motion. If the motion to strike proceeds in that way, it will be heard with Google’s motion starting on September 29, 2025, and the dates for filing written submissions in the Bifurcation and Scheduling Order will apply. Google may address the Commissioner’s arguments in its memorandum of fact and law to be filed on August 22, 2025 (or by separate memorandum as it may choose). The Commissioner may incorporate any reply into its memorandum to be filed on September 12, 2025 (or file a separate memorandum as he may choose). Alternatively, if the Commissioner chooses not to proceed separately with the motion to strike, he will be able to incorporate his arguments into his written argument to be filed on September 12, 2025. It is reasonable to believe that Google will respond proactively on August 22, 2025, to the Commissioner’s position set out in the memorandum of fact and law filed on June 4, 2025. Google can also reply on September 19, 2025, to the Commissioner’s memorandum to be filed on September 12, 2025. [24] Regardless of the Commissioner’s decision on whether to proceed with his motion, Google will make its oral submissions first, starting on Monday, September 29, 2025. [25] The Tribunal reserves a decision on costs of the parties’ appearance at the CMC to the determination of Google’s motion (and the Commissioner’s motion, if applicable). FOR THESE REASONS, THE TRIBUNAL ORDERS AND DIRECTS THAT: [26] The Commissioner’s motion to strike filed on June 4, 2025, will not be scheduled for a hearing prior to the week of September 29, 2025. [27] The Tribunal directs the Commissioner, within 14 days of receiving this Order, Direction and Reasons, to advise Google and the Tribunal whether he will proceed to argue his motion to strike separately from the rest of his response to Google’s constitutional challenge. [28] If the Commissioner decides to proceed with his motion, it will be returnable on September 29, 2025, and heard during that week. The Commissioner and Google may file legal argument as set out in the Reasons, and the Bifurcation and Scheduling Order is amended accordingly. Oral arguments will begin on Monday, September 29, 2025, and will start with Google. [29] In any event of paragraphs 26 to 28, costs are reserved to the determination of Google’s motion and the Commissioner’s motion to strike (if applicable). DATED at Ottawa, this 11th day of June 2025. SIGNED on behalf of the Tribunal by the Chairperson. (s) Andrew D. Little COUNSEL OF RECORD: For the applicant: Commissioner of Competition Alexander M. Gay Donald Houston John Syme Derek Leschinsky Katherine Rydel Sanjay Kumbhare For the respondents: Google Canada Corporation and Google LLC Kent. E. Thomson Elisa K. Kearney Chantelle T.M. Cseh Chanakya A. Sethi Chenyang Li Alisa McMaster