PUBLIC
THE COMPETITION TRIBUNAL
CT-2024-010
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34; 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
-and-
GOOGLE CANADA CORPORATION AND GOOGLE LLC
Applicant
Respondents
RESPONSE OF GOOGLE LLC AND GOOGLE CANADA CORPORATION TO THE DEMAND FOR PARTICULARS DATED FEBRUARY 25, 2025
Google LLC (“Google”) and Google Canada Corporation (“Google Canada”) take the position that the particulars demanded by the Commissioner of Competition (the “Commissioner”) in his Demand for Particulars dated February 25, 2025 (the “Demand”) are not necessary to allow the Commissioner to prepare and deliver a Reply to the Response of Google and Google Canada dated February 14, 2025 (the “Response”). The particulars provided by Google and Google Canada below are provided without prejudice to Google’s and Google Canada’s position in this regard, as
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well as the positions they have taken in their Notice of Constitutional Question dated February 14, 2025. Google and Google Canada reserve all of their rights.
Unless otherwise defined herein, capitalized terms have the meanings ascribed to them in the Response.
A. PARAGRAPH 1(A)(I) OF THE DEMAND Demand:
Provide particulars of “each Article of CUSMA, and clause therein, that Google alleges to include a conflicting obligation” in respect of the financial penalty sought by the Commissioner.
Particulars: Google and Google Canada rely upon Chapter 21 of the CUSMA, including Article 21.2(9).
B. PARAGRAPH 1(A)(II) OF THE DEMAND Demand:
Provide particulars of “the material facts of the conflict so alleged by Google” between the CUSMA and the financial penalty sought by the Commissioner.
Particulars: Contrary to Article 21.2(9) of the CUSMA, the Commissioner has sought an extraordinary and unprecedented financial penalty against Google and Google Canada that is based on a non-transparent calculation and based on: (i) benefits allegedly derived by Google and Google Canada on a worldwide basis; and (ii) the annual worldwide gross revenues of Google and Google Canada.
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The CUSMA prohibits the Commissioner from seeking a financial penalty against Google and Google Canada based on a non-transparent calculation or based on revenues or profits earned by Google and Google Canada outside Canada.
C. PARAGRAPH 1(B)(I) OF THE DEMAND Demand:
Provide particulars of “each Article of CUSMA, and clause therein, that Google alleges to include a conflicting obligation” in respect of the divestiture order sought by the Commissioner.
Particulars: Google and Google Canada rely upon Chapter 19 of the CUSMA, including Article 19.16.
D. PARAGRAPH 1(B)(II) OF THE DEMAND Demand:
Provide particulars of “the material facts of the conflict so alleged by Google” between the CUSMA and the divestiture order sought by the Commissioner.
Particulars: AdX and DFP are Ad Tech tools and services that contain software, source code and algorithms that are owned and operated by Google, a corporation that is incorporated and headquartered in the U.S.
Contrary to Article 19.16 of the CUSMA, the Commissioner has sought an Order from the Tribunal in his Notice of Application requiring Google “to divest [its] publisher ad server, DFP, and [its] ad exchange, AdX, along with any additional relief as needed to restore competition and overcome the
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effects of Google’s anti-competitive practice in Canada” (the “Divestiture Order”). The Divestiture Order has been sought as a condition of the continued import, distribution, sale or use by Google (and others) in Canada of AdX or DFP, or of products containing or using AdX or DFP.
The CUSMA prohibits the Commissioner from requiring the transfer of, or access to, the source code of software owned by a company incorporated in the U.S. (i.e., Google) as a condition of the import, distribution, sale or use of that software, or of products containing or using that software, in Canada. The software in question includes at least AdX and/or DFP (or any and all algorithms expressed in the source code of AdX and/or DFP).
E. PARAGRAPH 2(A) OF THE DEMAND Demand:
Provide particulars of “each Article of CUSMA, and clause therein, that Google alleges to proscribe the jurisdiction of the Competition Tribunal to grant the divestiture order sought by the Commissioner”.
Particulars: See Section C above.
F. PARAGRAPH 2(B) OF THE DEMAND Demand:
Provide particulars of “each proprietary software and algorithm Google alleges is immune from divestiture under CUSMA”.
Particulars: All software, source codes and algorithms owned and operated by Google are “immune from divestiture under CUSMA”.
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G. PARAGRAPH 2(C) OF THE DEMAND Demand:
Provide particulars of “the material facts as to why Google alleges CUSMA proscribes the jurisdiction of the Competition Tribunal to grant the divestiture order sought by Commissioner, including specifically in respect of each proprietary software and algorithm referred to in paragraph 2(b), above”.
Particulars: See Section D above.
H. PARAGRAPH 3(A) OF THE DEMAND Demand:
Provide particulars of “each Article of CUSMA, and clause therein, that Google alleges is inconsistent with Canada’s obligation under CUSMA” in respect of the magnitude of the financial penalty sought by the Commissioner.
Particulars: See Section A above.
I. PARAGRAPH 3(B) OF THE DEMAND Demand:
Provide particulars of “the material facts of the inconsistency [under the CUSMA] so alleged by Google” in respect of the magnitude of the financial penalty sought by the Commissioner.
Particulars: See Section B above.
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March 14, 2025
PUBLIC
DAVIES WARD PHILLIPS & VINEBERG LLP 155 Wellington Street West Toronto ON M5V 3J7
Kent E. Thomson (LSO# 24264J) Tel: 416.863.5566 Email: kentthomson@dwpv.com
Elisa K. Kearney (LSO# 49342T) Tel: 416.367.7450 Email: ekearney@dwpv.com
Chantelle T.M. Cseh (LSO# 60620Q) Tel: 416.367.7552 Email: ccseh@dwpv.com
Chanakya A. Sethi (LSO# 63492T) Tel: 416.863.5516 Email: csethi@dwpv.com
Chenyang Li (LSO# 73249C) Tel: 416.367.7623 Email: cli@dwpv.com
Tel: 416.863.0900 Fax: 416.863.0871
Lawyers for the Respondents, Google Canada Corporation and Google LLC
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TO:
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ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services Place du Portage, Phase I 50 Victoria Street, 22nd Floor Gatineau, QC K1A 0C9
Alexander M. Gay Email: alexander.gay@cb-bc.gc.ca Donald Houston Email: donald.houston@cb-bc.gc.ca John Syme Email: john.syme@cb-bc.gc.ca Ian Clarke Email: ian.clarke@cb-bc.gc.ca Katherine Rydel Email: katherine.rydel@cb-bc.gc.ca Sanjay Kumbhare Email: sanjay.kumbhare@cb-bc.gc.ca
Tel: 613.296.4470 Fax: 819.953.9267
Lawyers for the Applicant, the Commissioner of Competition
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