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 Applicant -and- GOOGLE CANADA CORPORATION AND GOOGLE LLC Respondents
CMC BRIEF OF THE COMMISSIONER (Case Conference, June 6, 2025)
Introduction – General Remarks
1. Google seeks to avoid the Commissioner’s motion to strike. The Competition Act (“Act”) is regulatory legislation that sets out a number of explicit guardrails that do not allow the Tribunal to issue an AMP amount that is penal. While completely ignored by Google, sections 79(3.2) and 79(3.3) specifically call on the Tribunal to issue an AMP amount that is remedial in nature and not punitive, taking into account a number of aggravating and mitigating factors. This Tribunal does not have the requisite authority to issue an AMP that is penal and to the extent that it does in a manner that is contrary to the law, it would be ultra vires the Act.
2. Regardless, even if it is assumed that these legislative guardrails do not exist or that they somehow have no legal force, the AMP amount is ultimately at the sole discretion of the Tribunal which may, from a host of possibilities decide: (a) that there is no liability; (b) that no AMP amount is warranted; or, (b) it may order an AMP that is de minimus. Thus, the suggestion by Google that the Tribunal will issue a maximum AMP and that this poses some Charter risk for Google is speculative and, worse, assumes that the Tribunal will exceed its jurisdiction. This is not a basis upon which to launch a constitutional challenge and there is no real or prospective Charter breach in these circumstances. If and when the Tribunal decides on such matters, Google will be afforded with an opportunity to challenge the AMP that exceeds the jurisdiction of the Tribunal.
3. The Commissioner’s motion to strike should not come as a surprise to Google or the Tribunal. The Commissioner has been categorical in his messaging to Google and to the Tribunal as it relates to the legal merits of the constitutional challenge. Counsel has repeatedly stated that it did not see how there could be a breach of a Charter right in the absence of an AMP. The quantum is not prescribed in the Act and the discretion afforded to the Tribunal is an important consideration. The Commissioner has remained patient, waiting for Google to explain the alleged Charter breach. With the Notice of Motion and the appended affidavits, it has
become abundantly clear that there is no legal merit whatsoever to the Google challenge, short of what may be some unknown strategic considerations. Not a single AG at the provincial level has shown any interest in a challenge that is destined to fail.
4. While a motion to strike a motion is rare and calls for the Tribunal to conclude that the motion before it is bereft of any possibility of success, it is a procedural response that is appropriate and to be welcomed by the Tribunal in certain circumstances. This is such a case. Firstly, a cursory review of the Google legal position discloses that the constitutional challenge is bereft of any possibility of success. Section 79(3.3) is unequivocal in stating that no punitive AMP can be awarded by the Tribunal. Secondly, Google is asking the Commissioner and this Tribunal to expend four days of hearing time, not to mention forcing the Commissioner to file responding materials and engage in cross-examinations on a matter that should not even be before this Tribunal. This does not encapsulate the prospect of possible motions stemming from the procedural steps that are to be taken in this constitutional challenge. The judicial economies achieved in having this motion to strike heard make an abundance of sense when assessed against the resources that will be expended on a motion that is bereft of any possibility of success.
5. The Commissioner’s motion to strike rests on the law, not the facts. The Commissioner has already filed a factum which is all it requires to have the matter adjudicated. The two main issues are whether: (a) the Tribunal either has or does not have jurisdiction under the Act to issue a penal sanction; and (b) in the face of a legislative framework where the AMP amount is at the sole discretion of the Tribunal, it be said that there is either a real or prospective breach of a Charter right. The evidentiary record of Google does not affect the Tribunal’s jurisdiction to decide the purely legal questions now raised and briefed the Commissioner’s motion materials. The Commissioner is in a position to deliver a “knock out” punch without the evidence.
6. While counsel for Google proposes to spend an inordinate amount of time on the evidence that it has filed, which arguably defeats the judicial economies that are to be gained in having the motion to strike heard as a preliminary matter, this is immaterial. The Commissioner’s straightforward motion to strike can be heard in 3 hours. Regardless, while the volume of pages that Google has filed is large, the two expert affidavits are not. While it is unnecessary to spend much time on the evidence given the legal issues that are raised by the Commissioner, if Google wishes to spend its time allocation on this evidence, it is free to do so, The evidence does not serve to expand the jurisdiction of the Tribunal nor does it re-write the Act.
7. The further suggestion by Google counsel that it will appeal the results of the Commissioner’s motion is very troubling. Parties have rights of appeal, which they may or may not decide to exercise. That is the cornerstone of our legal system, which ensures that all remains within the confines of the law. However, it is another thing to threaten an appeal to attack a decision that has not yet been made. The threat of an appeal should not factor into any decision that is to be made by the Tribunal.
8. While Google has made reference to a number of cases where the Federal Court has shown some reticence to strike a legal proceeding, the cases referenced are for the most part not relevant or helpful. Firstly, there is a distinction between a motion to strike an application and a motion to strike a motion. The cases referenced by Google relate primarily to motions to strike applications brought under either s. 18.1 or s. 28 of the Federal Courts Act, which are generally seen as expedited proceedings for which motions to strike are to be discouraged. This nearly 24-month schedule for this proceeding is a different animal. This is a motion to strike an unmeritorious and lengthy motion for which Google has asked for four days, all within the context of a hearing schedule that was elongated from the suggested timelines in the Tribunal’s Practice Direction at its request.
9. The assertion that the Scheduling Order precludes the Commissioner from bringing a motion to strike makes little sense. If the Commissioner is successful on
a 3 hour motion, the consequence is that the constitutional challenge will no longer be required, with a net gain of at least four days, not to mention all of the resources expanded in hearing the matter. Lengthy motion records, cross-examinations and possible motions will be avoided. Secondly, the constitutional challenge was also intended to run in parallel with the steps to be taken in the Application. Hearing a motion to strike will therefore have no consequence on the Scheduling Order.
10. While the Commissioner has agreed to a Scheduling Order, it has by no means given away its right to bring motions in these proceedings, especially motions to strike on matters that are bereft of any possibility of success. Google will most certainly bring motions as will the Commissioner during the course of these proceedings, even if not expressly provided for in the Scheduling Order. To suggest that the Scheduling Order shuts the door on interlocutory motions is a non-starter and certainly not what was agreed to by the parties. There is not a single statement in the record to suggest that the Commissioner has waived its right to bring motions.
11. Regardless, the issue is not whether a motion to strike may be brought by the Commissioner. A party has a right to bring a motion. Rather, the issue is whether a motion to strike can be heard before the constitutional challenge that is scheduled for September 2025, and whether it achieves some judicial economy. This is what is determinative of the matter that is before this Tribunal. The choice is to hear a protracted motion which will include evidence and cross-examinations, or to allow the Commissioner to move forward on a three hour motion to persuade this Tribunal that the prospect of an AMP that is penal is not possible under the Act..
Procedural Basis for the Motion 12. Google appears to suggest that a motion to strike is not possible. It arrives at this conclusion on a restrictive reading of the Act and the Tribunal Rules. The Commissioner disagrees with this contention. Motions to strike are brought both before the Federal Court and the Federal Court of Appeal. The “gap rule” allows for it here, as does subsection 9(2) of the Competition Tribunal Act, which requires
the Tribunal to deal the matters before it as informally and expeditiously as the circumstances and considerations of fairness permit.
13. Pursuant to the “gap rule” in rule 34(1) of the Competition Tribunal Rules 1 , the Tribunal has jurisdiction to consider a motion to strike under rule 221 or rule 4 of the Federal Courts Rules. 2 Additionally, the Tribunal has been conferred the ability to supplement these rules where it deems appropriate under rule 2(1) of the Competition Tribunal Rules 3 and its jurisdiction to dispense with all matters pursuant to s. 8(1) of the Competition Tribunal Act. The Commissioner does not purport to latch this Tribunal’s jurisdiction to hear the motion to strike strictly to Rule 221. The Tribunal may dismiss a notice of motion which is bereft of any possibility of success. 4 That standard is met when there is a “show stopper”, a “knockout punch”, or an obvious fatal flaw striking at the root of the Court’s power to entertain the application. 5
14. The standard for striking a notice of motion is arguably higher than that for striking an action. This is because motions are summary proceedings. Striking a notice of motion therefore may not, to the same extent, offer the efficiencies as striking an action which typically would include a number of time-consuming steps, including discovery and a trial, with oral evidence. 6 But as the Commissioner has highlighted, Google’s constitutional challenge is not the typical motion. Its various steps highlight that it has a character analogous to that of an action, namely two days of viva voce evidence for cross examination, a voluminous motion record of 10,028 pages (which does not even consider the Commissioners responding record), and a 4 day motion, which as Commissioner’s counsel has pointed out is longer than some
1 Competition Tribunal Rules, SOR/2008-141 [CT Rules]. 2 Federal Courts Rules, SOR/98-106. 3 SOR/2008-141 4 David Bull Laboratories (Canada) Inc v Pharmacia Inc (CA), 1994 CanLII 3529 (FCA), [1995] at p. 600 5 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; Hunt v Carey Canada Inc, 1990 CanLII 90 (SCC), [1990] 2 SCR 959. 6 David Bull Laboratories at pp 596-597.
trials. To not strike the motion strictly because it is a motion, would be placing the importance on labels alone without regard for the judicial economies. Google’s constitutional motion should be considered and dismissed in the context of this strike motion for the reasons explained above.
Dated at the City of Ottawa, in the Province of Ontario, this 4th day of June, 2025.
ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services
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
Derek Leschinsky Email: derek.leschinsky@cb-bc.gc.ca
Katherine Rydel Email: katherine.rydel@cb- bc.gc.ca Sanjay Kumbhare Email: sanjay.kumbhare@cbbc. gc.ca
Lawyers for the Commissioner of Competition
TO: DAVIES WARD PHILLIPS & VINEBERG LLP 155 Wellington Street West Toronto, ON, M5V 3J7 Tel: (416) 863-0900 Fax: (416) 863-0871
Kent E. Thomson Email: kentthomson@dwpv.com
Elisa K. Kearney Email: ekearney@dwpv.com
Chantelle T.M. Cseh Email: csethi@dwpv.com
Chanakya A. Sethi Email: csethi@dwpv.com
Chenyang Li Email: cli@dwpv.com
Lawyers for the Respondents, Google Canada Corporation and Google LLC
Date of CMC January 9, 2025
January 9, 2025
January 9, 2025
January 9, 2025
February 27, 2025
February 27, 2025
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Speaker Alexander Gay, General Counsel CBLS
Alexander Gay, General Counsel CBLS
Alexander Gay, General Counsel CBLS
Alexander Gay, General Counsel CBLS
Alexander Gay, General Counsel CBLS
Alexander Gay, General Counsel CBLS
Transcript Excerpt So -- and the reason I say that is that the suggestion somehow that this should be decided or that somehow there should be a preliminary motion up front, in my view, is simply not possible in this case, or certainly not advisable. We’d be essentially looking at or challenging -- or having a challenge to a provision without the benefit of the factual matrix.
Now, in all cases, and I’ve looked at this, where there have been constitutional challenges before the Tribunal, they have always been done within the case itself rather than as a preliminary motion.
What I say to you is -- number one, is that the concerns he’s raised I think are fairly weak and, number two, it isn’t a matter that can’t otherwise be heard within the context of a case and not as a preliminary motion.
And so for those reasons, we say is that (a) it -- you know, a preliminary motion isn’t appropriate, and to the extent the Court wishes to hear that, then it should be -- or should form part of the main case and we can deal with it as part of the main case.
The Tribunal has not made an award that would otherwise breach their constitutional rights. All we have is a hypothetical and a possibility that a constitutional right may be breached in the future if the Tribunal decides to award the maximum amount.
There has been no breach of a constitutional right, full stop. And until the Tribunal awards something and determines that the amount is the maximum amount
February 27, 2025
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Alexander Gay, General Counsel CBLS
found in that provision 79 that there’s nothing to argue over. I mean, that’s certainly my view.
It -- you know, as far as evidence, I’m not suggesting that constitutional challenges don’t require evidence. That’s not what I’m saying. What I’m only saying is that evidence in relation to the breach of a constitutional right when one hasn’t occurred does not require evidence because it hasn’t happened. And so what I think Mr. Thomson is proposing is, for instance, affidavits from behavioural economists on how this has impacted on Google. I don’t think that’s necessary in light of what the facts are that will be before you and the fact that there is no breach of a constitutional right until such time as the Tribunal has made an AMP or an order or a decision, and only then has something happened.