A Three-Year-Old Law Gets Its First Detailed Rulebook
On July 15, 2026, the Competition Bureau opened a public consultation on proposed new Cartel Enforcement Guidelines — a consolidated rulebook for how it will enforce sections 45 to 49 of the Competition Act, covering price-fixing, bid-rigging, market allocation, supply restriction, and, notably, wage-fixing and no-poaching agreements between employers. The consultation runs through September 13, 2026, and for the first time lays out worked examples distinguishing legitimate joint ventures and franchise arrangements from per se criminal labour-market collusion.
This matters for the tech sector specifically because no industry has a longer paper trail on employee no-poach pacts. Canada's own labour-market provision, subsection 45(1.1), came into force on June 23, 2023, making it a standalone criminal offence — punishable by up to 14 years' imprisonment — for unaffiliated employers to agree to fix wages or refrain from soliciting each other's staff. The offence requires no proof of market impact, a low evidentiary bar by design.
Why the Guidelines Exist: A Loophole Parliament Had to Close
The backstory explains why detailed criteria are needed now. In November 2020, the Bureau publicly concluded that no-poach and wage-fixing deals fell outside the existing criminal conspiracy provision altogether — section 45 only criminalized agreements over the supply of a product, and labour is purchased, not supplied. Buyer-side collusion could only be challenged civilly, under section 90.1, which offers no fines, no prison time, and no private damages. Parliament closed that gap in its 2022 Competition Act amendments, and the resulting subsection 45(1.1) is the provision now being operationalized.
The steelman case for treating this seriously is strong. Labour markets, especially for specialized software and hardware engineers, are genuinely susceptible to employer collusion: workers can't diversify across many buyers the way sellers of goods can shop across many buyers, switching costs are high, and covert no-solicit handshake deals are hard for outsiders to detect. The canonical cautionary tale is American, not Canadian: Apple, Google, Intel, Adobe, Intuit, Pixar, Lucasfilm and eBay were all named in the DOJ's 2010 case alleging secret no-cold-call agreements, which culminated in Apple, Google, Intel and Adobe paying $415 million to settle a related class action in 2015. Given how tightly Canadian tech hubs — Toronto-Waterloo, Vancouver, Montreal — are wired into the same cross-border talent pool and often share US parent companies, that history is directly on point, not an imported curiosity.
The Case for Restraint: Clarity Beats Breadth
But criminalizing conduct is not the same as making it enforceable, and here the record so far cuts against alarm. In the three years since section 45(1.1) took effect, no criminal charges have been publicly announced under the provision — a gap consistent enough that Canadian competition-law commentary treats the offence as largely untested rather than actively litigated. That is not evidence the law is toothless; it may reflect that per se criminal liability, requiring proof beyond a reasonable doubt of an actual agreement between competing employers, is a genuinely high bar, as it should be for conduct carrying a 14-year sentence.
It is also why detailed guidelines are the right instrument rather than a symbolic gesture. A criminal offence with no market-effects test is unusually broad on its face — it can, read literally, sweep in ordinary commercial arrangements: non-solicit clauses in M&A deals, joint-venture staffing terms, franchise system restrictions, or vendor agreements with incidental hiring carve-outs. The Bureau's own materials for this consultation confirm the guidelines will address the ancillary restraints defence and walk through exactly these scenarios — joint ventures, franchise systems, labour agreements, bid-rigging — precisely because the plain statutory text doesn't do that work on its own. Overbroad, ambiguous criminal exposure chills legitimate business collaboration (a joint R&D venture with a shared non-solicit clause is not a Silicon Valley-style cartel) far more effectively than it deters the deliberate wage-suppression conduct Parliament actually meant to target. Sharper line-drawing is a genuine improvement, not regulatory overreach dressed up as clarity.
What Comes Next
For tech employers, HR counsel, and Canadian subsidiaries of US multinationals — the exact population with institutional memory of the Silicon Valley litigation — the September 13 deadline is the moment to shape that line-drawing rather than react to it after the fact. The Bureau is simultaneously consulting on updated Merger Enforcement Guidelines, suggesting a broader modernization push rather than a tech-specific crackdown. The right outcome is guidelines specific enough that ordinary hiring and staffing arrangements aren't chilled, while the deliberate collusion the 2022 amendments were built to catch remains squarely, and predictably, illegal.