Ex Parte, Not Carte Blanche: The FCA Pushes Back On Overbroad Section 11 Requests

Published: 2026-04-22 02:11:09 ET AMZN

Published on 04/22/2026 at 02:11 am EDT

Nobody can credibly disagree that the Competition Bureau (the “Bureau”) should be able to obtain market information to further its investigations. But when those requests become unreasonable – seeking, for example, data fields involving billions of products – limits must be set and the Bureau must respect those limits.

The courts recently conveyed that message to the Bureau, when the Federal Court of Appeal (“FCA”) dismissed the Commissioner of Competition's (the “Commissioner”) appeal over the Federal Court's refusal to grant part of a section 11 production order against Amazon.com.ca, ULC and Amzn Mobile LLC (collectively, “Amazon”). The decisions confirm that production orders under the Competition Act (the “Act”) are not carte blanche – they remain discretionary and must be reasonable in scope.

For businesses facing an investigation or proposed production order, this decision underscores that early and meaningful engagement with the Bureau is of paramount importance. Production order hearings are held ex parte, so it is imperative that businesses clearly articulate in writing their concerns about scope, burden, and relevance of proposed production orders. Sometimes, these written objections will be the only tool the courts have to keep the Commissioner in check.

Background and Key Facts

Section 11 of the Act empowers the Commissioner to apply, ex parte, for a court order compelling the production of records or information relevant to an inquiry or market study. Because the application is heard ex parte, only the Commissioner appears before the court; the respondent cannot attend at that stage, submit evidence, or test the Commissioner's materials.

In this case, the Commissioner commenced an inquiry into whether Amazon permitted fake, vendor-purchased product reviews on its online retail platform, potentially constituting deceptive marketing. The Commissioner sought a section 11 order requiring Amazon to produce extensive transaction data for all products sold in specific categories (the “Data Request”). Amazon told the Commissioner that the Data Request was exceedingly broad, excessive, and unnecessarily burdensome, since it required data for billions of products.

The Federal Court refused to grant the Data Request portion of the production order, citing insufficient justification for its scope and uncertainty as to what was reasonably required for the inquiry. The Commissioner appealed.

The FCA's Decision: Reasonableness Still Matters

A central issue on appeal was the Commissioner's argument that the Federal Court erred by applying the framework set out in Pearson and Bell Mobility, under which a section 11 order may be refused if it is “excessive, disproportionate and unnecessarily burdensome”.

The FCA disagreed, holding that while section 11 orders require two statutory preconditions – an inquiry under the Act and relevance to the inquiry – these factors alone are not determinative, and the issuing judge must still be satisfied that the proposed order is reasonable in the circumstances. More specifically, an order may be refused if its scope is excessive, disproportionate, or unnecessarily burdensome.

Applying this framework, the FCA upheld the Federal Court's refusal to issue the order, emphasizing not only the burden imposed on Amazon, but the breadth and indeterminacy of the Data Request itself, which prevented the Court from meaningfully assessing its reasonableness. As the FCA explained, an application judge cannot determine whether the intrusiveness of a production order is justified “if they do not know the extent of what the state seeks to have produced.”

The FCA also rejected two related procedural arguments advanced by the Commissioner.

First, the Commissioner argued that the application judge improperly relied on untested assertions from Amazon's counsel exchanged in correspondence during pre-hearing engagement with the Commissioner. The FCA disagreed, emphasizing that because section 11 applications are typically heard ex parte, respondents are “literally at the mercy” of the Commissioner. In that context, pre-hearing correspondence is relevant to the court's understanding of scope and reasonableness, as well as objections raised by the respondent – implicitly affirming the value of early, reasoned, and preferably written submissions.

Second, the Commissioner argued that section 11 should operate as a “fix it later” process – allowing a broad production order to first be issued and be narrowed only afterward through a court challenge under Rule 399(1) of the Federal Court Rules by the respondent. The FCA rejected this approach, holding that reasonableness must be assessed when the order is sought, not after it is imposed. In the FCA's view, allowing overbreadth to be addressed later would improperly shift the burden onto the respondent and would be “antithetical to the purpose of prior authorization, which is to balance the parties' interests before the government intrusion occurs.” This reasoning underscores that section 11 requests must be clearly defined and justified from the outset.

Takeaways: Responding to Overbroad Section 11 Orders

The FCA's decision makes clear that the Commissioner's section 11 power has meaningful limits. Production orders remain discretionary and requests must be clearly defined and justified, including explaining why narrower alternatives would be insufficient. Burden and proportionality remain central to this assessment.

From a practical perspective, the decision highlights the importance of early and substantive engagement between the Bureau and parties subject to potential section 11 orders. Given the ex parte nature of section 11 proceedings, respondents should carefully document and communicate any concerns regarding scope or disproportionality, as that record may inform the court's assessment. In particular, in the context production orders issued in connection with inquiries, market studies, or potentially even challenges of Supplementary Information Requests under Part IX of the Act, parties should focus on:

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Nikiforos Latrou McCarthy Tétrault LLP 66 Wellington Street West Suite 5300, TD Bank Tower Toronto ON M5K 1E6 CANADA Tel: 416362 1812 Fax: 416868 0673 E-mail: [email protected] URL: www.mccarthy.ca