Practical Law Canada Competition, of which I am Lawyer Editor, has published a new Legal Update, which discusses a recent speech by the Commissioner of Competition calling for modernization of Canadian competition law. Below is an excerpt with a link to the full Legal Update.
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This Legal Update discusses a recent speech by Canada’s Commissioner of Competition advocating for more competition in Canada, including the modernization of Canadian competition laws. The Update discusses the Competition Act, R.S.C. 1985, c. C-34 amendment recommendations made by the Competition Bureau, recent calls by other commentators to amend Canada’s competition laws, and the potential implications of these amendments for competition in Canada and Canada’s ability to compete internationally.
On October 20, 2021, the Competition Bureau (Bureau) issued a new speech by the Commissioner of Competition (Commissioner), Matthew Boswell, advocating for increased competition in Canada, including the modernization of Canadian competition laws (see Commissioner of Competition advocates for more competition in remarks to Canadian Bar Association, Competition Bureau, October 20, 2021).
The Commissioner’s speech, delivered at the Canadian Bar Association’s Competition Law Fall Conference, follows other recent calls for reforms to Canadian competition law, including the C.D. Howe Institute’s Competition Policy Council and other commentators, for stronger Bureau enforcement powers (for example, to investigate Big Tech and anti-competitive upstream agreements between competitors) (see Distilled Wisdom: Top Legal and Economic Experts on the Most Needed Competition Reforms, C.D. Howe Institute, September 9, 2021, and Opinion: “Why Canada’s toothless Competition Bureau can’t go after Big Tech”, National Post, March 26, 2021). See also Legal Updates, Canadian Competition Law Recommendations for Next Government Made by the C.D. Howe Institute’s Competition Policy Council and Competition Bureau Reiterates Narrow Enforcement Position on No-Poaching and Wage-Fixing Agreements Between Competing Employers.
In his speech, the Commissioner affirmed that the Bureau’s budget will increase by $96 million over the next five years and by $27.5 million annually after that, which was proposed under the Canadian federal government’s Budget 2021, A Recovery for Jobs, Growth and Resilience, April 19, 2021.
The Commissioner also outlined three broad areas for investment of a newly increased five-year budget: increasing the Bureau’s capacity to investigate complex anti-competitive conduct, particularly in digital markets and creating a new Digital Enforcement and Intelligence Branch; strengthening the Bureau’s internal and external enforcement teams; and enhancing the Bureau’s capacity to advocate for pro-competitive regulatory and policy changes by Canadian governments.
The Commissioner also discussed some of the current specific deficiencies of the Competition Act, R.S.C. 1985, c. C-34, including the following:
Weak maximum available criminal fines and civil penalties that don’t meaningfully deter anti-competitive conduct. The maximum fines and administrative monetary penalties under sections 45 and 79 of the Competition Act (conspiracy and abuse of dominance) are currently $25 million and $10 million respectively. This is compared to, for example, the United States, where corporations are subject to fines of up to USD100 million under the Sherman Act, and the European Union, where potential fines are up to 10% of a company’s turnover for the preceding business year (Council Regulation (EC) No 1/2003). For more information, see Practice Notes: Canadian Conspiracy (Cartel) Law; Competition Bureau Investigations; and Criminal Competition Law Enforcement.
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For the full Legal Update, see: Commissioner of Competition Calls for Modernization of Canadian Competition Law.
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