4-year strategic plan shows intention to increase use of interim measures, say competition lawyers
The Competition Bureau of Canada plans to sharpen its focus on the digital economy, according to its recently released four-year strategic vision.
On Feb. 11, Canada’s competition watchdog released Competition in the digital age: The Competition Bureau’s Strategic Vision for 2020-2024. In the plan, the bureau promises to enhance proactive intelligence gathering tools, develop new digital intelligence gathering tools and host a summit on digital enforcement. The Bureau said it plans to focus on key sectors in the economy: financial services, health, online marketing and infrastructure.
“The commissioner is sending a clear signal that the digital economy will be a focus of his and the Bureau's attention in all respects,” says Antonio Di Domenico, partner and co-leader of the antitrust, competition and marketing group at Fasken Martineau DuMoulin LLP.
The Bureau’s digital focus comes as the digital economy represents an increasingly larger share of Canada’s GDP. Last year, Statistics Canada reported that from 2010 to 2017, the nominal GDP of digital economic activities grew by 40 per cent, while growth over the same period in the overall economy grew by just 28. This digital expansion also created four-times as many jobs than were created in the rest of the economy.
In the plan, the bureau states that although not all their investigations relate to conduct in the digital economy, most of the evidence they collect is digital. To deal with the data colossus, the bureau said it will be piloting and implementing advanced analytical models, algorithms, automated processes and artificial intelligence capabilities. The bureau also plans on hosting a “Digital Enforcement Summit Series,” with domestic and international stakeholders.
David Rosner, co-chair of the competition, antitrust and foreign investment group at Goodmans LLP, says he wonders what stocking the digital tool-kit will mean for clients with matters before the bureau.
“As a practitioner, one of the things that I worry about is what will it mean for the speed of cases while bureau educates itself about these new processes. In other words, the attempt to use new processes, will that potentially slow cases down?” Rosner says.
He adds that the debut of new digital tools raises the question whether competition lawyers will have an opportunity to participate in and give comments on their development. Analytical modelling and AI can be contentious and debate-igniting topics, he says.
“Practitioners, traditionally, don't have an opportunity to see what is happening behind the curtain,” he says. “Does that potentially lead the bureau into mistakes in the future if they don't have the benefit of their analysis being tested by private parties, or their evidence-gathering being tested by private parties?”
The plan also signals the bureau will be more aggressive against potentially anti-competitive conduct, earlier in the process, via interim measures, says Rosner. That would be in stark contrast to 2019, he says. In two mergers it challenged last year – the acquisition of a Manitoba grain elevator by Parrish and Heimbecker from Louis Dreyfus Co. and Aucerna’s acquisition by Thoma Bravo – the bureau had concerns over an aspect of the deal but permitted it to close and sued after the fact, rather than seeking an interim measure, he says.
“They're clearly saying they intend to use interim measures here but their practice the last year at least has not been to pursue that very aggressively,” Rosner says.
The commitment to new and improved digital intelligence gathering tools could be a further sign the bureau will look at mergers which don’t rise to the threshold of requiring a notification, says Di Domenico. He says the bureau has previously indicated its concern with non-notifiable transactions and the use of algorithms and web-scraping and the frequent mention of mergers in the plan could show that these smaller, under-the-radar transactions are in the bureau’s crosshairs.
“To me, that's a signal that efforts to look at and review non-notifiable transactions is a serious priority of the bureau,” he says.
In May of 2019, the Federal Government called on the Competition Bureau to address the “unprecedented challenges” arising from digital technology, including scrutinizing the potentially anti-competitive nature of big data.