The C.D. Howe Institute’s Competition Policy Council weighs in
The C.D. Howe Institute’s Competition Policy Council objected to exempting competitor collaborations and mergers from the application of the Competition Act on public interest grounds, in the context of the COVID-19 crisis.
A letter written on behalf of the Canadian Bar Association’s Competition Law Section, addressed to Minister of Innovation, Science and Industry Navdeep Bains, called for the amendment of the Competition Act to permit the Minister to exempt such collaborations and mergers from the application of the act on the basis of public interest.
But the majority of C.D. Howe’s Competition Policy Council disagreed with this view, stating that the Competition Bureau and the Director of Public Prosecutions should exercise discretion over these collaborations and “crisis cartels.” Amending the Competition Act to include this public interest exception may politicize conduct and may jeopardize the competitive process and competition law enforcement in Canada in general, warned the council.
In its report titled “The End of Laissez-faire? Through Crisis and Recovery, Enforce Competition and Safeguard Open Markets,” the council commended the government’s initiatives to manage the economy and to support industries affected by the pandemic. It also approved of the Competition Bureau’s recently strengthened enforcement against deceptive and misleading marketing claims.
The council then recommended certain priorities in competition law enforcement moving forward.
The council said that the Bureau should ensure that the government’s emergency measures remain temporary and target specific market imperfections so that these interventions do not have a sweeping impact on the competition landscape in the long run.
The council also said that the Bureau should consider participating in forums with stakeholders from legal and business communities and should preferably be involved in the newly announced Industry Strategy Council. The council then urged the Bureau to adopt a more flexible, practical and expedited merger review process.
The C.D. Howe Institute is an independent not-for-profit research centre that aims to boost living conditions through sound public policies. Members of its Competition Policy Council include Grant Bishop, co-chair of the council and associate director for research at the institute; Elisa Kearney, interim co-chair of the council and partner at Davies Ward Phillips & Vineberg LLP; and
Edward Iacobucci, competition policy scholar at the institute, and dean at the University of Toronto Faculty of Law.
