At a recent event, Canada’s Interim Commissioner of Competition, John Pecman, addressed the current activities and priorities of the Competition Bureau.
In his speech, Commissioner Pecman confirmed that the Competition Bureau will focus on three priority areas to ensure that Canadian businesses and consumers prosper in a competitive marketplace. The three priorities are:“benefitting Canadians, through focused enforcement and through strategic regulatory interventions; applying Canada's competition laws in a transparent and predictable manner and, building trust through enhanced collaboration.”
In line with the Competition Bureau’s objectives of transparency and predictability, Commissioner Pecman also gave notice that the Bureau will be placing greater emphasis on the use of section 11 orders to gather information in non-merger matters, as opposed to relying on voluntary information requests (“VIRs”).Section 11 of the Competition Act permits the Commissioner to seek ex parte court orders to compel a person to be examined under oath, to produce records, or to respond to questions in writing, where that person has, or is likely to have, information relevant to an inquiry. It is worth noting that the use of section 11 orders is not limited to targets of an inquiry but to anyone who has or is likely to have information relevant to an inquiry, which could include a target’s suppliers, customers, and competitors, among other industry participants.
Commissioner Pecman described various examples of delays and incomplete responses arising from the VIR process as the rationale for the new policy. He also expressed concern that parties may be using the VIR process for their own strategic purposes, resulting in inefficient, incomplete, and untimely responses. In order to address these issues and preserve the integrity of the Competition Bureau’s investigative process, the Commissioner declared that “going forward, the Bureau's first course of action in obtaining information from the target of a formal inquiry in non-merger cases will be, for all but exceptional cases, obtaining a legally binding section 11 order from the Court.”The Commissioner did not, however, confirm whether this new investigative policy would also apply to persons who are not the targets of an inquiry but who have, or are likely to have, information relevant to an inquiry.
The Commissioner added that the use of section 11 orders should not be viewed as punitive in nature, but rather as a means for the Competition Bureau to conduct investigations rigorously and efficiently. He also noted that the use of section 11 orders increases both transparency and certainty into the process by providing a clear framework, timelines, and a set of rules, which benefit both the Bureau and the targets of its investigations.
In addition to his clarification on the use section 11 orders, Commissioner Pecman also announced that in the near future, the Competition Bureau will be working collectively with the bar on various initiatives, as per the Bureau’s enhanced collaboration objective. These initiatives include: discussing issues that have arisen in the context of electronic document production; developing clear guidelines on the Price Maintenance provisions; and updating the “FAQs”associated with the Bureau’s Leniency program, to reflect developments and to respond to feedback from stakeholders.