Competition & Antitrust

On May 28, 2013, Canada's Interim Commissioner of Competition, John Pecman, announced a new Action Plan on Transparency and underscored the Bureau's commitment to rebuild trust with stakeholders through increased collaboration. He also announced a new Whistleblowing Initiative, signalling a desire to remain vigilant in the area of criminal cartel prosecution.

Emphasis on Collaborative Approach

The Interim Commissioner expressed his intent to build a "Bureau without borders" by increasing collaboration with stakeholders, developing a stronger relationship with sectoral regulators and enhancing co-operation with international enforcement agencies. He also announced the re-establishment of "sector days", which will permit companies to provide specific information to the Bureau regarding the competitive landscape of their particular industries. Sector days may provide businesses and their industry associations with an ideal opportunity to educate the Bureau on key competition issues facing their respective industries and on nascent developments that are likely to alter the competitive environment in the future.

In the mergers context, the Bureau will encourage parties to be more proactive in raising potential competition issues and proposing solutions from the onset of merger reviews. This is consistent with the Bureau's recent enhanced encouragement of pre-filing dialogue with merging parties. Also, in an apparent departure from past practice, the Bureau will try to provide greater visibility into its economic analysis in particular reviews, such as by providing more information regarding its methodology and assumptions.

In the criminal context, the Bureau introduced a new Criminal Cartel Whistleblowing Initiative, which aims to encourage the reporting of possible violations of Canada's criminal cartel provisions. The Bureau's commitments in this regard build on the statutory protections of the Competition Act, and provide additional assurances to keep the identity of a whistleblower confidential.

While the Interim Commissioner indicated that the Bureau will attempt to resolve its competition concerns by way of consent, he also underscored that it will not hesitate to take formal enforcement action where required.

Enhancing Transparency and Predictability

Consistent with previous statements, the Interim Commissioner emphasized a shift towards greater transparency and predictability in the application of Canada's competition laws. Some of the initiatives that the Bureau will pursue include: development of new bulletins and guidelines; publishing information about the outcome of inquiries; and developing guidance on investigations and stakeholder communications.

To this end, he announced a new Action Plan on Transparency which, among other things, involves publishing additional guidance documents and providing information regarding the outcome of Bureau inquiries. In addition, while the Bureau historically has been reluctant to provide details on its economic analysis during a review, it will aim to do so going forward.

Compliance as a Competitive Advantage

The Interim Commissioner strongly emphasized the importance of compliance for gaining a competitive advantage. A strong record of vigorous compliance with competition law promotes financial stability, and can improve a company's reputation as well as its ability to attract and retain employees. From the Interim Commissioner's remarks, it is insufficient to merely design, implement and monitor a compliance program. To meet the evolving needs of a business and to be effective throughout an organization, competition compliance programs must be continuously revised and updated, and must be championed by senior business leaders.

Increased Regulatory Interventions

The Interim Commissioner highlighted the Bureau's commitment to increasing strategic interventions within the regulated sector by making submissions to and appearing before other government regulatory agencies, with the aim of increasing competition in Canada's regulated industries. He also indicated that the Bureau's approach to interventions is evolving and that it will be seeking feedback from stakeholders in this regard.