On June 26, 2008, Canada’s Competition Policy Review Panel (the "Panel") issued its Final Report entitled Compete to Win (the "Report") after almost 12 months of consultations and research. The Panel was initially established in June, 2007 by the federal Canadian Ministers of Industry and Finance, to review Canada’s competition and foreign investment policies and make appropriate recommendations for making Canada more competitive.
The Report contains 65 legislative and public policy recommendations aimed at: (a) reducing barriers to the entry of foreign investment; (b) adjusting the Canadian competition/anti-trust regime to align with internationally accepted best practices; and (c) boosting Canadian competitiveness. The recommendations assume "raising Canada’s overall economic performance through greater competition will provide Canadians with a higher standard of living."
The Panel's recommendations are, for the most part, a positive contribution to the public policy debate regarding key elements of federal government policy necessary and long overdue reforms.
The key noteworthy recommendations are in the first third of the Report. The key recommendations are highlighted below.
2. Financial Services
The most significant recommendations affecting the financial services industry address (a) the regulation of large financial institutions ownership, and (b) as the Panel describes it, the end of the de facto prohibition of mergers among large financial institutions.
- Retaining the "Widely Held Rule". The current ownership regime requires Schedule I banks (Canadian domestic banks), with equity of over $8 billion, to be widely held (i.e. 20 per cent of any class of voting shares, and up to 30 per cent of any class of non-voting shares). This rule is intended to reduce the risk of lending transactions between a financial institution and persons who are in positions of influence over the institution, known as "self dealing". The financial services industry has argued that liberalizing ownership restrictions governing large financial institutions would enhance competition and allow Canadian financial institutions to compete abroad and allow small and medium-sized businesses to broaden their credit options. The Panel disagreed favouring instead allowing greater international competition, and more competition between bank and non-bank lending institutions. Accordingly, the Panel recommends that the "widely held" rule should be retained.
- Removing De Facto Prohibition on Mergers. The Panel's second recommendation was that the Canadian Minister of Finance should remove the de facto prohibition on mergers of large financial institutions subject to regulatory safeguards. The Report states there is a need for greater scale to compete internationally, including efficiencies resulting from domestic mergers and increased choices in the domestic marketplace. As a result, the Panel recommends that the Minister of Finance remove the prohibition on bank, insurance and cross pillar mergers of large financial institutions.
3. Amendments to the Investment Canada Act (ICA)
The Panel’s recommendations can be viewed primarily as efforts to reduce barriers to entry to foreign investment focused on a few substantive and several procedural issues, while still addressing culturally-sensitive industries. The recommendations are not revolutionary and some have been under discussion for some time. They are, however, necessary and belated modernizations to respond to the perception (not supported by data) that Canada is one of the most restrictive developed countries for foreign investment.
- Raise the Review Threshold. The Panel urges the Minister of Industry to: (a) raise the general review threshold under the ICA from its current $295 million, based on gross assets, to $1 billion, based on enterprise value of the acquired business. This threshold would also apply to the special sectors of transportation (including pipelines), non-federally regulated financial services and uranium mining, which are currently subject to a much lower ICA review threshold of $5 million; and (b) remove the current notice requirement under the ICA for investments below the applicable review threshold as well as for the establishment of new businesses. An increase in the applicable thresholds would certainly serve to reduce the current regulatory burden for much foreign investment, although the shift from asset value to enterprise value would likely increase uncertainty relating to the application of the new threshold in specific instances. Perhaps more importantly, the Panel did not address a continuing problem relating to the scope of the ICA’s current application. In assessing whether an investment meets the applicable threshold for review the total value of an entity’s assets must be considered, regardless of where those assets may be located. As a result, many investments in "Canadian" entities with few operations in Canada, but with a significant international presence, are subject to review, only because of the value of the entities’ operations in countries outside of Canada. There appears to be no clear rationale for continuing to subject such investments to review under the ICA, regardless of a higher threshold for review. This is particularly true in light of the fact that most acquisitions of foreign corporations with Canadian subsidiaries (so-called indirect acquisitions) are now completely exempt from ICA review.
- Shift Onus Under Test. The Panel recommends a shift in the burden of proof under the ICA from the investor (who must currently demonstrate a "net benefit to Canada") to the Government (which must allow the investment unless it can be demonstrated that it would be "contrary to Canada’s national interest"). This recommendation is made on the premise that "foreign investment is, except in unique circumstances, beneficial to Canada." The Panel concludes that this shift would mean that investments that might not now meet the "net benefit" test could proceed without ministerial intervention unless there is an overriding "national interest" concern. However, in such cases, an investor would be faced with the broad, amorphous and undefined threshold of "national interest" that, unless clearly defined, would still result in business uncertainty and would continue to contribute to Canada’s restrictive foreign investment reputation. How such a reverse onus actually improves upon the existing, perhaps equally amorphous, "net benefit" test is not entirely clear.
- Increase Transparency, Predictability and Timeliness. In order for the recommendations to have teeth, the Panel’s procedural proposals relating to transparency (reporting on disallowances with reasons, reporting annually about administrative guidance and type of activities addressed), predictability (including increased use of published guidelines, advisory materials, and binding opinions) and timeliness would also need to be implemented. These are helpful and largely uncontroversial suggestions, many of which can be implemented immediately, without the need for legislative change.
- Cultural Businesses. The Panel recommends that the Minister of Heritage: (a) establish a de minimus cultural business activities exemption based on the lesser of $10 million or 10% of gross revenues when measuring the cultural activities against the entire business. This would be aimed at business acquisitions that include an ancillary (not stand-alone) cultural business aspect not subject to Department of Canadian Heritage review; and (b) establish a five-year review of cultural industry policies, including foreign investment restrictions. The current $5 million ICA review threshold for stand-alone cultural businesses would remain in the interim.
- "National Security" Issues. The introduction of a new national-security-related review of proposed foreign investments has been under active consideration by the Federal Government for some time. Consequently, that issue was not considered to be part of the Panel’s mandate. However, the Panel still chose to include an indirect recommendation that any such security review process should be based on the process now utilized in the United States, which would also be generally in line with similar processes currently utilized in the UK, China, Japan and Germany. This is a helpful suggestion, but careful evaluation of the manner in which these other countries operate their security review processes, the scope of application and the definition of "national security" is clearly required. In this regard the Federal Government will need to tread a fine line between protecting the nation’s security and introducing a highly uncertain and potentially political process that will frighten off legitimate and beneficial foreign investment.
4. Sector-Specific Amendments to Air Transport, Uranium Mining, Telecommunications and Broadcasting Ownership Restrictions
The Panel’s recommendations also target long-standing sector-specific legislation containing foreign ownership restrictions in order to increase Canadian competitiveness and other public policy goals. The Panel’s recommendations in these areas are:
- Air Transport. Increasing the foreign ownership limit from 25% to 49% of voting equity on a reciprocal basis; completing the Open Skies negotiations with the EU as soon as possible; and establishing a policy (within 18 months) on foreign establishment of Canadian incorporated domestic air carriers.
- Uranium Mining. Liberalizing non-resident ownership on uranium mining, subject to new national security legislation; and securing market access benefits for Canadian participation in uranium resource development outside of Canada, or access to processing technology.
- Telecommunications/ Broadcasting. Implementing a two-phased approach to foreign participation in the telecommunications and broadcasting market, reflecting the significant convergence of these sectors. It would begin with allowing foreign companies to establish a new business or acquire a business with up to 10% of the telecommunications market in Canada, followed by a review of broadcasting and cultural policies to liberalize foreign investment restrictions in a "competitively neutral" manner.
- Procedural Changes to All Sectors. Implementing a periodic five-year review of all sector-specific regulatory regimes to assess ownership restrictions against competitive impediments, in light of then relevant public policy considerations.
5. Amendments to the Competition Act
The Panel considers its recommendations for amendments to the Competition Act to be "fine-tuning" and not a "major overhaul" since Canada’s regime is "recognized internationally as both modern and flexible." The finetuning is aimed at ensuring that the Competition Act is focused on anti-competitive conduct and outcomes rather than industry concentration, which the Panel considers inevitable given the reality of Canada’s small open economy. As is the case with the Panel’s recommendations relating to investment, many of its proposed recommendations in the competition area have also been under discussion for some time.
The Panel recommends:
- Adjusting Current Thresholds for Pre-Merger Notification. The Minister of Industry should examine the current financial thresholds which trigger pre-merger notification under the Competition Act with a view to increasing those thresholds. In particular, the "size of the parties" threshold has remained at $400 million since it was initially established over 20 years ago. The net result of any such threshold increases would be to subject fewer transactions to pre-merger notification. The Commission of Competition would retain her ability to challenge any transaction, whether notified or not. In addition, the Minister should also consider whether additional classes of transactions which are unlikely to result in any competitive harm can be excluded from the review process entirely. Unfortunately, the Panel remained silent on the current notification filing fee of $50,000. For example, it might have proposed, as an alternative, that if nonproblematic transactions cannot be excluded from the review process entirely, the applicable fees might be adjusted to better reflect their non-problematic nature.
- Procedural Changes to Merger Review. Amending the pre-merger notification process to better align it with the process currently used in the United States. Proposed changes encompass an initial 30-day review (and clearing) period, and, at the Commissioner’s discretion, a "second stage" review that would end 30 days following full compliance with a "second request" for information. These proposed procedural changes recognize the fact that many transactions are subject to merger review in both Canada and the United States, as well as the need for timeliness in merger review. There are both positive and negative aspects to these proposals. On the negative side, the Competition Bureau currently completes its review of most notified transactions within 14 days. The proposed 30-day initial period may therefore result in additional delays for most transactions. This appears completely unnecessary. On the positive side, the Bureau often takes several months to review very complex transactions. A second mandatory 30-day period following submission of information necessary to meet a "second request" could therefore result in a significant improvement to the current processing periods for the small number of such very complex transactions. A formalized "second request" process might also go some way to address current concerns relating to the Competition Bureau’s information gathering processes.
- Reduction of Post-Merger Review Period. Limiting the challenge period to one year (from the current three years) after the substantial completion of a merger during which the Commissioner may challenge a transaction post-closing. While this change would decrease post-merger uncertainty for businesses, it is also possible that it could result in the Commissioner undertaking more thorough reviews upfront and challenging more potentially problematic transactions because her ability to take a "wait and see" approach will be more limited.
- Amendment of Criminal Provisions. (a) Repealing price discrimination, promotional allowances, predatory pricing provisions; (b) de-criminalizing resale price maintenance and implementing civil penalties; (c) replacing current conspiracy provisions with a per se criminal provision to target hardcore cartels and a civil provision to address other agreements between competitors that have an anti-competitive impact. Many of these proposals are relatively uncontroversial, such as repeal of the price discrimination provisions, and will bring Canadian competition law up-to-date with current economic thinking. Others, such as proposed amendment of the conspiracy section, have been under discussion for many years with no clear consensus as to how issues relating to the current provision can or should be addressed. Concerns generally relate to any such changes being over-inclusive and potentially punishing legitimate procompetitive business conduct. The Panel’s proposals provide no guidance as to how this current log-jam might be broken.
- Changes to Abuse of Dominant Position. (a) Repealing the special air passenger service abuse of dominant position provisions (the so-called "Air Canada" amendments) and penalties; and (b) introducing administrative monetary penalties of up to $5 million for violations of abuse of dominant position provisions. The introduction of financial penalties for abuse of dominant position have been under discussion for some time and is perhaps more contentious than changes to the conspiracy section. The concern here relates to the fact that the abuse offence, in part, judges behavior after the fact, based on effect. Concerns over the potential imposition of significant fines could therefore act to stifle legitimate procompetitive behavior in many instances.
6. Other Public Policy Initiatives
The remaining two-thirds of the Report lists numerous public policy initiatives that should be undertaken in order to improve Canada’s overall competitiveness. Broad areas covered include taxation, international trade, strengthening the workforce through education and immigration, directors’ role in M&A transactions, innovation and IP, securities and general regulatory reforms and Canada-US economic relations. The Panel also singles out barriers to internal trade and notes that greater efforts need to be made to reduce these barriers and improve upon the existing Agreement on Internal Trade.
7. Timing and Next Steps
A task force has been struck within the Ministry of Industry to review the Report and consider options. Even if this task force recommends wide-scale implementation of the Panel’s recommendations, those proposals requiring legislative amendments will compete for scarce parliamentary time, particularly in this minority Parliament. Therefore, we do not expect to see many proposals requiring statutory amendment to see the "light of day" prior to the next Canadian federal election, expected this fall. There simply is not enough time to push such changes through Parliament even if they were to receive wide-spread acceptance. The more controversial suggestions not requiring legislative changes, such as the removal of the opposition to bank mergers, for example, are also not likely to be brought forward in the current minority Parliament. The Government has yet to formally respond to the Report and recommendations, but does appear to be generally satisfied with the Report. Opposition criticism, thus far, has been muted. This perhaps may signal that there is wide-spread acceptance of the Report and that most of the Panel’s recommendations may eventually find their way into changed policy or legislative amendment following the next federal election.