Interim Commissioner of Competition John Pecman and Senior Deputy Commissioner of Mergers Kelley McKinnon recently attended a breakfast seminar at Stikeman Elliott, to speak to an overflow crowd of clients and to answer questions related to their visions for the future of the Competition Bureau.
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Both Commissioner Pecman’s and Deputy Commissioner McKinnon’s remarks focused primarily on the importance of enhanced trust and collaboration between the Competition Bureau and its stakeholders, both domestic and international. Mr. Pecman emphasized that the Bureau must move to a “collaborative, horizontal approach” in engaging with the business and legal communities and with Canadian consumers. Ms. McKinnon noted the Bureau’s commitment to maintaining an open dialogue with businesses when it reviews proposed mergers, and giving parties clarity as to the issues it has raised, the concerns it has identified and the additional information it requires.
Interim Commissioner Pecman highlighted the importance of collaboration with domestic and international governments as a key tenet of the Bureau’s enhanced focus on trust and collaboration. He cited, for example, collaboration between the Bureau and various police and enforcement authorities related to enforcement of the conspiracy and bid-rigging provisions of the Act; collaboration on training and enforcement with Public Works and Government Services Canada (the main procurement arm of the Canadian government); joint efforts with Canada’s Anti-Fraud Centre; collaboration with the CRTC and Transport Canada regarding multi-agency merger reviews; and collaboration with international governments and organizations (including, most notably, the U.S. Department of Justice and Federal Trade Commission) on criminal, civil and merger matters.
A second focus of both Mr. Pecman’s and Ms. McKinnon’s remarks was the importance of transparency, certainty and predictability, with respect to how the Bureau reviews mergers, how it develops, communicates and applies its policies and how it enforces the Competition Act in general. To this end, Interim Commissioner Pecman noted that the Bureau was reviewing its Leniency and Immunity programs (part of the Bureau’s criminal enforcement arsenal) and the associated guidance documents, along with other issues related to investigative procedures and e-evidence.
Overall, the remarks from Canada’s top competition law enforcers were welcome news for Canadian businesses. When Competition Bureau approval is necessary for a contemplated merger, or where a desirable business practice raises potential concerns under the Competition Act, the disposition of the Competition Bureau can be a source of significant uncertainty for businesses, particularly in light of the lack of jurisprudence under many of the provisions of the Competition Act. The Bureau’s enhanced focus on trust, collaboration, transparency and predictability will help to reassure businesses that the Bureau is a positive and engaged participant in the Canadian business community, and should help to reduce transaction costs for merging parties and improve the efficiency of the Canadian economy.