Canadian Commissioner of Competition Matthew Boswell provided the keynote address at the Canadian Bar Association’s Competition Law Spring Conference in Toronto on May 7, 2019. Commissioner Boswell was appointed for a five-year term on March 5, 2019, and his comments are an important early indication of the future direction for competition law enforcement in Canada.
WHAT BUSINESSES NEED TO KNOW
The key takeaways arising from the Commissioner’s comments are:
- Greater use of injunctions – The Commissioner emphasized that the Competition Bureau (Bureau) will increasingly consider the use of injunctions to stop a merger or modify conduct pending litigation.
- Greater transparency in merger reviews – Bureau officials will be empowered to provide views to parties earlier in the process.
- Expanded role for intelligence gathering – Both the mergers and cartels directorate will take a greater focus on detecting transactions and conduct that raise issues under the Competition Act.
- Continued scrutiny of efficiencies claims – In Canada, efficiencies can be a full defence against an anticompetitive merger. The Commissioner will continue to require merging parties that assert this defence to provide detailed evidence of the claimed efficiencies and ask the parties to refrain from closing until the Bureau has had time to review that evidence.
RECENT COMPETITION BUREAU ACTIVITIES
The Bureau’s speech is the latest in a flurry of recent Bureau activities:
- Obtaining sworn testimony from executives in a merger review – The Bureau obtained court orders for oral examination of executives in a merger review. The orders mark a change of approach for the Bureau, which, unlike its U.S. counterparts, does not typically conduct oral examinations.
- Advocacy efforts related to waste management services – The Bureau expressed concerns that bylaws adopted by Metro Vancouver may have a negative effect on the level of competition and innovation for waste management services in the Metro Vancouver area and provided the British Columbia Minister of Environment and Climate Change with a letter to that effect.
- Greater international cooperation – The Bureau registered as a founding member of the International Competition Network’s Framework on Competition Agency Procedures with a view to fostering fair, consistent and effective procedures in competition law enforcement globally. International cooperation will continue to be a hallmark of the new Commissioner’s mandate.
Other recent activities include a variety of publications during the Bureau’s annual Fraud Prevention Month, and the release of updated guidelines in respect of the Bureau’s enforcement of abuse of dominance and competition matters related to intellectual property.