Canada's Competition Bureau released its report, Self-regulated professions - Balancing competition and regulation (the Report) on December 11, 2007 (see www.competition.gc.ca). According to a recent study by the Conference Board of Canada, labour productivity of the professions in Canada is about half that of the professions in the United States. Citing an OECD report that identified decreasing regulation of the professions as one of five key ways to improve the future prosperity of Canada, the Bureau report has specific proposals for improvement.
The Bureau study focused on identifying and evaluating the justification for rules that limit competition in five self-regulating professions: accountants, lawyers, optometrists, pharmacists and real estate agents. Generally speaking, the Bureau found a lot of unnecessarily restrictive regulation and challenged the professions to reassess their rules with a view to maximizing competition, while still safeguarding the public interest in maintaining high professional standards. Examples of particular concern include:
- bans on comparative and price advertising (lawyers);
- standardized pricing (Ontario real estate agents);
- restrictions on service offerings (e.g., some accountants cannot perform independent audits); and
- lack of standardized accreditation across provinces and with respect to foreign accreditation, which decreases job mobility.
Significantly, the Bureau has said that it will reassess the situation in two years' time, to see what changes have been made. Its consensual approach in this instance is consistent with the judge-made "regulated conduct" doctrine, in which the courts have taken the view that actions which are required or authorized by valid provincial legislation (such as, in some cases, the legislation authorizing self-regulation of lawyers) cannot contravene the criminal prohibition against anti-competitive agreements contained in section 45 of the Act (see "Technical Bulletin on Regulated Conduct" (June, 2006: on-line www.competitionbureau.gc.ca). Not to be thwarted, the Commissioner is nonetheless using her office to advocate in favour of a "competition culture" and the Report could well have important repercussions throughout the Canadian service sector.