Canada: Six Months Later: The Priorities Of The New Interim Commissioner Of Competition

Since taking over from Melanie Aitken as Interim Commissioner of Competition six months ago, John Pecman has used the many forums afforded to him to clarify what the priorities of the Competition Bureau will be during his tenure. Here is a brief overview.

Key values and priorities

According to Mr. Pecman, there is no reason to change the key values that guided the Bureau's mandate under Ms. Aitken. Transparency, certainty and predictability will therefore continue to drive the Bureau's actions. Mr. Pecman will also continue to favour active enforcement of the Competition Act, which was the main priority of his predecessor.

Mr. Pecman has identified three priorities for the Bureau:

1. Benefiting Canadians through focused enforcement and through strategic regulatory interventions;

2. Applying Canada's competition laws in a transparent and predictable manner; and

3. Building trust through enhanced collaboration with all stakeholders.

Concrete actions

Mr. Pecman has also given several concrete examples of how the Bureau intends to achieve such priorities:

  • By clarifying the Bureau's investigative procedures. For example, when he spoke at Norton Rose, Mr. Pecman announced that, going forward, in order to obtain information from targets of formal inquiries into non-merger civil matters, the Bureau will systematically attempt to use legally binding orders under Section 11 of the Act;
  • By using focused consent agreements to resolve concerns arising in mergers, such as the Bell-Astral, WM Quebec, and Air Canada-United Continental cases. When properly designed, consent agreements are an effective way to preserve competition in a particular market;
  • By increasing surveillance to prevent anti-competitive practices when a consent agreement has expired, as reiterated in Direct Energy Marketing Limited;
  • By publishing position statements that describe the Bureau's analysis of complex merger cases;
  • By developing clear guidelines on the price maintenance provisions;
  • By updating the Bureau's immunity and leniency programs;
  • By enhancing collaboration with other agencies, such as the Quebec Permanent Anti-Corruption Unit; and
  • By increasing the number of strategic regulatory interventions by the Bureau. For example, the Bureau recently made representations to the CRTC regarding the creation of a mandatory code of conduct for mobile wireless service providers.

The importance of effective compliance programs

The Bureau reiterated its firm intention to actively enforce the Act. Mr. Pecman also welcomed the comments made by the Federal Court in the Maxzone decision. In that decision, described as "fundamentally important" by Mr. Pecman, Chief Justice Crampton said that hard core cartel agreements ought to be treated as severely as fraud and theft, if not more.

In that context, adopting appropriate compliance policies is more important than ever for businesses, and especially for trade associations, which Mr. Pecman noted face "unique compliance issues." Mr. Pecman is indeed encouraging businesses to implement effective compliance programs. In this regard, Norton Rose Canada has developed a flexible compliance program that can be easily tailored to any business's needs.

The authors wish to thank law student Raphaëlle Lévesque for her help in preparing this Legal update.

Norton Rose Group

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Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit nortonrose.com.

Norton Rose will join forces with Fulbright & Jaworski L.L.P on June 1, 2013, creating Norton Rose Fulbright a global legal practice with significant depth of expertise across the USA, Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

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