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(Anthony Jenkins/The Globe and Mail)
(Anthony Jenkins/The Globe and Mail)

The Lunch

Melanie Aitken: Leading the charge for the consumer Add to ...

There are a few moments of quiet panic as I consider how to pay for lunch. After two hours with Melanie Aitken, Canada's Competition Commissioner, I'm particularly aware of the burden that using a premium credit card will place on the owner of this small restaurant in the Byward Market.

The card comes with higher processing charges for the businesses that run it through their machines. But if I lay it down, the restaurant has no choice but to accept it. Those are the rules set by Visa and MasterCard - rules that Ms. Aitken is taking aim at in her latest crusade as the country's competition watchdog.

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I get where she's coming from and feel a pang of guilt - but my points card is the only plastic in my wallet.

As I subtly slip the card into the hands of a passing waiter, it occurs to me that I'm probably not the first person to worry about how he is perceived by Ms. Aitken. In the last year, she has taken advantage of the new U.S.-style powers granted to her office to pursue some of the country's biggest companies and trade organizations.

Some would say Ms. Aitken takes a rather American approach to the job. While former commissioners have kept a low profile, Ms. Aitken is fighting many of her battles in the public eye, the way many U.S. prosecutors and regulators do. She issues scathing letters that are as much about educating consumers as they are about warning companies to change their behaviour.

Just as industry watchers were ready to write the bureau off as ineffective, Ms. Aitken has forced it into the limelight and to the forefront of Canadian business. She took on the Canadian Real Estate Association over the way it charges consumers who want their houses listed on its Multiple Listing Service and lambasted Rogers Communications Inc. over ads that claimed its network had fewer dropped calls than others.

More recently, she has been locked in an increasingly heated fight with Visa and MasterCard over the way they force merchants to accept points cards that carry fees that can be as high as 3 per cent of a total purchase. Many non-premium cards charge only 1 per cent.

"I must say I get a real charge out of when we do something with a real public impact," she says. "People quite often don't get the details of what I'm doing, but they do get that I'm fighting for them."

Ms. Aitken, 44, came to the bureau after being seconded to the Justice Department from law firm Davies Ward Phillips & Vineberg LLP to work on competition files. It didn't take long for her to begin her ascent - within two years she was heading the bureau's merger division, which would be thrust into the spotlight after a federal judge slammed the agency for overstepping its bounds when investigating the Labatt Brewing Co. Ltd. takeover of Lakeport Brewing in 2008.

An independent review exonerated Ms. Aitken's department, but big changes were imminent. Parliament handed the bureau sweeping new powers in 2009. Ms. Aitken was now Commissioner, and given an opportunity to transform the bureau from a toothless regulator into a market force capable of challenging takeovers or business practices that threatened competition.

In Ms. Aitken - a litigator who misses the days when she took on large corporations in a courtroom - the bureau found a leader who is willing to become a prominent and outspoken player in Canada's business community.

"A very significant part of what changed at the bureau when I came in is we got better tools," she says. "We were given an effective, coherent framework that we didn't have before. That signal from Canadians was pretty clear and I feel a real responsibility to discharge on that."

The laws may have changed - she can now suspend proposed takeovers by up to a year to investigate them further and levy penalties as large as $25-million for anticompetitive behaviour, such as price fixing - but there's little doubt that Ms. Aitken's personality is just as responsible for the agency's increased visibility as any bit of legislation.

She has an unforgiving - although self-imposed - work schedule that starts after an early morning run along the Rideau Canal and doesn't end until well after the sun has gone down. While she works in Gatineau, just across the river from Ottawa, she flies to Toronto every weekend to be with her six-year-old son, Jake.

It's a punishing pace and her personal expectations are set high. She is bilingual after taking French training at 40, but prefers not to speak it because she's just better at English. She doesn't see the point of running a marathon because "Really, at the end of the day what have you actually accomplished?"

She acknowledges her demands and expectations can take a toll on the 400-plus employees who answer to her. Like any government agency, not every bureaucrat is there because of a deep personal commitment to the department's mandate.

"What can I say? I expect a lot," she says, picking at a salad she ordered as a safe meal after a bout of food poisoning brought on by dried apricots (she uses the same excuse when I suggest ordering the four-martinis-for-$40 deal).

"I appreciate that different people come to their day with different expectations of what it will hold. But I think Canadians deserve to have their public servants working very effectively and strongly - I expect that."

Instead of diving into the meal, she tries to explain why she gets so animated when talking about credit card fees. Visa and MasterCard say that forcing merchants to accept all manner of points cards ensures that consumers can use their plastic wherever they want. She sees it differently, suggesting they want to preserve the $5-billion they collect from merchants each year in extra fees.

Consumers may love racking up the free points that eventually lead to flights and gift certificates, but she says small business owners and their customers are the unwitting financiers of the bonus schemes.

"Even if you pay cash, you're funding my points because the price of the good will have gone up because the merchant needs to recover their costs," she says. "To me, that's not transparent; those are hidden fees."

That said, as someone who flies tens of thousands of kilometers a year, she understands the allure of freebies. When asked if she has a points card in her wallet, she blushes and laughs. Her carefully worded answer is very lawyerly indeed.

"I actually do," she says. "But like a lot of consumers, I had no idea before we did this investigation about the higher costs associated with them … if I'm at a small entrepreneurial store, I'd never use my points card. I just don't believe that system should be working under anticompetitive restraints. So I'm not going to feed the problem."

And with that, the prosecution rests its case.



Curriculum Vitae



Background and Family Life



44 years old



Born and raised in Toronto



One son, Jake, age 6



Education and Academic Experience



B.A. Hons. English, University of Toronto 1988



LLB, University of Toronto 1991



The Harold G. Fox Foundation Scholarship, Middle Temple, U.K., 1993-1994



Adjunct law professor, Osgoode Hall and Queen's Law Schools



Professional Experience



Litigation partner, Davies Ward Phillips & Vineberg LLP, Toronto



Competition and litigation partner, Bennett Jones LLP, Toronto



Elected bencher of Law Society of Upper Canada (2007-2009)



Government Service



Joined the Competition Bureau in 2005



Named senior deputy commissioner of mergers in 2007



Appointed commissioner in 2009 for five-year term



Professional Awards



Arbor Award, University of Toronto, 1999



Top 40 Under 40 in Canada, Lexpert, 2004



The World's Leading Lawyers, Chambers Global, 2004



Top 100 Women in Competition, Global Competition Review, 2009

 

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