Commissioner of Competition Matthew Boswell takes part in Canada's Competition Summit hosted by the Competition Bureau Canada in Ottawa on Oct. 5.Sean Kilpatrick/The Canadian Press
Joshua Krane is a competition lawyer.
The federal government just renewed the Competition Commissioner’s term for another two years.
With the coming wholesale rewrite of Canada’s competition laws, which has already begun, and the additional funding given to the Competition Bureau last year, enforcement of our competition laws should be strengthened.
Although the government has chosen an experienced hand to helm the bureau, Matthew Boswell will have his work cut out for him Matthew Boswell reappointed as head of Competition Bureau. He’ll have the task of tackling the challenges of continued high inflation and declining competitive intensity that the Competition Bureau observed in a recent study.
There are three things the Commissioner needs to do and one he shouldn’t do as he begins his next term.
Firstly, he needs to pick his battles. Although Mr. Boswell has challenged more mergers over the last few years than his predecessors, the results have been mixed and enforcement in the other areas such as abuse of dominance has been limited. Bringing cases to settle the law isn’t going to be enough to address the issues in the bureau’s report. Ultimately, the best deterrent for anti-competitive mergers and conduct is getting quick relief and, ultimately, winning cases.
The new amendments allow the Commissioner to go to court more readily to seek injunctions, which have rarely been sought in the past, to preserve the ability of the courts and Competition Tribunal to protect competition. These injunctions can help maintain competition while a case is being decided and these will be important powers for the Commissioner to use.
Winning cases also provides both specific deterrence against the companies involved and sends a general message about the importance of compliance with Canada’s competition laws.
Outcomes matter. Securing a remedy in clear cases of noncompliance will reinforce the Commissioner’s message to the business community about building a culture of competition-law compliance across Canada.
Secondly, the Commissioner needs to take a whole-of-government approach to competition-law enforcement. Because of how long the litigation process can take, especially as the Competition Tribunal is expected to become very busy when the law changes to allow private claims for damages for anti-competitive conduct, the Commissioner will also need to negotiate deals to secure commitments or work with other regulators to do so.
In other words, the Commissioner cannot and should not go it alone. The Commissioner must invest precious resources where he can do the most good and collaborate where he cannot.
This may mean that the Commissioner will need to defer to other regulators or government ministers to negotiate remedies rather than litigating high-profile cases. By finding allies within government, the Commissioner can pay more attention to anti-competitive mergers and conduct in less high-profile industries that affect the growth prospects for small and medium-sized businesses – even if the cases don’t always make news headlines.
Thirdly, the Commissioner should build the bureau’s capacity for enforcement. It’s clear that the days of government employees returning to the office full time are over.
Like the RCMP, the bureau should have a presence in all of Canada’s major commercial centres to build a truly pan-Canadian organization that is plugged into the competitive challenges faced by small and medium-sized businesses across our country.
In terms of steps not to take, the Commissioner should prioritize law enforcement and not be tempted to spend precious resources on endless market studies.
History has shown both in this country and others that market studies are too long, cumbersome and costly both for industry and for government.
The new powers given to Mr. Boswell will allow him and his team to act quickly – otherwise, competition delayed is competition denied.