Canadian COMPETITION LAW

On September 2, 2011, the Competition Bureau released its “ex-post assessment” of its 2007 Self-Regulated Professions Study (Self-regulated professions – Balancing competition and regulation (December, 2007)).

According to the Bureau, its new Study “surveys and assesses developments that have taken place relating to recommendations made in [its] 2007 Study” and “provides an overview of the progress made since 2007” to the earlier recommendations made by the Bureau.

In 2007, the Bureau released a Study on the rules and regulations governing five Canadian professions (real estate agents, pharmacists, lawyers, accountants and optometrists), intended to study the impact (or lack of it in some cases) of competition on the self-regulated professions in Canada.

The Bureau’s 2007 Study examined six aspects of self-regulation – in particular, restrictions on entering a profession, mobility, business structure, scope of services/practice, advertising and pricing and compensation – and made 53 recommendations to the various professions in an effort to try and enhance competition in those professions.

In addition to these specific issues, the Bureau’s 2007 Study also set out the following six “guiding principles” for how professional associations and, to the extent relevant, provincial governments, should approach the self-regulation of professionals from a competition law perspective:

1.  Self-regulation should have clearly defined and specific objectives.

2.  Rules and regulations should not restrict competition any more than is necessary to achieve the desired objectives.

3.  Any restrictions should be directly linked to clear and verifiable outcomes.

4.  Rules and regulations must be impartial and not self-serving – i.e, they should not constrain the ability of particular market participants to compete.

5.  Rules and regulations should be subject to periodic review and assessment.

6.  To the extent possible, associations should seek to promote open competition in order to maximize consumer benefits and the efficient utilization of resources.

Some highlights of the Bureau’s new Study include:

– According to the Bureau, its earlier Study has been effective in “increasing awareness within the professions of the importance of avoiding unnecessary restrictions on competition.”

– The Bureau’s earlier 2007 Study has had impacts on other professions in creating awareness of competition issues.

– “Substantial progress” has been made in the mobility of professions between provinces and territories (the Bureau cites as a key development amendments to the Labour Mobility provisions of the Agreement on Internal Trade).  Mobility, i.e., rules limiting the ability of already qualified professionals to move from one jurisdiction to another without requalifying, was, together with restrictions on entering a profession, business structure, scope of services/practice, advertising and pricing, a key aspect of competition reviewed by the Bureau in 2007.

– “Significant pro-competitive developments” in advertising and marketing restrictions in the accounting and legal professions have occurred.  The Bureau cites as examples pro-competitive amendments to the Canadian Institute for Chartered Accountants’ Model Rules for Professional Conduct and marketing rules adopted in the Federation of Law Societies of Canada’s Model Code of Professional Conduct, considering recommendations made by the Bureau in its 2007 Study.  Advertising restrictions were a central topic of discussion in the Bureau’s 2007 Study, with the Bureau identifying “numerous” advertising restrictions in the professions under review at the time that in its view negatively affected competition.  The Bureau was particularly concerned at the time about restrictions on comparative advertising, which in its view “obstructed” competition between incumbent service providers making it difficult for new entrants to distinguish their services.

– The Bureau also describes the recent elimination of restrictions on optometrists (easing of practice restrictions), opticians (new authority to perform eye tests) and pharmacists (new pharmacy technician designations).

For the Bureau’s news release see:

Competition Bureau Releases Ex-Post Assessment of the Self-Regulated Professions Study

For the Bureau’s study see:

Self-Regulated Professions – Post-Study Assessment

For the Bureau’s 2007 Study see:

Self-regulated professions – Balancing competition and regulation

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