At the Spring CBA Competition Conference earlier today in Toronto, the Commissioner of Competition, Melanie Aitken, delivered an interesting keynote luncheon speech that provided insight into the Competition Bureau’s recent experience under Canada’s amended Competition Act, current enforcement and future priorities.
Mergers
With respect to mergers, the Commissioner addressed recent efforts (including the 2009 Competition Act amendments) to align Canada’s merger control regime with those of other major jurisdictions, notably the U.S.
The Commissioner also addressed the Bureau’s increased monitoring of non-notifiable mergers, cited some recent merger review related statistics (including the fact that the Bureau has reduced the average time to review complex transactions from about 50 days pre-2009 to about 36 days currently and that the Bureau has triggered second phase reviews (“supplementary information requests” or “SIRs”) in 18 cases over the past three years).
The Commissioner also indicated that the ongoing BC waste case (an ongoing non-notifiable contested merger case) was uncommon, but at the same time made it clear that the Bureau would: (i) not hesitate to litigate appropriate merger cases and (ii) was interested in clarifying the law under the merger provisions of the Competition Act.
Perhaps the Commissioner’s most interesting merger related remarks were those relating to the possibility of collapsing the current standalone efficiencies defense into the general merger provisions of the Competition Act. In this regard, the Commissioner appeared to indicate that Canada’s standalone efficiencies defense was out of step with other major jurisdictions.
Criminal
With respect to criminal matters, the Commissioner generally described an increase in cases, while also citing the increased speed with which the Bureau has completed the investigation of cases (stating that the average duration of cases from inquiry to conclusion has been reduced from about 600+ days pre-2009 amendments to about 185 days currently).
The Commissioner also spoke about the recent $12.5 million fine achieved in the foam case, which according to the Commissioner was the highest fine achieved by the Bureau in a domestic cartel case (and the first conviction in Canada under the amended conspiracy provisions of the Competition Act).
Somewhat troublingly, the Commissioner (as well as other Bureau officials) indicated an increased appetite to carve out immunity applicants in criminal cases and at least the prospect that the Bureau would consider revoking markers to immunity applicants where there was unwarranted delay in providing information to the Bureau. Given the apparent success of the Bureau’s Immunity and Leniency Programs, however, it remains to be seen whether the Bureau will actually take steps to revoke markers (and, if so, the circumstances in which it does so).
Abuse of Dominance
With respect to abuse of dominance, the standout comments for me related to the Commissioner’s remarks that the recently revised (draft) Abuse of Dominance Guidelines, which are markedly shorter and provide less significantly guidance than prior versions, was an intentional effort to not “second guess” the Competition Tribunal (which has exclusive jurisdiction in Canada to decide abuse of dominance matters, as well as a number of other civil reviewable practices) and an effort to encourage new jurisprudence to develop.
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