Thank you very much, Mr. Chair.

Thank you very much to the committee for the invitation to appear today on behalf of the Macdonald-Laurier Institute.

We are a public policy think tank located right here in the nation's capital, and we're here to offer some comments on Bill C-59. I understand one of my colleagues, Philip Cross, has preceded me, but, fortuitously, I don't think we're going to be covering the same territory in the bill.

I'd like to focus my remarks to relate to the competition provisions in Bill C-59.

First of all, I should applaud the government for being seized with the problem of competition. It is obviously a very serious, pressing, bread-and-butter issue for Canadians in this country. I fear, however, that the provisions of this bill, much like Bill C-56 before it, have the wrong focus and risk imposing some well-meaning solutions that will only end up creating other unintended consequences.

In particular, I refer to the changes in the bill that refer to the review of proposed mergers and the right of private action before the Competition Tribunal.

With respect to the merger review, in Canadian competition law, the purpose of the law is to maintain and promote competitive markets.

Why do we care about that? We care about it because we want consumers to benefit. The important thing is that Canadians are benefiting from more choice, more innovation and, most importantly these days, lower prices. That is the purpose of competition law.

The existing merger review process is designed to prevent anti-competitive behaviour, so the focus of the existing law is on bad behaviour. When companies break the law, they should be investigated and punished.

If passed, Bill C-59 would instead repeal sections of the Competition Act that prohibit the tribunal from concluding that a prospective merger is anti-competitive based solely on the size of the parties proposing the merger. This sounds appealing, because in a lot of cases, the size of the market share has an impact on whether or not they have the ability to act in anti-competitive ways. The problem is in treating this as definitive, since it is not the only factor in whether or not a company is acting anti-competitively. Taking this prohibition out and allowing the tribunal to make a finding solely based on market share would have the effect of empowering courts to develop a framework that includes what are known as structural presumptions. In other words, if you are of a certain size, automatically we will not allow a merger. It puts an onus on companies, then, to prove that a merger would not have anti-competitive effects.

In effect, this would shift the focus from behaviour to size. Rather than punishing you if we see you as a company doing something wrong, we're going to presume that you are guilty simply because you are large. I would suggest that this is a problem, for a couple of reasons.

First of all, if you're going to propose this guilty-until-proven-innocent onus, you're going to have to allow a mechanism for companies to prove that they are innocent. This is very difficult to do, because unlike the Competition Bureau, private companies do not have the power to compel information and they cannot compel witnesses. It's a very difficult hill for them to climb. I would suggest that the provisions in Bill C-59 create a structurally unfair asymmetry with respect to mergers.

The news is no better regarding right of private action. This is similar to the concept of a class action lawsuit, which allows private parties who suffer to hold businesses accountable. Again, there is a positive element to this. It allows individual citizens or a group of citizens who are negatively affected to utilize competition law to punish bad actors. That's good. The problem is that they don't have the same guardrails as they do around private class action lawsuits. Right now, if you want to launch a class action lawsuit against a company for bad behaviour, there are certain thresholds you have to meet. Those thresholds are not in place for these measures in Bill C-59. This could open it up to an abuse of process.

I should say, as a former litigation lawyer, that if I were still practising, I would be very happy about these changes because it would be payday for me. There would be a lot of lawsuits and a lot of work. From a consumer's standpoint, though, I suggest that it may end up diverting resources at the tribunal that could be better placed elsewhere. I would suggest that if you're going to keep the provisions around private right of action, there have to be guardrails that are similar to the ones for private class action lawsuits.

That's the thrust of my remarks. I'll leave it there, and I'm happy to take questions.

Transcript

Discussions (0)