On February 11th, the Competition Bureau published its Strategic Vision for 2020-24. Titled “Competition in the Digital Age”, this document outlines how the Bureau plans to deliver the benefits of competition to Canadians over the next four years in today’s rapidly changing digital economy.
The Strategic Vision includes three key themes or pillars, namely (1) protecting Canadians through enforcement, (2) promoting competition in Canada, and (3) investing in the organization. Numerous action items and desired outcomes are set out for each of these themes.
Some Initial Observations
Our initial observations on the Strategic Vision are set out below:
- The Strategic Vision is generally consistent with both the Bureau’s 2019-20 Annual Plan and prior speeches by the Commissioner of Competition, such as his speech titled “No River too Wide, No Mountain too High: Enforcing and Promoting Competition in the Digital Age” (which was discussed in our prior blog post titled “Commissioner Points to More Active Enforcement, Greater Transparency and Refined Approach to Efficiencies Defence”).
- It’s interesting to compare the 2020-24 Strategic Vision with the 2015-18 Strategic Vision published by the Commissioner’s predecessor, John Pecman. In this regard, the 2020-24 Strategic Vision gives considerably greater emphasis to enforcement and enforcement capabilities, and comparatively less emphasis to compliance through education and advocacy.
- The 2020-24 Strategic Vision contains the very clear statement that over the next four years “enforcement will be our main focus”. Substance is added to this priority through the following:
- the reference to timely and evidence-based enforcement action that focuses “on sectors of the economy that matter most to Canadians”, including “online marketing, telecommunications, financial services, health and infrastructure”;
- the Commissioner’s intention to invest in enforcement capability, both technological (including new intelligence-gathering tools such as advanced analytical models, algorithms, automated processes and artificial intelligence capabilities) and personnel;
- plans to establish a Digital Enforcement Office that will provide specialized technological assistance to support the Bureau’s work in the digital economy; and
- plans to host an annual Digital Enforcement Summit Series (which extends a 2019 initiative).
- The 2020-24 Strategic Vision contains several references to the challenges posed by the digital economy. This, combined with the plans to enhance enforcement capabilities described above, is consistent with the priorities specified in the letter that the Minister of Innovation, Science and Economic Development sent to the Commissioner of Competition on May 21, 2019.
- Increased focus on enforcement may suggest comparatively less focus on both compliance work (including competition advocacy) and international engagement (which the Strategic Vison indicates will be “focussed”).
Implications for Business
Given the very clear statements that active enforcement will be a priority for the Bureau over the next four years, particularly in sectors such as online marketing, telecommunications, financial services, health and infrastructure, businesses should be aware of and ensure that their practices comply with the Competition Act. Failure to do so could result in lengthy Bureau investigations and costly proceedings before the Competition Tribunal or the courts, which, in turn, could lead to jail time, fines, reduced sales, damaged reputation and class actions.
To the extent not already done, businesses should consider putting in place new corporate compliance programs or updating their existing programs. These programs, which can be tailored to meet a business’ specific needs, offer numerous benefits, such as reducing the risk of non-compliance with the Competition Act; triggering early warnings of potentially illegal conduct; reducing the exposure of employees, management and the business to criminal or civil liability; and assisting businesses to qualify, in certain circumstances, for a reduced sentence or other lenient treatment where a contravention of the Competition Act has occurred.
The information and guidance provided in this blog post does not constitute legal advice and should not be relied on as such. If legal advice is required, please contact a member Fasken’s Antitrust/Competition Marketing group.