On July 6, 2020, the Competition Bureau (the “Bureau”) published its Annual Plan for 2020-21 titled “Protecting competition in uncertain times” (the “Annual Plan”). The Annual Plan provides specific action items for implementing the Bureau’s 2020-24 Strategic Vision (the “Strategic Vision”) published this February.
As discussed in our prior blog post, Competition Bureau Publishes Strategic Vision for 2020-2024, the Strategic Vision includes three broad objectives, namely: (i) protecting Canadians through enforcement, (ii) promoting competition in Canada, and (iii) investing in the organization. The Annual Plan sets out various action items for implementing each objective in the Strategic Vision.
Below we outline the salient features of the Annual Plan and the key take-aways for businesses.
I. Overview of the Annual Plan
A. Protecting Canadians through Enforcement
The Bureau will focus its enforcement efforts on key sectors of the economy, and, in particular, (i) digital services, (ii) online marketing, (iii) financial services and (iv) infrastructure. In response to COVID-19 the Bureau advised that it will be “actively monitoring the market” for COVID-19 related scams and deceptive marketing practices, and taking enforcement action accordingly.
The Bureau plans to enhance its enforcement capabilities at a practical level by:
- establishing a Monopolistic Practices Intelligence Unit to examine and analyze trends in the marketplace to proactively deter anti-competitive behaviour;
- enhancing its intelligence gathering techniques to detect anti-competitive activity earlier (e. advancing their bid-rigging detection tool using public procurement data and leveraging the bid-rigging tip line); and
- introducing new tools and innovative processes to optimize the Bureau’s ability to handle large volumes of data. Examples include:
- increased automation to find efficiencies in reducing manual data entry; and
- finalizing a cloud strategy to test new investigative tools and concepts.
In addition, the Bureau announced that it will be hosting its first virtual Digital Enforcement Summit, which seeks to enhance the Bureau’s effectiveness in the digital economy by exploring new solutions and tools, sharing best practices, and addressing emerging issues with the Bureau’s enforcement partners.
B. Promoting competition in Canada
The Bureau intends to promote competition in Canada through advocacy and international engagement. In particular, the Bureau:
- plans to advocate for pro-competitive policy-making to advance Canada’s economic recovery;
- will assume the presidency of the International Consumer Protection and Enforcement Network for the 2020-2021 term where it plans to focus on online advertising; and
- plans to advocate for competition in the health and telecommunications sectors. For instance, it will continue to participate in the Canadian Radio-television and Telecommunications Commission’s review of mobile wireless services and wireline access prices.
C. Investing in the organization
The Bureau plans to enhance its digital expertise internally by:
- training its workforce to develop and improve its proficiency in using existing and emerging technologies, such as artificial intelligence and new investigative applications; and
- recruiting more data scientists and data engineers.
II. Implications for Businesses
Key take-aways arising from the Bureau’s Annual Plan include the following:
- Doubling-Down on Digital Enforcement Tools: The Bureau is investing significantly in tools to pursue its enforcement priorities in the areas of digital services, online marketing, financial services and infrastructure. By establishing a Monopolistic Practices Intelligence Unit, introducing new tools for analyzing data (including finalizing a cloud-based investigative strategy and recruiting data scientists and engineers as Bureau officers) and introducing its first ever virtual Digital Enforcement Summit, the Bureau is not only signaling clear enforcement priorities but also doubling down on tools for such enforcement.
- More Online Advertising Enforcement: With the Bureau assuming the presidency of the International Consumer Protection and Enforcement Network, we can expect the Bureau to lead by example in emerging online advertising matters, including “drip” pricing, native advertising/online reviews and privacy-related representations.
- Performance Claims and Bid-Rigging: COVID-19 related enforcement is expected to continue not only in the areas of unsubstantiated performance claims but also in criminal enforcement. We can expect Commissioner Boswell, a former criminal prosecutor, to aggressively enforce alleged bid-rigging and price-fixing that may arise from a recessionary COVID-19 period.
- Health and Telecommunications Advocacy: The Bureau is focusing its advocacy work on the health and telecommunications sectors. Market participants in those sectors should look out for the Bureau’s advocacy interventions and be prepared to respond.
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 of Fasken’s Antitrust/Competition & Marketing group.