On September 20, 2021, Canadians will head to the polls to elect a new House of Commons. All of Canada’s major political parties have released political platforms which outline their plans to revise and, at least in their view, improve Canadian competition law and policy. Depending on which party is ultimately elected (and whether they win a majority), competition law in Canada may see some significant changes, including more serious penalties for existing offences and reviewable practices, as well as a few new ones.
The Liberal Party platform does not spend a lot of words on competition law. However, the Liberals do make a few suggestions that could be consequential, namely:
- The Liberal Party will create new regulations for large digital companies for the purpose of better protecting Canadians personal data and to encourage competition in the digital marketplace. Precisely what those regulations would entail is unclear.
- A new Data Commissioner will be created, who will be responsible for overseeing the new regulations for large digital companies.
- As part of its plan to make travel more affordable for people living in Canada’s North, the Liberal Party will direct the Competition Bureau to oversee the pricing of transportation in the North. (The Competition Bureau does not regulate prices and has historically opposed efforts to regulate prices in the Canadian economy; see its joint report with the National Energy Board in response to calls to regulate propane pricing in the winter of 2013-2014).
The Conservative Party platform puts forward a number of significant proposals regarding competition law. It expresses concern regarding “market dominant firms” (i.e. big tech companies) allegedly blocking Canadians from starting and building businesses by using unfair methods competition. The Conservative Party platform would make the following consequential changes to Canada’s competition landscape:
- Increase penalties for price-fixing and abuse of dominance. The Conservative Party wants to see executives of companies that engage in price-fixing (currently a criminal offence for which executives could be sentenced to jail time) and abuse of dominance (not currently a criminal offence) be subject to incarceration on conviction. Turning the existing civil reviewable practice of abuse of dominance into a criminal offence would significantly strengthen Canadian competition law.
- Block mergers that substantially reduce competition, lead to layoffs or result in higher prices. Canada’s Competition Act already contains provisions allowing the Competition Tribunal to block mergers that are likely to result in a substantial lessening or prevention of competition. Under Canadian law, a merger may substantially lessen or prevent competition when it enables the merged firm, unilaterally or in coordination with other firms, to sustain materially higher prices than would exist in the absence of the merger by diminishing existing or future competition. However, blocking mergers that lead to layoffs would incorporate objectives outside of the traditional antitrust framework and risks making competition law less predictable.
- Create a technology task force within the Competition Bureau to examine whether dominance and anti-competitive behaviour by big tech companies is damaging Canada’s economy. In particular, the task force will examine (i) how algorithms and data give big tech companies an advantage over Canadian businesses, and (ii) how fintech and other new technologies could foster improved competition.
- order the Competition Bureau to investigate bank fees.
New Democratic Party (“NDP”)
The NDP has released a 115 page blueprint for a political platform which makes limited suggestions for changing Canadian competition law and enforcement:
- The NDP will boost the power of the Competition Bureau to proactively investigate allegations of anti-competitive activity in the gasoline market. The Competition Bureau already investigates complaints of anticompetitive activity in the gasoline space – the details of how the Bureau’s powers would be enhanced is unclear.
- The NDP will create a “Fair Gasoline Prices Watchdog” to investigate complaints of price gouging in connection with gasoline prices.
Notwithstanding the above plans to revise Canadian competition law, competition policy has rarely been at (or even near) the top of the federal government’s agenda, and there is no reason to expect this to change following the federal election. It is also interesting that the parties’ political platforms do not include many of the amendments that would likely be pushed by the Competition Bureau, including, most importantly, the repeal of the efficiencies defence.