Bill C-59

Fall Economic Statement Implementation Act, 2023

An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023

Part 1 implements certain measures in respect of the Income Tax Act and the Income Tax Regulations by
(a) limiting the deductibility of net interest and financing expenses by certain corporations and trusts, consistent with certain Organisation for Economic Co-operation and Development and the Group of Twenty Base Erosion and Profit Shifting project recommendations;
(b) implementing hybrid mismatch rules consistent with the Organisation for Economic Co-operation and Development and the Group of Twenty Base Erosion and Profit Shifting project recommendations regarding cross-border tax avoidance structures that exploit differences in the income tax laws of two or more countries to produce “deduction/non-inclusion mismatches”;
(c) allowing expenditures incurred in the exploration and development of all lithium to qualify as Canadian exploration expenses and Canadian development expenses;
(d) ensuring that only genuine intergenerational business transfers are excluded from the anti-surplus stripping rule in section 84.1 of the Income Tax Act ;
(e) denying the dividend received deduction for dividends received by Canadian financial institutions on certain shares that are held as mark-to-market property;
(f) increasing the rate of the rural supplement for Climate Action Incentive payments (CAIP) from 10% to 20% for the 2023 and subsequent taxation years as well as referencing the 2016 census data for the purposes of the CAIP rural supplement eligibility for the 2023 and 2024 taxation years;
(g) providing a refundable investment tax credit to qualifying businesses for eligible carbon capture, utilization and storage equipment;
(h) providing a refundable investment tax credit to qualifying businesses for eligible clean technology equipment;
(i) introducing, under certain circumstances, labour requirements in relation to the new refundable investment tax credits for eligible carbon capture, utilization and storage equipment as well as eligible clean technology equipment;
(j) removing the requirement that credit unions derive no more than 10% of their revenue from sources other than certain specified sources;
(k) permitting a qualifying family member to acquire rights as successor of a holder of a Registered Disability Savings Plan following the death of that plan’s last remaining holder who was also a qualifying family member;
(l) implementing consequential changes of a technical nature to facilitate the operation of the existing rules for First Home Savings Accounts;
(m) introducing a tax of 2% on the net value of equity repurchases by certain Canadian corporations, trusts and partnerships whose equity is listed on a designated stock exchange;
(n) exempting certain fees from the refundable tax applicable to contributions under retirement compensation arrangements;
(o) introducing a technical amendment to the provision that authorizes the sharing of taxpayer information for the purposes of the Canadian Dental Care Plan;
(p) implementing a number of amendments to the general anti-avoidance rule (GAAR) as well as introducing a new penalty applicable to transactions subject to the GAAR and extending the normal reassessment period for the GAAR by three years in certain circumstances;
(q) facilitating the creation of employee ownership trusts;
(r) introducing specific anti-avoidance rules in relation to corporations referred to as substantive CCPCs; and
(s) extending the phase-out by three years, and expanding the eligible activities, in relation to the reduced tax rates for certain zero-emission technology manufacturers.
It also makes related and consequential amendments to the Excise Tax Act and the Excise Act, 2001 .
Part 2 enacts the Digital Services Tax Act and its regulations. That Act provides for the implementation of an annual tax of 3% on certain types of digital services revenue earned by businesses that meet certain revenue thresholds. It sets out rules for the purposes of establishing liability for the tax and also sets out applicable reporting and filing requirements. To promote compliance with its provisions, that Act includes modern administration and enforcement provisions generally aligned with those found in other taxation statutes. Finally, this Part also makes related and consequential amendments to other texts to ensure proper implementation of the tax and cohesive and efficient administration by the Canada Revenue Agency.
Part 3 implements certain Goods and Services Tax/Harmonized Sales Tax (GST/HST) measures by
(a) ensuring that an interest in a corporation that does not have its capital divided into shares is treated as a financial instrument for GST/HST purposes;
(b) ensuring that interest and dividend income from a closely related partnership is not included in the determination of whether a person is a de minimis financial institution for GST/HST purposes;
(c) ensuring that an election related to supplies made within a closely related group of persons that includes a financial institution may not be revoked on a retroactive basis without the permission of the Minister of National Revenue;
(d) making technical amendments to an election that allows electing members of a closely related group to treat certain supplies made between them as having been made for nil consideration;
(e) ensuring that certain supplies between the members of a closely related group are not inadvertently taxed under the imported taxable supply rules that apply to financial institutions;
(f) raising the income threshold for the requirement to file an information return by certain financial institutions;
(g) allowing up to seven years to assess the net tax adjustments owing by certain financial institutions in respect of the imported taxable supply rules;
(h) expanding the GST/HST exemption for services rendered to individuals by certain health care practitioners to include professional services rendered by psychotherapists and counselling therapists;
(i) providing relief in relation to the GST/HST treatment of payment card clearing services;
(j) allowing the joint venture election to be made in respect of the operation of a pipeline, rail terminal or truck terminal that is used for the transportation of oil, natural gas or related products;
(k) raising the input tax credit (ITC) documentation thresholds from $30 to $100 and from $150 to $500 and allowing billing agents to be treated as intermediaries for the purposes of the ITC information rules; and
(l) extending the 100% GST rebate in respect of new purpose-built rental housing to certain cooperative housing corporations.
It also implements an excise tax measure by creating a joint election mechanism to specify who is eligible to claim a rebate of excise tax for goods purchased by provinces for their own use.
Part 4 implements certain excise measures by
(a) allowing vaping product licensees to import packaged vaping products for stamping by the licensee and entry into the Canadian duty-paid market as of January 1, 2024;
(b) permitting all cannabis licensees to elect to remit excise duties on a quarterly rather than a monthly basis, starting from the quarter that began on April 1, 2023;
(c) amending the marking requirements for vaping products to ensure that the volume of the vaping substance is marked on the package;
(d) requiring that a person importing vaping products must be at least 18 years old; and
(e) introducing administrative penalties for certain infractions related to the vaping taxation framework.
Part 5 enacts and amends several Acts in order to implement various measures.
Subdivision A of Division 1 of Part 5 amends Subdivision A of Division 16 of Part 6 of the Budget Implementation Act, 2018, No. 1 to clarify the scope of certain non-financial activities in which federal ‚financial institutions may engage and to remove certain discrepancies between the English and French versions of that Act.
Subdivision B of Division 1 of Part 5 amends the Trust and Loan Companies Act , the Bank Act and the Insurance Companies Act to, among other things, permit federal financial institutions governed by those Acts to hold certain meetings by virtual means without having to obtain a court order and to permit voting during those meetings by virtual means.
Division 2 of Part 5 amends the Canada Labour Code to, among other things, provide a leave of absence of three days in the event of a pregnancy loss and modify certain provisions related to bereavement leave.
Division 3 of Part 5 enacts the Canada Water Agency Act . That Act establishes the Canada Water Agency, whose role is to assist the Minister of the Environment in exercising or performing that Minister’s powers, duties and functions in relation to fresh water. The Division also makes consequential amendments to other Acts.
Division 4 of Part 5 amends the Tobacco and Vaping Products Act to, among other things,
(a) authorize the making of regulations respecting fees or charges to be paid by tobacco and vaping product manufacturers for the purpose of recovering the costs incurred by His Majesty in right of Canada in relation to the carrying out of the purpose of that Act;
(b) provide for related administration and enforcement measures; and
(c) require information relating to the fees or charges to be made available to the public.
Division 5 of Part 5 amends the Canadian Payments Act to, among other things, provide that additional persons are entitled to be members of the Canadian Payments Association and clarify the composition of that Association’s Stakeholder Advisory Council.
Division 6 of Part 5 amends the Competition Act to, among other things,
(a) modernize the merger review regime, including by modifying certain notification rules, clarifying that Act’s application to labour markets, allowing the Competition Tribunal to consider the effect of changes in market share and the likelihood of coordination between competitors following a merger, extending the limitation period for mergers that were not the subject of a notification to the Commissioner of Competition and placing a temporary restraint on the completion of certain mergers until the Tribunal has disposed of any application for an interim order;
(b) improve the effectiveness of the provisions that address anti-competitive conduct, including by allowing the Commissioner to review the effects of past agreements and arrangements, ensuring that an order related to a refusal to deal may address a refusal to supply a means of diagnosis or repair and ensuring that representations of a product’s benefits for protecting or restoring the environment must be supported by adequate and proper tests and that representations of a business or business activity for protecting or restoring the environment must be supported by adequate and proper substantiation;
(c) strengthen the enforcement framework, including by creating new remedial orders, such as administrative monetary penalties, with respect to those collaborations that harm competition, by creating a civilly enforceable procedure to address non-compliance with certain provisions of that Act and by broadening the classes of persons who may bring private cases before the Tribunal and providing for the availability of monetary payments as a remedy in those cases; and
(d) provide for new procedures, such as the certification of agreements or arrangements related to protecting the environment and a remedial process for reprisal actions.
The Division also amends the Competition Tribunal Act to prevent the Competition Tribunal from awarding costs against His Majesty in right of Canada, except in specified circumstances.
Finally, the Division makes a consequential amendment to one other Act.
Division 7 of Part 5 amends the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act to exclude from their application prescribed public post-secondary educational institutions.
Subdivision A of Division 8 of Part 5 amends the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to, among other things,
(a) provide that, if a person or entity referred to in section 5 of that Act has reasonable grounds to suspect possible sanctions evasion, the relevant information is reported to the Financial Transactions and Reports Analysis Centre of Canada;
(b) add reporting requirements for persons and entities providing certain services in respect of private automatic banking machines;
(c) require declarations respecting money laundering, the financing of terrorist activities and sanctions evasion to be made in relation to the importation and exportation of goods; and
(d) authorize the Financial Transactions and Reports Analysis Centre of Canada to disclose designated information to the Department of the Environment and the Department of Fisheries and Oceans, subject to certain conditions.
It also amends the Budget Implementation Act, 2023, No. 1 in relation to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and makes consequential amendments to other Acts and a regulation.
Subdivision B of Division 8 of Part 5 amends the Criminal Code to, among other things,
(a) in certain circumstances, provide that a court may infer the knowledge or belief or recklessness required in relation to the offence of laundering proceeds of crime and specify that it is not necessary for the prosecutor to prove that the accused knew, believed they knew or was reckless as to the specific nature of the designated offence;
(b) remove, in the context of the special warrants and restraint order in relation to proceeds of crime, the requirement for the Attorney General to give an undertaking, as well as permit a judge to attach conditions to a special warrant for search and seizure of property that is proceeds of crime; and
(c) modify certain provisions relating to the production order for financial data to include elements specific to accounts associated with digital assets.
It also makes consequential amendments to the Seized Property Management Act and the Forfeited Property Sharing Regulations .
Division 9 of Part 5 retroactively amends section 42 of the Federal-Provincial Fiscal Arrangements Act to specify the payments about which information must be published on a Government of Canada website, as well as the information that must be published.
Division 10 of Part 5 amends the Public Sector Pension Investment Board Act to increase the number of directors in the Public Sector Pension Investment Board, as well as to provide for consultation with the portion of the National Joint Council of the Public Service of Canada that represents employees when certain candidates are included on the list for proposed appointment as directors.
Division 11 of Part 5 enacts the Department of Housing, Infrastructure and Communities Act , which establishes the Department of Housing, Infrastructure and Communities, confers on the Minister of Infrastructure and Communities various responsibilities relating to public infrastructure and confers on the Minister of Housing various responsibilities relating to housing and the reduction and prevention of homelessness. The Division also makes consequential amendments to other Acts and repeals the Canada Strategic Infrastructure Fund Act .
Division 12 of Part 5 amends the Employment Insurance Act to, among other things, create a benefit of 15 weeks for claimants who are carrying out responsibilities related to
(a) the placement with the claimant of one or more children for the purpose of adoption; or
(b) the arrival of one or more new-born children of the claimant into the claimant’s care, in the case where the person who will be giving or gave birth to the child or children is not, or is not intended to be, a parent of the child or children.
The Division also amends the Canada Labour Code to create a leave of absence of up to 16 weeks for an employee to carry out such responsibilities.

Opposition Motion—Measures to Lower Food Prices

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Madam Speaker, yesterday evening we were debating a Conservative amendment to a Standing Committee on Finance report. This amendment sought to revive the proposal we had voted against just a few hours earlier, the miracle solution of the tax holiday that would last all summer. The taxes would resume once the House was back in session, just in time for us to collectively complain about their return.

Earlier yesterday, we were debating the simplistic solution to the fight against high grocery prices, because, as we know, in addition to solving all the world's ills, world hunger, the cancer and AIDS epidemics and all other problems, axing the tax on carbon will also guarantee more affordable food prices for all. In fact, if we abolish the carbon tax, food costs would go down to zero and everyone would eat for free.

A day after the Conservatives' simplistic motion, we are studying a simplistic motion moved by the NDP. We are shifting from a tax break to a price cap. I will read the NDP motion, as I will be talking about the three proposals it contains. There are some good ideas in there, but the Bloc Québécois cannot support it as a whole. It reads as follows:

That, given that the cost of food continues to increase while grocery giants such as Loblaws, Metro and Sobeys make record profits, the House call on the government to:

(a) force big grocery chains and suppliers to lower the prices of essential foods or else face a price cap or other measures;

(b) stop delaying long-needed reforms to the Nutrition North program; and

(c) stop Liberal and Conservative corporate handouts to big grocers.

The first thing is the basic wording, “That, given that the cost of food continues to increase while grocery giants make record profits”. We all agree on that. However, we run into the same problem that we saw with the Conservatives. They focus on the perfectly legitimate public anger, but then offer simplistic solutions instead of truly addressing the root of the problem.

Let us begin with point (a): “force big grocery chains and suppliers to lower the prices of essential foods or else face a price cap”. Say we support it. Now I would want to know how we are supposed to do this. Is there a how-to manual? How do we go about imposing a cap on the price of bread, for example, when wheat prices are negotiated at the Toronto Stock Exchange? How do we go about imposing a cap on the price of fresh vegetables, when prices are skyrocketing mainly because of crop losses due to drought or flooding, which are caused by climate change?

Unlike the Conservatives, the NDP does believe in climate change. However, the NDP continues to support the budgetary policies introduced by the Liberals, who are always giving handouts to oil companies, even though they contribute more to climate change than any other sector.

How do we force farmers to lower their prices when the price of nitrogen fertilizer has quadrupled? The price per tonne jumped from $250 to $1,000 between 2020 and 2022. How do we force a Californian produce grower to sell their broccoli cheaper in Canada than in the United States? Does the NDP think it can wave a magic wand and cap prices without creating shortages?

Point (a) is impractical and unfeasible, which is already reason enough for the Bloc Québécois to vote against the motion, despite the good intentions behind it.

Now, let us look at the enhancement of the nutrition north program. I will start by saying that this is a good measure. Since 2011, nutrition north has subsidized grocers in the far north to compensate for the high cost of transportation and lower the price of groceries. However, the program does not fully compensate for the high costs, which are due not just to transportation costs but also to low volumes and higher operating costs. Considering that the average income in the Inuit community is around $23,000 a year, which is shockingly low, it is clear that food insecurity must be a widespread problem.

Businesses offer workers from outside the community a golden bridge to encourage them to work in the north. The income of non-indigenous individuals is approximately $95,000 a year, according to a study by Gérard Duhaime, a professor at Université Laval with whom I rubbed shoulders in a previous life.

We agree with that part of the motion. If that was all the motion contained, both my colleague from Mirabel and I would have given very short speeches, two minutes at most. We would merely have said that we supported the motion. Unfortunately, all the rest of it dilutes and undermines the proposal's credibility.

The third point calls on the government to “stop Liberal and Conservative corporate handouts to big grocers”. The only thing we want to know is what that is referring to. The NDP often talks about a subsidy that Loblaw received a few years ago to replace its refrigerators with more energy-efficient models. That in itself is no scandal. I think we all aspire to that.

Besides that, the only handout I see the Liberals and Conservatives giving big grocers is their inaction. By doing nothing, by remaining silent and not taking action, they are giving them an indirect handout. In fact, there are no subsidy programs specifically for grocers, apart from nutrition north, for which the NDP is asking for more funding today. The NDP supports the only subsidy that exists. It is asking the government to enhance and improve the program, and that is what we are asking for as well.

As mentioned earlier, the companies that are really gorging on subsidies are the oil companies. In the past two years, the federal government has given them subsidy after subsidy. That was always the case, but it did not stop when the infamous coalition agreement with the NDP was signed. The tax breaks set out in all the budgets and economic statements will total $83 billion by 2035. That is more than $2,000 per capita, or almost $4,000 per taxpayer. The NDP keeps supporting every budget, every economic statement and every appropriation, no questions asked, in the name of an agreement to further intrude on Quebec's jurisdictions.

This spring, Parliament has been seized with bills C-59 and C-69. Today, the Standing Committee on Finance is voting as part of the clause-by-clause study of Bill C‑69. They could be at it until midnight tonight. It provides $48 billion in tax breaks mostly for the oil companies. Does the NDP support that? The answer is yes.

Since I only have two minutes left, I will finish my speech quickly. I will try to talk as fast as an auctioneer at those events we all occasionally attend in our ridings.

That being said, there is a real problem. I must emphasize that. The grocery industry is dominated by a handful of moguls, namely Loblaw, Sobeys and Metro. In 2022 alone, these three companies, the most affluent companies in the sector, reported over $100 billion in sales and drew in profits exceeding $3.6 billion. Yes, there is a competition problem. Small entrepreneurs have a hard time breaking into the market, since the grocery giants control everything. With a mixture of astonishment and consternation, we are seeing the growing concentration in the sector make it harder and harder for new entrants to break into the market or expand, making competition almost non-existent.

According to a 2023 Competition Bureau report, a grocery sector strategy is urgently needed. If the Liberals and Conservatives are giving these giants any handouts, it is by not having a strategy. That is the handout.

Let us agree on the fact that there are several possible solutions. We need to make it easier for foreign investors to enter the market. We need to increase the number of independent grocers. We also need to have clearer and more harmonized requirements for unit pricing. We also need to take measures to discourage, or even prohibit, property controls in the grocery sector. These controls restrict competing grocers from leasing space in the same building. They make opening new grocery stores much more difficult, if not impossible, and this reduces competition in our communities.

Why is competition so important? It is the backbone of the economy. Simplistic solutions are not the answer. The answer is more competition in the grocery sector.

[Dr. Pierre Larouche]

On clauses 8 and 9, I would think that what is now in Bill C-59 with the HHI is good. That's more in line with worldwide standards than market share thresholds, for sure.

As far as clause 3 is concerned, to me, the underlying problem is this need to always choose between sections 45 and 90.1 as a vehicle. That will not be changed. Then it would be a good idea to put some serious sanctions in clause 3 as well, but it will run into problems before the courts, because these are criminal provisions.

If you want to have a level of sanction that matches what is done elsewhere, it should be around 10% as a theoretical maximum. Typically, the authority will go around 4% or 5% of turnover at the level where the profits should be. That's the practice. That would mean, in Canada, if you go by a factor of one to 10 with the EU or the U.S., we would be playing in the $100 million range.

[Matthew Boswell]

Thank you for that very pragmatic question. I was hoping to have an opportunity to address that head on.

From the Competition Bureau's perspective, as I said in my opening comments, we're really pleased with the attention that's been paid to competition in this private member's bill, and other private member's and government bills to amend the law. I agree with Professor Larouche. It was probably too complex out of the gates in 1986, when it was, some say, drafted by the business community.

In terms of this bill, from the Competition Bureau perspective, I would say that we don't need to address clauses 2, 3, 5, 6, 7, 8, 9, 10 and 11. Clause 4, which deals with the penalty provision for federal financial institutions, is great in terms of the 14 years, but it should be a fine at the discretion of the court—not a maximum fine, the $25 million that it has now.

On clause 12, the bureau believes—and we put this in our recommendations to ISED—that a three-year limitation period for notifiable transactions is a good step forward. Right now, it's only one year. With our colleagues in the United States, there's no limitation period on reviewing mergers.

Finally, with respect to the costs award, that has been addressed in Bill C-59, but I would just point out that in our submission to ISED, we talked about full immunization. Bill C-59 is a pretty reasonable balance so, one way or the other, we're pretty happy with how that comes out. Really, quite strongly, we don't believe that we need those other clauses. They've been addressed in Bill C-19, Bill C-56, and hopefully soon in Bill C-59, but this has been a valuable contribution to the debate and the marketplace of ideas.

[Dr. Pierre Larouche]

Yes, I would tend to say you are right.

On the first question regarding the behaviour of the corporations, we have to understand that corporations do what they have to do. They have legislation. They hire lawyers and consultants, and they make arguments. The more legislation there is, the more arguments there will be. Especially when it is in the law, judges feel they are able to interpret it. The end result is precisely judgments like Tervita Corporation.

When it is policies of the competition bureau or the authority in place, judges tend to show a certain restraint and give the bureau the benefit of the doubt. I think it is still a good idea to have a balanced law.

On the 60% figure, in the other territories, so that is the European Union and the United States, on the issue of controlling concentrations, they start with tests based on the Herfindahl-Hirschman index, or HHI: all of the concentration indices we have at present or we will have if Bill C‑59 is passed. Market share does not play an enormous role because it is not a very good indicator.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you, Mr. Chair.

First, welcome to all of you. It is kind of you to be here today with us.

I want to come back to your testimony, Professor Larouche. We are studying bills here whose purpose is to improve the competition regime, such as Bills C‑56 and C‑59. As you said, there are always additions that seem to have a lot of merit, but they are always minor additions.

What I understand from your testimony is that there are two ways of reforming the Competition Act. The first would be to establish a very clearly defined framework that would give the competition commissioner a lot of latitude, and the second would be to add interminable conditions, which would give the impression of action but would ultimately make the law so complicated it ceased to be functional.

Recently, I spoke with some people about the case of the United States in connection with the structural presumption question. They told me that in the United States there was a presumption in favour of consumers, and that in some cases the competition authorities did not necessarily have to justify their decision to the extent they have to do here in Canada. It would seem that this makes the regime more flexible and faster and reduces the volume of potential appeals, since it provides better protection for consumers. We know that consumers have very diffuse interests, while the interests of corporations, which have resources, are concentrated.

Could this presumption in favour of consumers be adopted into the Canadian competition regime?

[Dr. Pierre Larouche]

First of all, earlier, Mr. Singh mentioned 60% as a European figure. I don't think so. I think in Europe, the threshold for a firm to be found dominant is around 50%. In the U.S., it's around 60%,. However, this is a different question. It's not about merger control.

What is now in Bill C-59.... Again, we can argue whether it should be in Bill C-59 or in guidelines, but the HHI approach is in line with what is being done in the U.S. and in Europe. The thresholds are not quite the same, but they're typically a good way to get into a case and spot the cases that deserve some closer attention from those you can just let go to focus your resources elsewhere.

[Antonio Di Domenico, Secretary, Competition Law and Foreign Investment Review Section, The Canadian Bar Association]

Thank you, Mr. Chair.

I want to express appreciation on behalf of the CBA section for the invitation to appear today. Our members have significant experience advising a wide range of clients in competition matters. We appreciate the opportunity to be heard, so thank you for that.

By way of overview, many of the issues addressed in Bill C-352 have either been addressed in Bill C-56, which received royal assent in December 2023, or contained in Bill C-59, which is currently before the Senate. I would like to speak today regarding two proposals in Bill C-352. namely, the merger prohibition and structural presumption provisions, at clauses 8 and 9 of the bill; and the inclusion of efficiencies as a factor when assessing competitive effects for mergers and civil competitor collaborations, at clauses 7 and 10 of the bill.

Beginning with the merger and prohibition provision, Bill C-352 would create an arbitrary bright line precluding Canada's Competition Bureau and the Competition Tribunal from evaluating the competitive effects of mergers with a combined market share at or above 60%. The proposal would not take into account or differentiate between any level of increased concentration, even if the acquired target had, for example, a share of 1%.

This would be unprecedented and would make Canada a global outlier. Competition and antitrust laws globally recognize that market share and concentration alone are not themselves determinative of market power and competitive effects. As the Competition Act already recognizes, a conclusion regarding the competitive impact of a merger must evaluate such important factors as the likelihood of entry and expansion, the role played in the market by the acquired entity, the presence of other vigorous and effective competition in a market, and the nature of change and innovation in a market, among other things. In our submission, it would be inappropriate to fetter the ability of the Competition Bureau and the Competition Tribunal to conduct an analysis of market power and competitive effects based on the facts and evidence before them.

Bill C-352's emphasis on market share and concentration to the exclusion of other factors also presents three further significant problems.

First, the approach would remove entirely the analysis of what matters most, which is competitive conditions pre- and post-merger, in favour of a focus on just market share statistics that are not themselves determinative of market effects.

Second, in many cases a factual conclusion regarding market share cannot be reliably drawn based on a company's current market share.

Third, merging parties frequently do not have the requisite data to determine what their market share is in any relevant antitrust market. The Competition Bureau collects such information as part of its review, but unless the bureau plans to share this information with merging parties or their counsel as part of the enforcement process, which they don't currently do unless required to in litigation, significant due process concerns arise for merging parties.

Turning to the structural presumption provisions, the CBA section does not support the inclusion of structural presumptions in the Competition Act. We agree that concentration and market share levels can provide a useful preliminary screening mechanism to identify potentially problematic mergers. However, we disagree that a merger should be presumed to cause anti-competitive effects on the basis of market share alone.

Further, including structural presumptions in the Competition Act, a statute, will not harmonize Canadian law with U.S. law. This is important. In the U.S., structural presumptions were introduced in non-statutory enforcement guidelines, which are flexible in nature and are preferable to a fixed statute. It's not part of any U.S. legislation. If structural presumptions are introduced, we would submit that the appropriate place to introduce them would be in the Competition Bureau's merger enforcement guidelines, similar to the approach that continues to be taken in the U.S.

Finally, turning now to efficiencies, Bill C-352 proposes the inclusion of efficiencies as an explicit statutory factor in sections 93 and subsection 90.1(2) of the Competition Act when assessing whether a merger or a civil competitor collaboration would likely substantially lessen or prevent competition.

The CBA section agrees with this inclusion. It's well recognized in Canada and globally that efficiencies are a relevant factor when assessing competitive effects, because they can result in mergers or competitor collaborations being pro-competitive, enhancing productivity and benefiting consumers. The Competition Bureau has advocated for efficiencies to be among the list of factors that the Competition Tribunal can consider when assessing competitive effects. This change would also reinforce the bureau's current approach when assessing the competitive impact of mergers and civil competitor collaborations, in any event.

Thank you for the opportunity.

[Matthew Boswell, Commissioner of Competition, Competition Bureau Canada]

Good afternoon, Mr. Chair. Thank you for the invitation to appear before you today.

My name is Matthew Boswell and I am the commissioner of competition. With me is my colleague Anthony Durocher, who is the deputy director of the competition promotion branch.

We are pleased to be here today to discuss Bill C‑352. As a result of several pieces of legislation, competition policy in Canada is undergoing a generational upgrade. We are grateful to the members of this committee and other people who have particularly stressed the need to strengthen competition in the Canadian economy.

As you undoubtedly know, most of the important points in Bill C‑352 have been incorporated into past and future legislation: Bills C‑19, C‑56and C‑59. Those amendments give effect to a large number of recommendations by the bureau and better harmonize our competition framework with the best international practices.

Just as competition in the marketplace forces firms to offer products and services that better meet consumer needs, competition in the marketplace for ideas leads to better public policies. In my view, the sponsors of Bill C-352 and other private members' bills introduced this session deserve credit for prompting substantial improvements to the Competition Act. These improvements include, among other things, a significant revamp of our abuse of dominance provisions, including stronger penalties, the addition of rebuttable structural presumptions in merger reviews and stronger remedies for anti-competitive mergers, the possibility for formal market studies to be initiated by the commissioner, and insulating the commissioner of competition from adverse cost awards at the Competition Tribunal.

By my count, there are only a few outstanding elements of Bill C-352 that have not been taken forward already in other legislation. In the grand scheme of competition law modernization that has taken place, the remaining issues are not of pressing concern, but certainly, some of them could further enhance the Competition Act. We would be happy to discuss those few elements.

There are also some aspects of the bill that would, in my view, represent a step backward, given prior reforms, such as the reintroduction of a cap on cartel fines. We would be happy, of course, to discuss those as well.

During our time today, or perhaps in a future appearance before this committee, it might also be productive to discuss what I often refer to as the elephant in the room in Canada. That is regulatory barriers to competition in this country.

The Competition Act is a foundational tool to protect and promote greater competition in Canada, but it is not the only tool. To build on the incredible progress made in modernizing the Competition Act, all of us in the public sector, at all levels of government, need to examine what more can be done to address the regulations and policies that hold back competition in Canada, often unintentionally. We know that Canada’s competitive intensity has decreased over the last two decades. It will take a whole-of-government approach to turn the tide, with the federal government working alongside municipal, provincial and territorial governments.

Increased competitiveness is key to tackling affordability challenges, improving consumer choice and fostering stronger, more inclusive growth over the long term and, importantly, addressing Canada’s pressing need for more productivity.

Competition policy in Canada is clearly having a moment. We need to seize that moment. There has never been a stronger consensus that Canada needs more competition. Now is the time for governments across Canada to work together to make competition a national economic priority.

In conclusion, the competition bureau is determined to apply the law in a transparent and evidence-based way. We have been unwavering in our efforts to implement the new and improved tools that Parliament has given us, and we will stay on this course.

Thank you for giving us the opportunity to appear before you today.

It will be our pleasure to answer your questions.

Thank you. We look forward to your questions.

[Dr. Pierre Larouche, Professor, Law and Innovation, Faculty of Law, Université de Montréal, As an Individual]

Thank you, Mr. Chair.

Thank you for this invitation to appear before your committee.

Allow me to introduce myself briefly. I am a full professor of law and innovation in the law faculty at the Université de Montréal. I have 30 years' experience in competition law and economic governance, partly in private practice, but mainly as a professor of competition law in Europe. I taught in Europe for 15 years. At the College of Europe, I taught a number of European Commission officials who work on major competition cases. I taught American competition law during a sabbatical year at Northwestern University. For the last seven years I have been at the Université de Montréal, where I continue to work in this field. I am back in touch with Canadian law.

It is a pleasure to speak to you this morning. I would like to start with a slightly theoretical comment on all of this. There are a lot of good intentions behind the proposed amendments to the Competition Act, such as Bill C‑56, which has been passed, and Bill C‑59, which is under consideration. However, if we compare Canadian law to the law of other member countries of the Organization for Economic Cooperation and Development, the OECD, it stands out in two regards: first, the act is very long and very complex; second, the institutional framework is deficient. As a result, Canadian competition law is weak and difficult to enforce. The defendants, the corporations, will be easily able to defend themselves, and they will generally succeed in avoiding enforcement.

Since the act is long and complex, it is my opinion that we have to stop adding details to it. Instead, we need to go back to broad principles, take clear broad policy positions, and give the commissioner and the competition bureau more room to do their work.

Regarding the institutional framework in Canada, the bureau should have decision-making powers the way it is done everywhere in Europe, even in the United Kingdom, and, in part, for the powers of the American authorities. I think that if we look at what has happened recently in Canadian law, especially with the merger between Rogers and Shaw, the tribunal was the main problem. It should have acted only as an appeal body or, even better, should do judicial review on the basis of a decision of the bureau.

I am now going to talk about the two more specific questions that concern you today regarding Bill C‑352, which Mr. Singh referred to earlier. Increasing penalties under section 45 is a good idea in itself, but again, this shows how complex the Canadian law is, forcing a choice between sections 45 and 90. Obviously, the penalties need to be high under section 45, but that is criminal law and it is not as easy. An appropriate penalty, as mentioned here, would be 10% of worldwide revenues. Ideally, if we look at the practice of the European Commission and the American authorities, the level of the penalty should be about the same as the level of the corporation's profit for it to really hurt; it is generally about 5% to 6% of revenues. By adopting a maximum penalty of 10%, Canada is in the right league, and that means that the penalties should easily amount to hundreds of millions of dollars.

However, regarding the second proposal, the market share thresholds for controlling concentrations, I think that is a reference point that is a bit outdated. It is preferable to have a good general test and let the bureau do its work. Market shares may cause errors in both directions. First, there may be the exceptional case of a merger with high market shares where it would still be possible to prove that it is good for consumers. Second, and most importantly, there are also mergers with lower market shares that may be harmful to consumers, for example where the two merging parties are close competitors in the market.

These are factors that are definitely part of the contemporary analysis of competition law and that cannot be addressed in terms of market share thresholds, which obviously create the illusion that the only problem arises out of horizontal mergers, when vertical mergers, or conglomerate mergers, can be just as problematic.

Those are my introductory comments.

Thank you again for hearing me today.

[Jagmeet Singh, NDP, Burnaby South, BC]

I would first point out that the changes in both Bill C-56 and Bill C-59 were amendments specifically brought in by the NDP to address higher penalties and anti-competitive behaviour. Those amendments were successful, and we're happy that we were able to push for those things.

The same approach to anti-competitive behaviour is not being mirrored by the approach to price-fixing. It is not the same approach. Even when you cited Bill C-19, it doesn't have the same rigour when approaching anti-competitive behaviour as when approaching price-fixing.

Specifically, when I talk about price-fixing, we're talking about the situation when corporations collude, work together or have a conspiracy to set prices higher together. Specifically what I'm referring to is the bread price-fixing. That matter, the bread price-fixing, has not been addressed. It is one of the most egregious recent examples of large corporations ripping off Canadians. That specific matter has yet to be addressed. What I'm calling for are clear penalties that address that matter. That is the area where we suggested amendments that the Liberals turned down.

The Liberals have not shown a willingness to go after what has been the most egregious recent example of corporations working together to rip off Canadians, which is when they colluded to rip off Canadians with the price of bread. That's what I'm going after, and that has not specifically been addressed.

We are setting a guideline for penalties to address the matter. The $50 million fine, which was the highest fine on one of the most egregious cases, was far too low. It was barely a slap on the wrist. The guidelines that we're providing would give judges serious remedies to put in place a penalty as severe as 10% of the revenue of the corporation, which, in the case of a company like Loblaws, would be $6 billion. That's what I'm talking about when I talk about remedies.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Great. Thank you, Chair, and thank you to Mr. Singh for appearing before the committee.

I want to cover the overlap between what the government has presented and this bill. Obviously, we passed major competition reforms with Bill C-56. It empowers regulators to hold the companies accountable, and it does stand up for Canadians. We gave more power to the Competition Bureau to conduct more effective investigations. We made it easier to block mergers that are not in the best interest of Canadians and took action against collaborators that stifle competition and reduce consumer choice.

If there were something lacking in Bill C-56, I think that was largely covered by Bill C-59, whose amendments have resulted in a more modern and effective competition law. Among other things, they help prevent harmful mergers and anti-competitive collaborations, and they hold the large firms accountable.

I want to talk about your testimony in response to Mr. Badawey's questioning. You talked about how, perhaps, what your bill brings is more of a focus on price-fixing and on penalties, but then I look at Bill C-19, which is from 2022 and says:

Division 15 of Part 5 amends the Competition Act to enhance the Commissioner of Competition's investigative powers, criminalize wage fixing and related agreements, increase maximum fines and administrative monetary penalties, clarify that incomplete price disclosure is a false or misleading representation, expand the definition of anti-competitive conduct, allow private access to the Competition Tribunal to remedy an abuse of dominance and improve the effectiveness of the merger notification requirements and other provisions.

When I look at all these bills in combination, it largely seems that what Bill C-352 is proposing is already covered.

What are your comments on that?

[Jean-Denis Garon, Bloc, Mirabel, QC]

I understand the need to reduce the threshold to 30% from 35% and do a study. On the 60% threshold, I think this is an aspect of the legislation that will probably never have any teeth.

I have one last question for you, Mr. Singh. My time is running out—you know what it is like not to be part of the official opposition.

I would like to talk about Glentel. As you know, Bell and Rogers have formed a joint venture, and it is soon going to have a monopoly on the sale of cellphone plans in Loblaws grocery stores. Your bill tackles market structure, but it seems to me that even after Bills C‑56 and C‑59, there are still behaviours that seem anti-competitive but are still allowed.

What is your opinion about this business model? What do you think about the idea of two competitors forming a joint venture and holding the monopoly in a big grocery chain?

Do you think these are anti-competitive practices? Do you think we should go even further than what Bills C-56 and C-59 have already done?

[Vance Badawey, Liberal, Niagara Centre, ON]

Thank you, Mr. Singh.

Again, I mentioned what Bill C-56 and Bill C-59 contained. You mentioned those two points. Are there any other missing elements in those two bills?

[Vance Badawey, Liberal, Niagara Centre, ON]

Thank you, Mr. Chair.

Thank you, Mr. Singh, for being here today.

I'm not going to attempt to put the focus on the politics of the life that we live here in Ottawa, nor the parties that we represent. I want to put the focus on people and fairness.

When the government introduced Bill C-56 and Bill C-59, that's in fact what we did: We put the emphasis on people and on fairness with respect to competition reform. To some extent I think that's what you're trying to do here, too, and I appreciate that.

With that said, through those bills we have established strengthened market studies and the power to compel. We've clamped down on anti-competitive behaviour and cross-industry collaboration. We've removed the efficiencies defence, strengthened the right to repair, strengthened anti-greenwashing provisions, strengthened merger review and cracked down on unfair pricing practices—including drip pricing—as well as strengthening monetary penalties.

I've read your PMB, and I appreciate the intent, but also appreciate what we've accomplished through Bill C-56 and Bill C-59.

What I really want to do is get a bit more granular, Mr. Singh, and drill down on the business part of it, not the politics of it.

You mentioned some of the missing elements of those bills. Correct me if I'm wrong, but you said they were missing strengthened penalties. Therefore, my first question is: What more strengthened penalties do you want to have, over and above what are identified in both of those bills? My second question is whether certain mergers should be banned if they reach a certain level.

Can we get a bit more granular on that? Quite frankly, my intent is to take something away from this discussion and accomplish what you, we, the committee—I would only assume all of us—want to accomplish with respect to being fair, and again, attaching it to the people whom we represent.

[Jean-Denis Garon, Bloc, Mirabel, QC]

We will await your thoughts on that. Thank you.

Many of the provisions of your bill have already been applied, since they are part of bills that were passed earlier, such as Bills C‑56 and C‑59. However, part of it would still add a lot of constraints on competition authorities.

Essentially, with the legislative changes that have been made so far, not only must the competition bureau look for efficiency gains before authorizing a transaction, but it must now also be possible to prove that consumers have benefitted from the efficiency gains. Your bill then adds a constraint associated with market structure, not the consequence of a merger. If the combined market share resulting from a merger exceeds 60%, it will be prohibited, and if it is between 30% and 60%, there will be an investigation, if I understand correctly.

What would happen, for example, in cases where there is what is called a natural monopoly, in remote regions? There are grocery chains in very remote regions that have trouble staying open, and if they do not merge in order to take over the market, they will go bankrupt and people will no longer have food.

Do you know that the inflexibility of your bill would prevent people from eating, in some regions? Have you thought about that?