The original purpose of the efficiencies defence was to allow businesses the opportunity to achieve scale, so that they could better compete internationally. That's the more superficial rationale. The layer below that is that the efficiencies defence exists because decades earlier, in the 1960s, there was a fundamental shift in how scholars and legal experts understood the role of competition policy. This shift was away from the original understandings of antitrust in the United States, from a more consumer-focused, economic fairness and justice lens to one that focuses exclusively on efficiency.
It's important to have efficiency as part of the mandate of competition policy. In that sense, it would make sense to retain some of that goal in any revisions to the Competition Act.
The problem with the efficiencies defence is that it's very structured in the way it forces the Competition Bureau and the Competition Tribunal to assess efficiencies. It pits consumer interests against those of businesses and gives preference to businesses.
As our economy evolves and we move towards a more digital age, the philosophy underpinning the efficiencies defence isn't really that relevant. I'm not sure whether the efficiencies defence has actually achieved what it set out to do. Again, the number one user of the efficiencies defence has been Superior Propane, and I'd be interested to know whether Superior Propane has actually become a Canadian champion in the global sphere. There's a lot of research that we need to be doing on the effectiveness of our competition policies, and we actually don't have the tools to do that compared to other jurisdictions.
To answer your question directly, the efficiencies defence as it is, section 96, has to go. Maybe there is a way to imbue the act with a frame of efficiency, but the way that provision is structured is not conducive to creating equitable economic outcomes.