Evidence of meeting #30 for Industry, Science and Technology in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was businesses.
A recording is available from Parliament.
12:50 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
It may be something we want to consider then.
We heard from a witness, last week I think, in relation to the efficiencies defence needing to be updated. Do you have any comment as it relates to the efficiencies defence?
12:50 p.m.
Partner, Affleck Greene McMurtry LLP, As an Individual
I have no comment on that section.
12:50 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
That's okay.
With respect to mergers and acquisitions, from speaking with some counsel, my understanding is that M and A transactions in Canada.... The competition commissioner confirmed for us at his last attendance that there's a statutory bar after one year. I understand that the FTC is looking at reviewing M and A transactions going back six and eight years.
Do you think that kind of misalignment is a problem and we should maybe look to update that?
12:50 p.m.
Partner, Affleck Greene McMurtry LLP, As an Individual
For business certainty, there's a point at which, if there are problems on a go-forward basis, I would think you could capture that with abuse of dominance, because the issue of substantially lessening and preventing competition is in both the merger section and in the abuse of dominance section.
I think if there are problems five years down the road, the abuse section might be the better way to deal with it than to try to unscramble a transaction from years ago.
12:50 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
My understanding would be that the abuse of dominance provision relates to specific activities delineated in section 78, which is anticompetitive activities, whereas the idea as it relates to M and A would be.... We're concerned about—in some cases, like the Shaw-Rogers deal potentially—hyperconcentration of a particular sector. It may not be that they engage in anticompetitive activities, so it wouldn't engage abuse of dominance, but it may well be that it substantially lessened competition all the same.
I take your point on business certainty. One year seems strict, though. My understanding is that it used to be three years.
Do you see the penalties as particularly stringent enough in the act to date? I've heard some say it's the cost of doing business, that we should be looking at disgorgement as a key consideration, and that AMPs should be effectively equating the penalty with the benefit and properly extracted.
What do you think about disgorgement as a focus, as opposed to quite modest, administrative monetary penalties?
12:50 p.m.
Partner, Affleck Greene McMurtry LLP, As an Individual
I think that, with the private right of action and an ability to claim damages, that would achieve some of that effect. The AMPs are, I think, $10 million to $15 million. That's not insignificant, although I suppose with the size of the business that might be insignificant.
In terms of disgorgement, I think the better way to deal with that is through a private right of action.
12:50 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I understand. As far as disgorgement is concerned, for private right of action, is it fair to say we might want to consider updating the penalty amounts?
12:50 p.m.
Partner, Affleck Greene McMurtry LLP, As an Individual
I suppose that everything is subject to ongoing review.
12:50 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I have one other.... It's a small issue in some ways. We've heard from the commissioner, of course, that it's the chair of the tribunal who wields significant power and happens to be a judge.
Do you think the tribunal should be term-limited, as it is in other countries?
12:50 p.m.
Liberal
12:50 p.m.
Liberal
The Chair Liberal Sherry Romanado
Thank you very much. That is the end of the third round. Seeing as there is not enough time to allow for all members to get another round in, we will end here today.
To the witnesses, thank you for being here and for your excellent testimony.
As a gentle reminder to our members, if you have not sent your list of witnesses to the clerk for this study, please do so immediately so that we can reach out to folks and schedule them with enough time for them to obtain the headset that is required. Also, if you have not provided the clerk with your witnesses for the next study, which is on green recovery and will be beginning in two weeks, please make sure to get those names in as soon as possible so that we can start contacting the witnesses.
With that, I thank everyone again for being here today.
I want to thank the interpreters for their hard work, as usual, as well as the IT services.
I thank the analysts and the clerk for their time today.
I call the meeting adjourned.