To begin, the CBA strongly believes that the proposed amendments to the Competition Act should not be in the BIA. Given the critical role of the Competition Act in promoting dynamic and fair markets, and given the importance of innovation, meaningful and thorough consultations are necessary to ensure that the underlying policy objectives of the proposed amendments are indeed achieved.
The CBA does support the government in its ongoing review of the Competition Act but believes that the amendments proposed in the BIA need to be further amended, studied and refined to ensure they improve the operation of the act and do not create unintended adverse consequences.
Let me provide a few examples.
On abuse of dominance, we are concerned that the proposed substantive amendments on abuse may be overbroad and carry the unintended consequence of softening competition on the merits. These concerns are augmented by the amendments in the BIA that permit private parties to seek relief. The CBA is concerned that competitors will use the threats of private litigation and large penalty awards to deter conduct by rivals that may be pro-competitive and beneficial to Canadians.
On the penalties, the BIA proposes to increase the amount of administrative monetary penalties for both deceptive marketing and abuse of dominance to three times the value of the benefit derived or, if that benefit cannot reasonably be determined, 3% of annual worldwide gross revenues. In the view of the CBA, there is no policy for considering benefits arising or sales made outside of Canada when determining an appropriate penalty. The CBA believes that any attempt to connect an AMP to the benefit derived or the overall revenue received should be limited to benefits and revenues in Canada.
As you have heard, there are potential constitutional issues with large punitive amounts for non-criminal conduct. We have concerns that punitive amounts will damage Canada's reputation as a good place for foreign firms to do business, with negative effects on the Canadian economy.
My colleague, Monsieur Thérien, has a few more examples.