Thank you very much for the invitation to appear here today.
Before I begin, I think it's important to say that I'm here speaking in my personal capacity. My comments are my own and do not necessarily reflect the views of Fasken or its clients, where I currently serve as a senior business adviser, nor the Canadian Chamber of Commerce, where I was recently appointed a fellow to write an independent report on the future of competition policy.
During my career at the Competition Bureau, I received 34 and a half years of extensive hands-on experience in enforcing and administering the Competition Act. It was a privilege to serve as the commissioner of competition for a five-year term. Since leaving the bureau, I have primarily been advising business clients on the functioning of the Competition Act and the Competition Bureau.
Many of the comments today in my opening statement have been sourced from an article I wrote while commissioner, entitled “Unleash Canada's Competition Watchdog: Improving the effectiveness and ensuring the independence of Canada's Competition Bureau”. It was published in September 2018. I like to believe that this article has helped inspire some of the new competition policy reformers in Canada. The thesis of my article was that the design and administration of competition policy are due for a facelift.
My understanding is that the current hearing is studying small and medium enterprises, or SMEs. A properly designed and implemented competition policy will enable this sector to more fully participate in the economy and stimulate economic growth, innovation and job creation.
Barriers, either from excessive regulation or from anti-competitive conduct in markets, harm competition and Canada's international competitiveness. The Competition Bureau, through its enforcement and advocacy remits under the Competition Act, protects and promotes a competitive and innovative marketplace and, by extension, all SMEs in Canada. A strong competition law can protect SMEs by deterring dominant companies from adopting abusive or other anti-competitive practices. SMEs also benefit from the low cost of inputs that occur in a healthy competitive economy.
This June, the government implemented amendments to the Competition Act to address concerns about market concentration, among others, while maintaining the fundamental principles underlying the act. Although not perfect, and done without consultation, these amendments provide a good start to the government's reform of competition policy.
The current commissioner of competition, Matthew Boswell, has highlighted the need for a competitive domestic economy to increase Canada's productivity and international competitiveness. I wholeheartedly agree with this proposition, and some of the key additional competition reforms that I am advocating for are as follows.
The first is the creation of an independent competitiveness council in Canada. It would advocate in favour of more competition and less regulation in markets to improve Canadian competitiveness, as recommended by the competition policy review panel in 2008.
Second is to safeguard the Competition Bureau resources and provide the bureau with a stronger voice to advocate competition by making it a truly independent law enforcement agency, similar to the Office of the Privacy Commissioner.
Third is to strengthen merger control by reforming the efficiencies exemption and by adding other pro-competitive factors to be considered in assessing the prevention or lessening of competition. These factors could include new economic activity in Canada generated from a merger, such as employment, investment, dynamic efficiencies, research and development, and exports from Canada.
Fourth is to limit further expansion of the abuse of dominance provisions at this time to test the effectiveness of recent amendments. We should continue to monitor legislation that is being proposed abroad and is aimed at dominant digital platforms in the EU, the U.S. and elsewhere. Many of these reforms introduce regulations to tame alleged market power, which may have unintended consequences, such as dampening innovation and investment in the digital sector. Digital technologies and markets evolve rapidly, requiring the Competition Bureau to make and take immediate remedial action to minimize competitive harm. I believe the bureau should be given new tools, such as streamlined injunction powers that would allow it to investigate and dispose of cases in a more expeditious manner within the existing legislative framework.
Lastly, sectoral market studies are the primary method the Competition Bureau advocates for governments and regulators to achieve greater competition. An example is identifying reforms to sectors with unnecessary restrictions on competition. There are currently no express powers in the Competition Act that allow the bureau to undertake market studies or that provide it with formal powers to compel production of information for these studies. However, as they can be burdensome to businesses, market study powers must be reserved for appropriate cases and incorporate procedural safeguards.
I look forward to taking your questions. Thank you very much.