Mr. Speaker, I am pleased to speak to a bill that was only tabled on Friday. The bill contains rather substantial and vast changes to legislation, which would normally pass through the process of input by parliamentarians and the Canadian public.
For the purposes of brevity and the time allotted to me, I want to talk most specifically about an area I am familiar with, as are those who have worked with me for the past 15 years or so, and that is the area of competition policy.
The 500 page document, known as Bill C-10, contains within it about 50 pages amending the Competition Act. For most of us here, it may seem very arcane legislation, but for those of us who have worked on it we know full well that there are a number of stakeholders, views and ideas that germinate from an idea as to how our economy functions.
The last time a significant undertaking of the Competition Act took place was in 1986. In fact, its origins can be traced back to 1981, when the Business Council on National Issues wrote a report recommending a number of changes to the former Combines Investigation Act, which was seen as highly punitive and not very helpful toward promoting the competitive process. That was a very different generation. We know that the 1986 amendments, which took years of consultation, were also predicated on the Macdonald Royal Commission, a commission that very bluntly stated that Canada should accept a higher level of concentration in order to compete with the rest of the world. This is reflected in at least one particular document by the Red Wilson committee last year, and I will get to that in just a moment.
Since then, a number of attempts have been made to amend the Competition Act. We have led many industries to unacceptable levels of concentration, such as the pharmaceutical, food and oil and gas industries, particularly the downstream of the gasoline industry, with which I am somewhat familiar and in which I have a small and slight interest.
I can say with some certainty that amendments I have tried to bring forth to the Competition Act have been very hard-fought, for and against, by members on all sides of the House and a number of stakeholders more often than not representing the competition bar. So the public can understand what that means, it means only the largest of companies that have benefited from a competition act, arguably written by very large enterprises, have been able to take advantage of this. Some of our brightest minds, who articulate and are concerned and concentrated in competition policy, happen to be those representing well-endowed, well-financed and very well-placed large corporations in this country.
It is not surprising we have a Competition Act that has led to the eclipsing of competition in a number of areas. In regional monopolies, I cite the energy industry. One would be familiar with Superior Propane, which was allowed to use a loophole in the Competition Act, under the efficiencies defence, to create a virtual monopoly in the area of propane. The evidence of that is right across the country. We have re-sellers selling a company from one particular company.
Given the significance and the battles, particularly on the government's side, in its former Reform Party, the Canadian Alliance and the former Conservative Party, and given the advantage the Americans have of telling the world how much energy they have, one would think some of the recommendations that came out of the appointed Red Wilson committee of last year, which the government appointed, would at least be given the opportunity to be challenged or given the time of scrutiny in our legislative bodies in order to object to any changes to the Competition Act, or even suggest that we could have an oil price monitoring agency that would give Canadians transparency and provide it on a day-to-day basis. However, that is not the case.
We have before us a rather dramatic and significant change to a very important lever in economic policy in one foul swoop. Arguments on both sides are coming out now. Some say it is too dramatic and too drastic, while others have suggested it is too little, too late. I tend to be in the camp of too little, too late.
Let us be very clear about what the changes entail. They entail some restrictions in terms of how we look at conspiracy, price fixing and collusion. I agree with those, with respect to the removal of the test of undueness. However, I am most concerned by the fact that there is a number of measures, recommended by those who have attended, that have now found their way into law, or will find their way into law should we accept the bill.
It is as if we have decided that we cannot withstand the various arguments about the need to ensure we get competition policy right and modernize it to reflect the fact that we are a nation in which many of our major industries are highly concentrated. Many of those decisions are made overseas.
My first concern is about the process. This is the biggest undertaking in a generation. It was certainly done without great consultation, post the depositing of this legislation. The last, of course, in 1986, took effect after a number of years of consultation and, as I indicated earlier, was predicated on intensity and concentration. This time I think it is fair to say that what is proposed here, right or wrong, does not have the benefit of input.
I am concerned about several points in the competition amendment sections. In my view the threshold in deciding values is too high. That is a decision that has been made here that if we are going to determine a foreign takeover or a merger, we are going to look at the issue of threshold. Right now it has not been changed since 1986, when it was some $400 million. It is proposed that it go incrementally up to $1 billion in the next couple of years.
All that would have been fine last year, but the economy has changed. What is promoted in this bill and the budget which underlies it, and I note the finance minister has put an emphasis on that, really describes the fact that there is declining value, which means that there may be opportunities in the private sector for assets to be acquired at fire sale prices.
I think it is clear that when businesses and companies might be had for a lot less, the last thing that needs to be done is increasing the threshold. That might have been applicable last year when prices for everything were fairly high, but this year we seem to be dealing with bargain basement prices. I think it is important for us to recognize that it may be the wrong prescription at precisely the wrong time.
Regarding merger review and the Competition Bureau, this is asking that the time in which a merger takes place be somewhat complementary to the United States. There is one distinct difference between antitrust legislation in the United States and here in Canada. That is one of the reasons that in the gasoline industry we see a lot of competition down there and here we do not. The reason is simply this, it is properly resourced. The Competition Bureau is now being asked to look at mergers without the concomitant resources in the budget or in this plan to ensure that it can be effective and prevent the competitive process from being eliminated.
The second point is that we talk about administrative monetary penalties. If this party or another party, and I am referring to a business, decides to put another party out of business in a scheme to be anti-competitive under abuse of dominance or under conspiracy provisions, under reviewable matters, the damage is not in stopping the activity from taking place. It is that the company that has offended is subjected to an administrative monetary penalty which goes into the pockets of the government as opposed to addressing the aggrieved party, as it is done in the United States and in many other parts of the world, where we actually provide damages.
It is a significant difference between ourselves and the United States. We have tried to model part of the legislation on the American model, but we are not prepared to give an effective defence to companies in Canada that may find themselves the object of a proven anti-competitive act. Of course, once the damage is done, the government gets the money, the company is out of business, and the competitive process is damaged forever.
It is not lost on some of us who have studied this that these are some of the illustrations of ideas that should have come out in a proper and normal process in which bills are debated, bills are brought before committees, and experts are allowed to give testimony before they pass the acid test of change.
I can say that there are changes in here that I support, but a lot that I cannot. I will continue on that point.
The Red Wilson committee also talked about the need in foreign review to look at something that might be contrary to Canada's interest as a test for rejecting or accepting a foreign takeover of a company versus the net benefit to Canadians.
This is rather nebulous because it does not tell us what is contrary to the Canadian interest. I can understand that from a security point of view. Some will remind us of the case of Minmetals. It is a far weaker standard in protecting that Canadian interest, let alone the competitive interest in this country, than the net benefit. The net benefit must accrue to Canadians.
It seems to me that we have tried to cast too far a line in terms of trying to attract international investment. We may lose the opportunity to demonstrate that we are prepared to stand up first for businesses that are going to be making investments in Canada. In my view no other nation would consider the test of contrary to our national interest over the net benefit. There may be arguments to that effect, but we will not hear those arguments, neither in this House nor in committee nor among Canadians.
The other area that concerns me is the area of foreign ownership of transportation, particularly with respect to pipelines. Many of those pipelines were made by public investments. These are public pipelines given to the private sector for a song as part of an agreement to create national energy efficiency and now given as part of a potential takeover by foreigners. I think it is a concern.
I mentioned administrative monetary penalties, but there is nothing in this that talks about the ability to tell Canadians on a day to day basis what the energy picture is or what the consumption picture is in Canada. Every day, starting Wednesday morning at 10 o'clock and 10:30 a.m. the Americans and the world would know where countries are with respect to energy. That could have been in this bill. It is not. It ought to be. This bill certainly needs to be looked at, but it is the wrong time to be proposing this.