Mr. Speaker, I welcome the opportunity to rise this evening to participate in the third reading debate of Bill C-452.
This private member's bill seeks to amend the Competition Act to provide Canada's Commissioner of the Competition Bureau with the power to launch a broad-based inquiry into an industry sector in Canada.
I will give a brief history of this bill in Parliament.
Bill C-452 was added to the order of precedence last spring and referred to the Standing Committee on Industry, Science and Technology, of which I am a member, just prior to the summer recess of Parliament.
The industry committee took up its consideration of Bill C-452 in two sessions this past December prior to the Christmas break. With the support of all three opposition parties, the committee members agreed to report the bill back to the House of Commons without amendment. This is where we stand today.
The government has raised several concerns with Bill C-452 over the last number of months and I will highlight a number of them.
First, it is not evident that the new powers proposed in the bill are required or helpful given the authority that the competition commissioner already has under the existing legislation. The 2009 amendments to the Competition Act provided the commissioner with significantly stronger tools to take action against cartel activities, which are a source of concern underlying this bill.
Second, there is a risk that authorizing this use of formal investigation powers to conduct open-ended inquiries into industry sectors could pose significant compliance and reputation costs on the businesses that they affect. This would also impose significant financial and human resource costs on the Competition Bureau. This would require the commissioner to reallocate resources away from her current enforcement priorities, including cartel investigations and other anti-competitive conduct that negatively impacts the day-to-day lives of Canadians.
Third, during the committee hearings it became evident that a misconception regarding the commissioner's ability to initiate an investigation into wrongdoing or, specifically, an incorrect concern that she does not have this power, may be a driving force behind the bill.
While appearing at the Standing Committee on Industry, Science and Technology in December, the representative from the Competition Bureau clarified that the competition commissioner does not require the powers in this bill to discharge any of her enforcement responsibilities. The commissioner already has clear authority under the act to initiate her own investigation into the actions of businesses and individuals whenever there is evidence that the enforcement provisions have been, or are about to be violated.
More important to our debate today, she does not have to wait for the filing of a complaint by the public or for instructions from the minister. In fact, the committee was told that at the time of the hearings, approximately 30% of the ongoing formal investigations under the act were initiated by the commissioner without having received a complaint regarding that matter. Clearly the commissioner is able to exercise her discretion to act whenever the circumstances warrant.
In our debate on the merits of the bill today, we believe it is important that we also reflect on the advice that the Canadian Bar Association provided to the committee in December. During their testimony, representatives of the Canadian Bar Association examined the types of outcomes resulting from such broad-based industry inquiries. Their overall conclusion was that they could not foresee any circumstance where there would be any overreaching benefit to society resulting from this bill.
The Canadian Bar Association explored three possible outcomes.
First, at the end of such an inquiry the commissioner concludes that the sector in question is sufficiently competitive. In that situation, the bureau would likely be widely criticized, both for significant financial costs and for disruptions it imposed on the daily business operations of Canadian businesses, only to confirm that the market in question was indeed competitive.
Second, the sector is not sufficiently competitive. However, this could be owing to such aspects as the structure of the market and is in no way related to the conduct that offends the specific enforcement provisions of the Competition Act.
As we are aware, the commissioner does not gain any new authority through the bill that would allow her to impose structural changes on the market. As a result, in these circumstances there would be a finding that the market is not competitive, but there would not be any avenues available to the commissioner to address the problem. Such an outcome would only result in widespread frustration to the entire process.
A third outcome that the Bar Association highlighted is that the commissioner could determine that the industry is not sufficiently competitive and that it is indeed the result of activities that violate specific provisions of the Competition Act.
The bar cautioned committee members that the bureau's ability to pursue a subsequent case using its enforcement powers may be potentially undermined on account of the legal due process concerns arising from the manner in which the evidence was collected.
In particular, the bar was of the view that serious legal challenges could arise regarding the rights against self-incrimination, where information is compelled from a person for the purpose of a market-wide inquiry and then later used in enforcement proceedings against that person.
Even in this case, where anti-competitive behaviour has been identified, the commissioner's ability to challenge the behaviour may be hindered because of the legal constraints that could arise from this bill.
The bar also took the opportunity to remind committee members of the fundamental objective that the Competition Act is designed to address, which is to protect the competitive process and not the day-to-day operations of specific markets. This is done through targeted enforcement action against specific anti-competitive conduct. The act is not intended to regulate the operations of a market.
In conclusion, I want to remind the House that it has only been 24 months since Parliament passed the most significant amendments to the Competition Act in 20 years.
During the industry committee's review of Bill C-452, both the Canadian Bar Association and representatives from the bureau emphasized the value and clarity provided by these new laws, which make it clear and unequivocal that it is illegal to agree with one's competitor on price, market allocation or output levels.
In effect, this government provided the competition commissioner with access through the amended legislation to new and powerful provisions that clearly strike at the heart of the concerns that underlie this legislative initiative.
It is important that we allow more time before we move to consider further changes to such an important piece of the framework of legislation. Only in that way will we be able to judge the full effect of the new provisions that this government has introduced to the Competition Act.