Industry committee  I think the point Mr. Schaan was trying to make and the point we were trying to raise earlier—

Industry committee  The interpretation of “sensitive information”, of course, would be applied to all of these sections, but I—

Industry committee  Specifically, it would be consent. I think if I understand your example correctly—

Industry committee  I think it's proposed subsection 15(5) that speaks to consent.

Industry committee  I think the point the member was raising earlier was about how this would impact the practice. If I correctly understand the example reference made, there's already an existing payment system that would manage these issues. However, of course, the point the department is trying to raise here is that the payment processing system is predicated on our system of laws, including PIPEDA.

Industry committee  In other words, the list itself is final. It can be added to, but what about the stuff that's on the list? The way this is currently constructed.... Our point is that it must be sensitive no matter the context.

Industry committee  As Mr. Schaan pointed out, the context dependency for any analysis of sensitivity of any information is critical. It's a cornerstone of the OPC's submission to this committee that we start with a context analysis of collection, use or disclosure of any information. That's really important because, while there may be some scenarios where it is somewhat rare for a category to be considered sensitive or not sensitive, the contextual piece is what gives the commissioner the ability to ensure that privacy is being protected at the highest level.

Industry committee  Thank you. I'll touch on a few points within the bulleted list to offer some considerations, starting with (d), for example. The reference here is to “genetic data or biometric data”. In this instance, it would likely be more appropriate to reference “information” rather than “data”.

Industry committee  Thanks very much. If there is going to be an addition of this personal information in respect of context, where the current wording says, “due to the context of its use or disclosure”, then we would suggest that it should be “the context of its collection, use or disclosure”. It would be more appropriate to have that framing a bit further up ahead of the bulleted list so that it provides a reasonable frame for reading the entire section, rather than as a follow-on at the very end of the list.

Finance committee  Mr. Simard mentioned the 35% threshold that's currently codified in the Competition Bureau's guidelines versus the 30% here. That's exactly why it's important to maintain some degree of flexibility, as other jurisdictions do. It's not just about evolving economic theory. It is also about specific markets and testing these approaches, as the Competition Act is an enforcement statute and it is meant to be tested in law.

Finance committee  Our read of NDP-13 is that it mirrors very faithfully the Herfindahl-Hirschman index that is used by the FTC. The difference in this case is an important one, which is that the guidelines in the United States are just that. They are guidelines. They can be refreshed and updated regularly.

Finance committee  I think that's a very fair statement. It's much more malleable or open to change and updates on a regular basis by virtue of being a guideline versus being in a statute.

Finance committee  I think that's correct. It would be more comparable.

Finance committee  That's a great question as well. Most nations don't have very restrictive statutory rebuttable presumptions on mergers. We're aware of Germany, which codifies 40% as the cut-off point for rebuttable presumptions on mergers. It's really important to be able to continue to monitor the market and understand how things are evolving.

Finance committee  Bill C-59, as drafted, obviously did not set out a statutory presumption for unlawfulness. Rather, what the bill proposes to do is to essentially repeal the bar against the tribunal issuing a merger remedy solely on the basis of evidence of concentration of market share. The government has proposed to make a significant move from the current state of affairs, in which the tribunal cannot consider market shares as a basis for decision-making, to move towards a scenario in which, in fact, market shares can be used as an approach, which again eases the enforcement burden.