Industry committee  I don't think anyone would accuse the Competition Bureau of not spending any resources in looking into the oil and gas industry. We see them quite regularly doing studies on a voluntary basis on that industry. I can only assume that if the Competition Bureau had any inkling that anti-competitive conduct was responsible for the nature of pricing in the oil sector, they would not be shy to take action, certainly now that the criminal conspiracy provision is much easier to prove.

Industry committee  I'll start. Thank you for your question. The Commissioner of Competition, when conducting an inquiry under section 10, does actually obtain a fair amount of information from other market participants, and it's all on a voluntary basis, sometimes on a mandatory basis. Careful attention is paid to what is absolutely necessary to carry out the commissioner's enforcement mandate because there are real costs on members of the market who have not done anything or who are not suspected of having done anything anti-competitive in having to provide that information.

Industry committee  I think there are some issues that arise going the other way, looking at the whole industry, and then figuring out from there if anybody is doing anything wrong. The real issue is there are weaknesses in the case. The case is undermined by not having made a person properly a target of an inquiry from the beginning.

Industry committee  I think when people complain--and people complain about all kinds of things--the real question is, what is the substance of their complaint? So if they call the Competition Bureau and nothing in what they're saying suggests that there is any conduct in the market that is anti-competitive, then it's probably appropriate for the commissioner not to take any action.

Industry committee  There is definitely a concern about the pressures that would be placed on the bureau to use this power and where those would come from. The issue you raise also suggests a concern that if the commissioner were to undertake a market inquiry, immediately there would be an inference that something was wrong with that industry.

Industry committee  One thing that perhaps is not fully appreciated is that the power of the Commissioner of Competition to initiate an inquiry is actually quite broad. The first thing is that the Commissioner of Competition can respond to a complaint, which is either made directly or, if the commissioner is paying no attention to a complaint that has been made, a six-resident complaint can be brought essentially forcing an inquiry.

Industry committee  I think what you referred to in question 10, when you read it out, is exactly the problem, which is that the Competition Act says that the enforcement powers are exercised where there is reason to believe that there is some anti-competitive conduct in the market. If you look through all of the provisions of the Competition Act, you will not see any provision that says that being in a position of market power is itself anti-competitive.

Industry committee  Sure. First, on the new powers of the commissioner, I may have misunderstood, but I believe the representatives of the Competition Bureau yesterday were referring to the greater clarity that now exists under the criminal conspiracy provision. First of all, the language is very clear about the conduct that is a criminal offence; and secondly, the requirement that there be an impact on the market in order for there to be a successful prosecution has been eliminated.

Industry committee  The role of the commissioner as an advocate for competition is important, but I think it's important to recognize as well that we have decided in Canada that the Competition Bureau is really primarily an enforcement agency. For example, we would have had, at a certain point, the choice of looking at competition law in Canada as a way of protecting low prices for consumers, but that's not what we've said.

Industry committee  The first thing to say is that if a power exists there will be an expectation it will be used. The CBA and I thought about what the outcomes of an inquiry can be. We cannot come up with an outcome that puts the Commissioner of Competition in a better position to do something than having properly thought about a market, obtained information from market participants, and, if the circumstances warranted it, proceeding with an inquiry on a targeted basis.

Industry committee  If I may say so, and with respect, I think that, first of all, it's important to recognize that when the Commissioner of Competition does seek information on a voluntary basis, there is generally a real willingness of the business community to participate in that. I imagine that would be particularly true where there are issues relating to competition that are a barrier to industry members participating.

Industry committee  You're right that I'm here on behalf of the Canadian Bar Association. I'm not really in a position to tell you about who our clients are, because I'm here as vice-chair of the legislation and competition policy committee, expressing views that have been carefully considered by the Canadian Bar Association's executive on behalf of all members of the executive, who include a wide cross-section—

Industry committee  In the course of our work, we consult carefully with the Competition Bureau—

Industry committee  I think the constitutionality of the exercise of the powers contemplated is a concern, depending on how they're exercised. The Commissioner of Competition can undertake voluntary inquiries, which I think is a reasonable exercise of the commissioner's proactive power to enhance competition.

Industry committee  Thank you, and good morning. My name is Shuli Rodal. I am a partner in the competition and anti-trust law group of Osler, Hoskin & Harcourt in Toronto. I'm appearing today on behalf of the competition law section of the Canadian Bar Association. I would like to begin by thanking you very much for the invitation to appear on Bill C-452.