Lexpert Magazine

September 2019

Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.

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LEXPERT MAGAZINE | Q3 2019 33 e plan is aggressive in its promotion of pro-competitive public policy in Can- ada, emphasizing competition as a means for a competitive and innovative market- place. e plan is people-centric in focus- ing on the development of Bureau em- ployees and recognizing the importance of well-trained human capital in achieving the Bureau's mandate. e rapidly evolving digital economy, including the emergence of firms that control and exploit big data, are funda- mentally changing the competitive land- scape within which firms price, customize products and services and predict market trends. e emergence of data-driven platforms (which bring together multiple types of users in a digital platform, such as Uber, Google and Amazon) and network effects (where consumers benefit from a COMPETITION FEATURES enforcement and the role of antitrust in the face of the rapidly evolving digital economy. is debate has not been prevalent among Canadian politicians and policy makers nor have Canadian politicians and policy mak- ers prioritized competition enforcement as much as their counterparts in the US and other jurisdictions. Given its ambitious plan, the Bureau is prioritizing investments in its people. e Bureau's plan seeks to modernize its en- forcement tools to strengthen its investiga- tions in the digital economy, which it has done in part by hiring its first Chief Digital Enforcement Officer. What is conspicuously absent from the Bureau's plan is any discussion of due pro- cess and whether the Bureau intends to increase the speed with which it conducts investigations and reviews significant merg- ers, having regard to the accelerated pace of economic activity and digital disruption. e Bureau's annual plan is the first from Canada's new Commissioner of Competi- tion, Matthew Boswell. e plan's ambi- tions and implementation are attention worthy. Stay tuned. Antonio DiDomenico is a partner at Fasken LLP, practising in Competition Law from the Toronto office. Remarks on Big Data Lexpert brings you this speech by the Deputy Commissioner, Monopolistic Practices, Competition Bureau By Anthony Durocher As prepared for delivery on June 13, 2019 in Toronto. I'm very pleased to be here this morning among so many innovators who are har- nessing the vast potential of data and find- ing new and better ways to deliver products and services. Today's digital economy is driving unprecedented innovation and productiv- ity improvements, but it's also disrupting the status quo, for business and regulators alike. My goal here today is to examine this new reality through a competition lens, and focus in on the opportunity data represents for businesses and regulators to product when other consumers increase their use of that same product, such as a social media platform) are numerous, com- plex and unpredictable. Competition laws and their enforcers around the world are being challenged to keep up. e Bureau's plan embraces this challenge. It explicitly desires a nimble, adaptive and confident Bureau in the face of rapid technologi- cal change and foreshadows an upcoming four-year plan to address it. e plan prioritizes high-impact and con- sumer-focused enforcement cases in areas that the Bureau believes matter most to Ca- nadians. In this regard, the Bureau calls out certain industries: TELECOMMUNICATIONS: Acknowledging the importance of mobile products and inter- net services for Canadians to communicate and stay connected, the plan desires lower prices, increased choice and improved service standards from mobile and internet providers. HEALTH AND BIOSCIENCES: Acknowledging the importance of innovation and competition in the health and biosciences sector, the plan specifically identifies access to medica- tion by Canadians. It desires competitive pricing and offerings for medication and truthful advertising for health and perfor- mance products and services. INFRASTRUCTURE: Acknowledging the importance of safeguarding government and taxpayer investments in infrastructure, the plan desires an end of bid rigging in the infrastructure sector, using tools such as the Bureau's Immunity and Leniency Programs and the Federal Contracting Fraud Tip Line. e plan seeks to promote pro-com- petitive public policy and regulatory out- comes. e plan directly (and inferentially) advocates competition as a policy prior- ity in Canada. Context is important here. Competition/antitrust enforcement is a major and well-funded policy priority glob- ally. Competition policy in the wake of new challenges is also a hotly debated issue in foreign jurisdictions, particularly in the US where the President, Democratic nominees running for president and many other in- fluential policy makers and thought lead- ers regularly and publicly debate antitrust

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