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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34 LEXPERT MAGAZINE | Q3 2019 lies at the heart of the competitive process. Consumer switching spurs rivalry to win over and retain customers, which in turn enables innovation and economic growth. e Competition Bureau's role is to pro- tect this process by ensuring that competi- tive market forces work their magic to the benefit of the economy and its consumers. When we do our job well, it's easier for small start-ups to gain a foothold in their market, and it's easier for Canadians to de- velop trust in the online marketplace. e Bureau is not a regulator; we are an independent law enforcement agency, and we generally only intervene where compe- tition is being undermined and consumers are being harmed. So, how do we do this? Competition can suffer because of things that private actors do, but equally because of things that gov- ernments do. By enforcing and administering Canada's Competition Act, we aim to address both. I will begin by talking about the Bureau's targeted advocacy work to promote compe- tition with governments across Canada. rough our advocacy role, we are able to examine a given sector from a competi- tion perspective. We can identify barriers, such as regula- tions or policies that make it difficult for businesses to innovate or compete. And when we find barriers, we can make recommendations on how to reduce or re- move them and promote competition. Recently, we've worked with regulators and policy-makers across Canada to recom- mend changes to make banking more con- venient through FinTech and open banking. And we've made recommendations to municipalities struggling with the disrup- tive arrival of ride-sharing services such as Uber and Ly. Bad and out-of-date regulations can hurt. ey can stifle disruptive entrants, dis- courage innovation and deter investment. In a 2018 study, researchers, using OECD data, found that Canada has some of the highest levels of competition-stifling regulation among developed economies. ey estimate that Canada could see a 4% to 5% boost in productivity by re- forming regulations and reducing barriers to entry. In the age of big data, many regulations will need updating as more and more indus- tries are disrupted by data and the advent of artificial intelligence. It will be challenging for policy makers at all levels of government to embrace a data- driven economy while protecting health, security, safety, privacy, and environmental standards. is can be especially challenging with entrenched business interests who advocate for the status quo and for imposing dispro- portionately high barriers to entry for new and disruptive competitors. In our present data-driven age, there is a real opening for governments across Can- ada to seize the opportunity presented by new technolog y, to adopt pro-competi- tive regulations, and embrace the future — to the benefit of Canadian consumers and businesses. e Government of Canada recognizes the importance of pro-competitive regula- tions and has taken important steps to pro- mote competition. For example, the Treasury Board is leading a three-year targeted regulatory review process. ree initial sectors recently completed their reviews (health, agri-food, and trans- portation) and relevant changes are being considered through Budget 2019. Now, while we advocate for laws, policies and regulations that embrace competition and innovation, private actors can still un- dermine our efforts. History has taught us, from the dawn of the industrial revolution, that there need to be checks and balances in the system. is is where we get to competition en- forcement, the heart of our work. is enforcement involves investigating and addressing abuses of market power, anti-competitive mergers, price fixing and deceptive marketing practices. Evidence-based, principled decisions are at the heart of what we do to ensure that firms compete on the merits of their prod- ucts and services. We have conducted several notable inves- unleash the potential of the Canadian economy. I plan to discuss the role of competition in the economy, the impact of data on competition and the Competition Bureau's work in this regard. Let me begin by stating an underlying principle of antitrust law: Competition is critical to the productivity of an economy and to the welfare of its consumers. e process of rivalry between firms to outdo one another and fight for consumer spending underpins a robust economy — it incentivizes the creation of value and rewards entrepreneurship and innovation. Competition brings out the best in us and forces us to work a little harder and be a little more creative. Without effective competition, or the threat of it, things can get a little too cozy and complacent, and we may be less likely to improve and innovate. My wife reminds me all the time how marriage bears simi- larities to these principles! In a properly functioning open market, merit-based competition should ensure the better-quality product offered at a lower price is rewarded. Equally important, consumers can "pun- ish" poor market performance in the form of higher prices or lower quality by switch- ing to a rival company. Consumer switching, or the threat of it, ANTONIO DIDOMENICO FASKEN LLP "The plan is bold, explicit, aggressive and people-centric. The plan is bold by embracing the accelerating pace of digital disruption and with its stated goal of making the Bureau a world-leading competition agency in a rapidly advancing digital economy."