Lexpert US Guides

18 | LEXPERT • December 2014 | www.lexpert.ca COMPETITION ENFORCEMENT He describes the initiative as one where the CB's reach is not strictly limited by its resources or constrained by international or domestic jurisdictional boundaries. In this vision, shared compli- ance – the concept that the Bureau, the legal community and the business community share responsibility to promote competitive markets – was central. e Bureau's reaction to the Competition Tribunal's (CT) decision in e Commissioner of Competition v. Visa Canada Corpo- ration and MasterCard International Incorporated testifi es to this collabora- tive approach. e Tribunal ruled that Visa and Master- Card had not engaged in resale price maintenance when they required the operators of their payments systems networks to impose certain conditions on the retail merchants using the networks. e CT reasoned that because what the networks were providing to the merchants was diff erent from what the credit card services provided to the networks, no "reselling" had occurred. What may be more signifi cant, especially from a policy perspective, is the CT's observation that even if the allegations had been proven, it would not have issued the order sought by the Commissioner, which would have amounted to a "blunt instrument" requiring constant adjustment in a varied "merchant sector" and "replaced one set of distorted incentives by another." Pecman took note. e Bureau decided not to appeal the ruling, hoping instead to "work collaboratively" with Visa, MasterCard and other stakeholders to achieve a result that would be "benefi cial to both Canada's consumers and merchants alike." Further evidence of a collaborative approach can be found in the Bureau's consent agreements with Interac, Agrium, Air Canada, United Airlines, Waste Management, and RCI. e same could be said of the guilty pleas by Hershey in the chocolate conspiracy case, by Yazaki and Furukawa in the motor vehicle components case, by Cathay and LATAM in the air cargo matter, and by JTEKT in the bearings proceedings. Pecman is also committed to intervening strategically with other regulators and government agencies to raise the profi le of competition policy considerations in their decisions. " ere has been a clear, concerted and proactive eff ort to strengthen relationships and try to infuse competition policy thinking into other regulatory bodies, like the CRTC, as these bodies attempt to come to grips with broader issues," says Neil Campbell in McMillan LLP's Toronto offi ce. One area of particular interest to the Commissioner is the connection between intellectual property and anti-trust. e Bureau has already promised to update its IP Guidelines, which have not been revised since 2001. As well, Pecman wants to address the kinds of issues that have arisen in the US with regard to "pay for delay" or "reverse settlements" between innovators and Washington, DC offi ce. " ere's a new relationship between the Commissioner and the Canadian Bar Association, what I would call a huge change," says Brian Facey in Blake, Cassels & Graydon LLP's Toronto offi ce. "Collaboration had dwindled to a dribble under the previous administration and the relation- ship became strained, but we've rebuilt bridges to the point where we now have members of the Bureau on the CBA's Competition Section committees and there has been a lot of back and forth." e upshot has been that the business community is feeling somewhat more empowered and confi dent in dealing with the Competition Bureau and competition issues generally. " e biggest things Pecman has been selling are transparency, accessibility and responsiveness," says Dany Assaf in Torys LLP's Toronto offi ce. "Relative to where we were before his appoint- ment, he has defi nitely delivered." Indeed, the Bureau went so far as to formalize its transpar- ency initiative by way of its Action Plan on Transparency. In June 2014, as part of that initiative, the Bureau released its informa- tion bulletin on Communication during Inquiries. e bulletin summarizes how and when the Bureau communicates during an inquiry with parties being investigated, industry participants, complainants and the general public. e Bureau also committed to reach out to stakeholders in a year a er the bulletin's release in order to obtain feedback on how the process was working and to make necessary adjustments. Among the prime benefi ciary of these new policies is the merger review process. " ere's a fresh approach which focuses on getting anything that's very straightforward in and out of the door quickly," Facey explains. "Also, the staff is far more engaged and trans- parent in expressing their concerns about a particular market or product and by way of letting parties in on what's going on in the Bureau's mind." Otherwise, Pecman's vision encompasses what he has spoken of as a "new approach" that he calls a "Bureau Without Borders." "BY AND LARGE Pecman is delivering. The Bureau's not perfect under Pecman and it won't be perfect after his tenure. But he has made the Bureau more predictable and he's been very accessible to both lawyers and clients." Chris Hersh > Cassels Brock & Blackwell LLP

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