November 28, 2023 – Canada’s Competition Act must remain effects-based, and the Standing Committee on Finance must exercise caution reviewing the legal test for abuse of dominance, according to a new Communiqué from the C.D. Howe Institute’s Competition Policy Council.
In its twenty-fifth report, the Council discusses recent calls for bright-line rules and presumptions, examining whether such proposals are an appropriate approach for competition law enforcement to effectively address affordability and lagging productivity in Canada.
“The removal of an effects-based analytical framework is more likely to protect competitors over the competitive process, which by its nature involves winners and losers, and is likely to deter pro-competitive conduct and chill innovation and investment in Canada,” says the Council’s latest Communiqué. “Given Canada’s falling productivity and the need to bolster competition in our economy, the majority of the Council is especially concerned with the costs of mistakenly condemning pro-competitive behaviour.”
With the speed of these recent amendments and diversity of views on this topic, the Communiqué adds that the Council is disappointed in the lack of consultation and debate on these legislative proposals and their implications.
By preserving an effects-based legal test for an abuse of dominant position, the Competition Bureau will have what it needs to protect Canadians without deterring pro-competitive conduct and chilling innovation and investment in Canada, concludes the Communiqué. Additionally, firms will have the requisite certainty that optimal enforcement decisions will be made as a result of a robust evaluation of the legal and factual issues that arise on a case-by-case basis, with a consistent application of the legal framework.
The Competition Policy Council is comprised of top-ranked academics and practitioners active in the field of competition law and policy, and provides analysis of emerging competition policy issues.
Elisa Kearney, Partner, Competition and Foreign Investment Review and Litigation at Davies Ward Phillips & Vineberg LLP, acts as chair. Meanwhile, Benjamin Dachis, Associate Vice President of Public Affairs at the C.D. Howe Institute and Professor Edward Iacobucci, Competition Policy Scholar at the Institute, advise the program. Members participate in their personal capacities and the Council convenes a neutral forum to test competing visions and to share views on competition policy with practitioners, policymakers, and the public.
For more information contact: Lauren Malyk, Communications Officer, C.D. Howe Institute, 416-865-1904 Ext. 0247, lmalyk@cdhowe.org
The C.D. Howe Institute is an independent not-for-profit research institute whose mission is to raise living standards by fostering economically sound public policies. Widely considered to be Canada's most influential think tank, the Institute is a trusted source of essential policy intelligence, distinguished by research that is nonpartisan, evidence-based and subject to definitive expert review.