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Matthew Boswell, Commissioner of Competition, Pushes to Modernize the Competition Act

Stikeman | Peter Flynn | Oct 22, 2021

Competition law - Matthew Boswell, Commissioner of Competition, Pushes to Modernize the Competition Act

As the concluding attraction of this year’s Canadian Bar Association Competition Law Fall Conference, Commissioner of Competition Matthew Boswell gave a speech highlighting the Competition Bureau’s enforcement priorities for the year ahead. He underscored the Bureau’s view that “Canada needs more competition”, including through a comprehensive review of the Competition Act.

See:  Canada’s Competition Problem: 7 Reasons

The highlights from the Commissioner’s speech are summarized below.

More Money for Increased Enforcement

In Budget 2021, the Canadian Government promised $96 million in funding over five years, and an additional $27.5 million on an ongoing basis, to enhance the Competition Bureau’s enforcement capacity.

In his speech, the Commissioner outlined the priority areas for the increased funding:

  • the creation of a new Digital Enforcement and Intelligence Branch that will act as an “early-warning system” for competition issues in both the digital and traditional economies;
  • strengthened enforcement teams (e., hiring more officers to conduct investigations, more lawyers to litigate cases, and more external experts to bolster the Bureau’s claims); and
  • enhanced advocacy capacity, which in practice likely means an expanded Competition Promotion Branch to advocate for regulatory and other policy changes across Canada.

Advocating for Changes to the Competition Act

See: 

Monopoly-Friendly Canada ‘Does Not Treat Competition Policy Seriously’

Biden Administration Issues Executive Order “Promoting Competition” Including Consumer Data Ownership and Banking.

The Commissioner highlighted perceived gaps in the Competition Act inhibiting effective enforcement of competition laws in today’s economy, including:

  • weak maximum fines that are perceived as a cost of doing business rather than a meaningful deterrent to anti-competitive conduct;
  • strict and impractical legal tests to prevent alleged anti-competitive mergers;
  • the absence of private enforcement for certain anti-competitive behaviours; and
  • weaknesses in the cartel provisions that allow “buy-side” agreements that are harmful to workers such as wage-fixing and no-poach agreements.

The Commissioner also repeated his long-held critique that the efficiencies defence in merger reviews (which provides that mergers cannot be blocked if they result in cost savings and other efficiencies that outweigh and offset their competitive harms) may not be working in the best interest of Canadians.

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