Building antitrust with trust
Remarks by John Pecman, Commissioner of Competition
Canadian Bar Association Spring Conference
May 10, 2018
(As prepared for delivery)
Thank you for that kind introduction.
So I’m feeling sentimental today. Because this is the last time I’ll be talking to you as Commissioner. This day, for me, has me thinking a lot about how we all move through life. One day you’re 21, and your whole career is ahead of you. You blink and 35 years are gone. Just like that.
So much has changed in that time. And yet the Leafs still haven’t brought home the Stanley Cup. Next year, right?
For three decades I’ve had the honour of working at Canada’s Competition Bureau: internationally recognized as a leader in effective competition enforcement.
Back in 1984, when I started as a case handler fresh out of school, I never expected—or planned—to serve as Commissioner. But life is full of surprises. And leading this agency and its staff is an experience that’s given me so much. Both professionally and personally: it has been the high point of a thoroughly rewarding career for me.
I’ve talked a lot about the intersection between competition and innovation. And about emerging issues in the digital economy. A lot of looking ahead. But today, something different.
Let’s look back a little – back to 2012. It’s yet another bad year for the Leafs (they hit the golf course early for the 7th straight season that year). But that’s also the year I got a new job: appointed as Interim Commissioner.
I have to tell you that call was entirely unexpected. And in accepting it, I made it clear I’d no intention of serving as a caretaker. So I charted my own course. And I did it the way that matters deeply to me. By building trust.
Why was that so important?
Because now—like then—declining public trust is a major challenge in our society. We can’t ignore this. Trust is integral to the very survival of institutions and building a better tomorrow for our kids. It’s the key to strong governance, to successful public policy and—in our case—to effective enforcement and advocacy.
My mission in 2012 was to make the Bureau a trusted institution.
Trusted by the legal and business communities. Trusted by Canadian consumers. Trusted by governments and enforcement partners, both domestic and international. I laid the groundwork for that in my very first speech as Commissioner. I talked about trust through collaboration.
Research tells us when we talk about public institutions, a number of key elements of trust-building are at play: transparency, openness, inclusiveness, reliability.
So I set out to make the Competition Bureau open, transparent and collaborative.
I did that based on everything I’d learned over my previous 30 years at the Bureau as an investigator, manager and senior executive. This organization taught me everything I needed to know to do this job. And knowledge is only useful when it’s shared. So, there are three big lessons I learned that I want to share with you now.
- First, that our approach means everything where trust-building is concerned.
- Second, that we’re defined by the challenges and the successes we experience in getting there.
- And finally, I’m going to talk about how we can apply what we’ve learned. So all of you – moving forward and working together – can keep improving the Bureau’s effectiveness as Canada’s competition watchdog.
Approach to trust building
So, my first point: approach is everything.
When I was appointed Commissioner in June of 2013, whether it was merited or not, I saw myself – as coined by my usually loving wife Susan – as a “Black Swan”. I was the first career Bureau staffer and the first non-lawyer to head the organization. So that was different. And on top of that, I had set some pretty lofty goals for the Bureau. So that meant change.
People saw it that way. And they were right. Because I sure did.
Looking at this job, I saw four must-do things to make the transition work:
- Adopt a shared compliance approach;
- Increase our guidance;
- Enhance our domestic and international partnerships; and
- Restructure the organization through an internal realignment.
Let me tell you about each of these.
First: shared compliance.
Changing the relationship with stakeholders had to happen first. Because it signalled a shift in how we would approach compliance going forward. A more altruistic approach. And so I began talking about shared compliance very early in my tenure, and followed up quickly with implementation.
And people took notice.
As you’ve heard me say many times, knowing the roles we each play in ensuring compliance with the Competition Act and other legislation enforced by the Bureau is critical. It’s a shared responsibility. Not just by the Bureau, but by the legal and business community, too.
With this new approach, we made collaboration the cornerstone. We engaged our counterparts in international and domestic law enforcement. We sought their expertise. And in learning from our experiences, we reached out to our partners in the legal and business communities.
From there, we revised the Corporate Compliance Bulletin and established a Compliance Unit. It now oversees and coordinates all of our compliance-related activities. We published the Competition and Compliance Framework, which provides guidance on how the Bureau promotes compliance through a wide variety of outreach, advocacy and enforcement tools.
I believe now what I did then: that this collaborative approach really works. It’s helped us immeasurably in ensuring compliance with the law. More than what we could do alone.
I know this because I’ve seen the results. Case in point: look at the recent, very public announcement by Loblaws – that it would voluntarily enhance its competition law compliance program and move to an independently audited ISO standard. As you know, this is in response to its role as an immunity applicant in an alleged industry-wide price fixing arrangement involving packaged bread products.
Next on that list is increased guidance.
Greater clarity, transparency, and certainty for the business and legal communities was integral to improving our accountability and, hence, our relationships with them. It made our work more effective, too. So we worked hard to put in place an Action Plan on Transparency. This laid out how we intended to approach increasing transparency about our work. The goal being a more cost-effective, efficient and responsive agency.
Increased guidance also showed up in how we spoke as an organization. We increasingly used position statements. And we are updating other key enforcement-related guidance documents.
More recently—to provide insight into the impact of Big Data on competition enforcement—we authored an internationally award-winning white paper on this topic.
Since 2013, we’ve published 71 position statements and 70 separate technical guidance documents.
As I mentioned before, our work to increase guidance is far from finished. We’re currently consulting on, or developing, a number of important documents, including:
- revised Abuse of Dominance Guidelines,
- updated Immunity and Leniency Programs,
- new Market Studies Guidelines,
- a practical guide to our approach to analyzing efficiencies,
- a retrospective efficiencies study, and
- a draft 2018-19 Annual Plan, explaining our priorities for next year.
With all of these initiatives, we recognize the importance of clarity for both consumers and the business community and the role that this plays in furthering economic growth, investment and the Bureau’s top priority—increasing compliance.
Third on that list is to enhance domestic and international partnerships.
The poet John Donne once said that none of us is an island unto ourselves.
That’s true for organizations, too. Strong working relationships are a hallmark of a successful organization. The Bureau’s no exception.
That’s why—over the past five years—we’ve done a lot to improve and expand our relationships with a number of our partners. We focused on organizations with whom we work most closely, including our lead department: Innovation, Science and Economic Development (ISED).
But we didn’t stop there. We signed 68 new or updated agreements that advanced our formal and informal working relationships with domestic and international partners. We also boosted our involvement in collaborative enforcement, in the review of international mergers and cartels, as well as cross-border deceptive marketing practices.
Our domestic collaborations include work with Public Procurement Canada, the CRTC and our law enforcement partners like the RCMP.
Internationally, we signed historic MOUs with India and China. And we engaged in a staff interchange with the Australian Competition and Consumer Commission (ACCC). That continues to this day. We also continue to work collaboratively on building a more constructive relationship with the PPSC.
But I would like to take a moment today to highlight the evolution of the Bureau’s long-standing relationship with the CBA.
We can all agree that, today, the Bureau and the Bar have a strong, positive working relationship. One that has helped compliance and lead to better competition law and policy products. One of fruitful collaboration and dialogue on many subjects. But it wasn’t always this way. Look back to 2006, and you see a broken relationship. One that was long overdue for repair.
So we took steps to fix this. Together.
Starting in 2006, as Assistant Deputy Commissioner, Criminal Matters Branch, I participated in a Task Force on Collaboration between the Bureau and the CBA. Alongside the late Bill Miller, Melanie Aitken and a number of you in this room, we developed recommendations to mend fences and promote collaboration. For guidance, we used the model employed by our friends at the ABA and the US antitrust agencies.
This set the stage for the Bureau and the CBA to work better together. And it worked.
Our work is inherently interconnected. So it was logical to bring people closer together so that our respective actions reflected that interconnectedness. Members of my management team became more involved in the leadership of the various CBA section committees. We improved the depth of dialogue between the CBA executive and our Senior Management Committee each year on the sidelines of the Fall conference. The fact that my office is engaged in your monthly section executive calls is also a testament to our shared values of transparency and collaboration.
In 2009 and 2010, the Bar’s advocacy and support was critical in implementing amendments that modernized our competition law: bringing important parts of it into line with the standards of our most important trading partner – the United States. The CBA’s support and input was also crucial for the Bureau’s guidance to consumers and businesses that flowed from these amendments, such as the Competition Collaboration Guidelines and the revised Merger Enforcement Guidelines.
When the Bureau’s focus shifted towards enforcement, we found ourselves in a more adversarial relationship and collaboration took a back seat. The Bureau was finding its feet under a new legal framework, and the relationship became more transactional. But, even during this rocky period, we came together as friends every year before the CBA Fall Conference at the annual Bill Miller Charity Golf Tournament to knock a few around.
Collaboration is fundamental to achieving shared compliance. It’s the key to trust building. Early on in my mandate, the CBA provided valuable input on our guidance in this area – the Corporate Compliance Bulletin.
Since then, the CBA has been instrumental in helping foster a culture of shared compliance, both directly and indirectly. The CBA’s above-and-beyond contributions to our guidance documents—like the Bulletin on Communication during Inquiries, and the award-winning Intellectual Property Enforcement Guidelines—are proof of this renewed collaboration.
You provided constructive input well beyond written submissions: these products are far better for it. As well, the SIR task force and the working groups that are tackling issues such as merger service standards are building capacity on both sides toward achieving a shared compliance culture in Canada.
In 2016, the CBA made a thoughtful and considered submission on the Government’s Innovation Agenda, highlighting the fact that competitive intensity fosters innovation. And last year, the CBA supported the major principles set out in the Bureau’s Big Data white paper. Both of these contributions helped to advance these priority areas for the Canadian economy.
Our renewed collaborative relationship has also yielded results abroad. I saw this in action in March, when Huy Do—a member of the CBA section executive—accompanied Jonathan Chaplan, Nigel Caesar and I to Vietnam to provide technical assistance to their developing competition law enforcement agency.
The force of our work together also spilled over to the Competition Tribunal / Bar Liaison Committee, where we are working jointly to improve adjudicative processes before the Competition Tribunal. For example, in 2016 this work resulted in the Tribunal practice direction on the use of mediation in matters before the Tribunal. This paved the way to the efficient resolution of several matters. In the coming months, my hope is that the Tribunal will finalize its Practice Direction regarding Scheduling, as well as issue a Fast-Track Practice Direction, both of which will serve to further improve the efficiency of the Tribunal’s processes. Collaboration among the Tribunal, the private bar and the Bureau though the Bench and Bar Committee has been instrumental in moving these very worthwhile initiatives forward.
I would like to give the CBA a heartfelt thank-you for their teamwork over the past five years. I hope you feel, like I do, that the risk of working together has paid off in building trust and significant improvements in the enforcement of Canada’s competition law.
But there’s still more work to be done. I know that many great initiatives are under way, from the Mergers task force to the exciting new competition law moot. These projects will serve to further strengthen the relationship going forward, and I am looking forward to seeing the results from the “other side” in the not-too-distant future.
There’s one more critical item on the list: realignment.
I’ve talked a lot about building trust through our external work. But the biggest challenge we’ve tackled in the past five years was internal to the Bureau: reorganizing the way we worked.
We broke down silos that once prevented us from working as efficiently as possible. We became “One Bureau.” That only happened through deliberate work.
We transformed an abstract concept into a mindset from which we operate. And it wasn’t easy. It began with a process we called realignment, which included internal restructuring, a new governance structure, increased delegation, and a three-year strategic plan.
This was a big shift. No more of that insular, unilateral approach that was no longer serving the Bureau or anyone else well. While it was the most drastic change we’ve undertaken in the past five years, it also was essential.
All of our external work wouldn’t matter unless we could build internal trust. Doing that meant following what evidence continues to show is critical for trust-building: increasing collaboration and engagement, recognizing and growing excellence, providing greater latitude to staff and sharing information.
Here’s what we did. We reduced the number of branches. So we could have greater internal collaboration. And so we could create what I like to call the “Crown Jewel” of realignment: the Competition Promotion Branch. This was to be our outward-facing branch, charged with tearing down the proverbial wall surrounding the Competition Bureau.
We established a new governance structure and increased delegation of authority for better decision making on the ground. Finally, we developed a three-year strategic plan that outlined our guiding principles, core values and our commitments for the coming three years in five key areas to: increase compliance, empower Canadians, promote competition, collaborate with partners and champion excellence.
I feel a sense of accomplishment about many things that took place during my tenure. But I’m exceptionally proud of the way Bureau staff pulled together to make restructuring a reality. Specifically, my heartfelt thanks go to the Bureau’s senior management team, without whom none of this would have been possible. Their support empowered our team and made the Bureau more effective.
Challenges and successes
In my introduction, I said there are three big lessons I’ve learned. Here’s the second: we’re defined by the challenges and the successes we experience in getting there.
It’s not just that we accomplished a list of things. We did that. But look at the approach we took. That’s been huge. It’s returned the Bureau to its role as a thought leader, both within Canada and on the international scene.
Here are a few examples.
First, there’s our new approach to enforcement.
Between 2013 and 2017, we saw an estimated $2 billion dollar increase in savings for consumers. That came from ending anti-competitive activities. At the same time, there was a jump of over $18 million in administrative monetary penalties. And we’ve more than doubled the number of investigations we are completing year over year. That’s from 28 in 2013 to 60 in just the first three quarters of 2017.
Looking at our new, shared approach to compliance, we’ve more than doubled our use of consent agreements, signing over 60 since 2013. We’ve employed alternative resolutions in 115 cases. And we’ve delivered over $19 million in restitution to Canadian consumers. This really underscores the success of our new approach.
These are all truly important accomplishments, because each one reduces reliance on the courts and enables us to use resources in the most efficient way possible. It means Canadian consumers get served well. Let me recap a few of the more notable cases.
Our investigation of retail gasoline price fixing has thus far resulted in 33 individuals and seven companies pleading or being found guilty, with fines totalling over $4 million. This was the Bureau’s first fully prosecuted win (Les Pétroles Global) in a cartels case in a number of years. It also resulted in two landmark decisions from the Supreme Court, confirming Crown immunity from testifying in a class action to which it is not a party (Thouin) and clarifying the law of evidence regarding disclosure of Bureau-held evidence in follow-on class actions (Jacques). The prosecution of this case continues, as one individual still awaits trial.
There is also our ongoing investigation into auto parts bid rigging in Canada. There, to date, we’ve had eleven guilty pleas and record-setting fines of over $84 million. The Bureau’s use of comity in resolving its case against Nishikawa Rubber with a US$130 million fine was unprecedented. And both the Bureau and its U.S. Department of Justice counterparts demonstrated that success can be realized through close cooperation.
The value of cases like these cannot be understated. We all know that cartel activity is the most difficult to detect and the most egregious anti-competitive behaviour, depriving consumers of competitive prices, better choice and greater innovation.
Next, there was the Bell/Astral merger. Resolved outside of litigation using a combination of structural and behavioral remedies, it was an early example of the potential for great negotiated results. And, as it was the first transaction to land on my desk – it sent an important signal about my intended approach as Commissioner.
Another notable merger case was the Parkland/Pioneer matter. Here, a number of firsts. The first time in the history of the Tribunal that a consent agreement was negotiated through mediation—sending a powerful signal about our new shared compliance approach. It was the first case of a contested injunction in a merger application. And it was the first time coordinated effects formed part of the Bureau’s theory-of-harm in a merger case brought before the Tribunal.
Digital economy and innovation
The Bureau’s approach to challenges is just as important as how it achieves successes. Look at how we’ve tackled the increase in digital economy and innovation cases.
In the past five years, enforcement in the digital economy has become a growing issue. It’s almost redundant to even use the term digital economy any more. It’s all the economy now.
Building trust in the digital marketplace through strong, principled enforcement is key. Both for consumers and businesses.
That’s why we focused our efforts in this area on building our knowledge base and our enforcement experience. We made it clear early on that the Bureau wasn’t afraid to take on significant players.
Perhaps the most significant of these – particularly in terms of supporting innovation – was our case against the Toronto Real Estate Board. That’s a case we pulled from the ashes in 2013.
The Board was found to have blocked its members from offering innovative brokerage models by restricting access to data. The landmark Tribunal decision in this case, subsequently upheld by the Federal Court of Appeal, underscored the crucial link between innovation and competition and the Bureau’s role in upholding them both. This case, which is now awaiting a decision from the Supreme Court on TREB’s leave application, has been in litigation every day of my tenure as Commissioner. It underscores the Bureau’s dogged commitment to taking on anti-competitive activity that hinders innovation and competition. If implemented, this decision will bring greater choice and innovation to Canadian families making one of the most significant transactions of their lives.
The Bureau’s investigation into e-books also provided important judicial guidance. The Federal Court’s February 2018 decision to reject Kobo’s application to challenge the consent agreement clarified the scope of third party challenges to settlements by way of judicial review. The Court found that these challenges should be heard only in “exceptional cases.” Further, in another of the many e-books proceedings, Justice Gascon suggested that Section 90.1 can apply in respect of economic activities occurring beyond Canadian borders which have an anti-competitive effect in Canada.
We also took on a number of digital economy cases that addressed deceptive marketing practices. They included drip pricing, astroturfing and misleading advertising. Big cases. Ones that boosted consumer confidence in the online marketplace. Cases that proved the Bureau would not shy away from taking on big players or complex issues in the digital space.
One of our early forays into this arena was our negotiated settlement with Bell Canada for its role in encouraging employees to post positive reviews and ratings for certain of its on-line products.
Drip pricing—the addition of significant hidden fees late in the payment process which inflate an advertised price—figured prominently in our recent enforcement work. This includes our current legal action against Ticketmaster and its parent company, Live Nation. We took action to prevent them from allegedly making deceptive claims to consumers when advertising prices for sports and entertainment tickets.
We also successfully reached consent agreements with Avis, Enterprise, Budget, Hertz and Dollar Thrifty. In each of these cases, the Bureau concluded there was false or misleading advertising of prices and discounts on car rentals via websites, mobile apps and emails.
I know the Bureau will continue to address this long-standing issue for consumers who rightfully expect the price they see is the price they will pay.
I also know that the Bureau will continue to take on large IT giants as we did successfully with Amazon Canada, when our investigation put an end to unsubstantiated savings claims. In resolving this case Amazon not only corrected its pricing practices in Canada but also in other jurisdictions.
Finally, in the vein of collaborating to deliver results for consumers, our participation in a class action settlement with Volkswagen related to false and misleading claims about fuel economy, which was recently approved by the courts, will result in significant compensation to consumers. I’m proud to say that we made history through our collaborative work with plaintiffs and defendants on this file.
Advocating for increased competition
Let me take a moment and talk about advocacy.
As everyone in this room knows, reinvigorating the Bureau’s advocacy work has been a central part of the Bureau’s approach over the past five years.
We did this with the understanding that advocacy is a critical part of the Bureau’s mission and an effective tool for increasing competition in the Canadian economy.
Like our other work, we began first with collaboration, reaching out to Canadians to gain insight about which areas of the economy they felt the Bureau could play a role in advocating for increased competition.
We began incrementally increasing our use of advocacy. First, by providing advice that informed the CRTC’s development of the wireless code of conduct. And then, showing we would not be afraid to tackle complex and challenging issues, we began our work around ride-sharing. That started with a submission to the City of Toronto. Then we wrote a white paper, which guided the development of regulations in municipalities across the country.
Since 2013, we’ve participated in over 100 advocacy initiatives and made representations before regulatory bodies on 12 separate occasions.
Our most recent market study, which examined technology-led innovation in the financial services sector (FinTech), continues to inform the development of policy at the federal and provincial levels. In fact, the 2018 federal Budget incorporated a number of the Bureau’s recommendations.
Building on the success of our advocacy and again tying in to the notion of building trust in the digital economy, we will be moving forward with two new advocacy initiatives in the near future.
I am proud to announce today that we are kicking off a market study that will examine consumer habits in purchasing internet services, with the goal of better understanding the competitive dynamics within the Canadian broadband sector. The study will explore whether there are ways to foster more competition in this sector, which could lead to more choices and lower prices for Canadians.
I know that many members of the Bar will be interested in engaging in this study. I would strongly encourage you to reach out to the Bureau through our market study notice, which is being posted online today.
We will also begin an examination of pricing practices in the digital economy that will help us better understand the potential benefits and risks to consumers and competition stemming from these practices. With Canadians spending more online every year, and with the emergence of new and evolving digital pricing techniques, this study will aim to inform and empower consumers, businesses, policymakers and regulators to build trust in the digital economy. The Bureau’s work will begin with a public consultation in the coming weeks.
I believe that our approach to reinvigorating advocacy has been valuable, effective and successful. It has returned the Bureau to its role as a thought leader both within Canada and on the international scene. But our work is by no means finished. We can do so much more to battle public restraints to competition and to increase Canada’s competitiveness. I hope that the CBA will continue to actively engage and to work together with the Bureau to advance these goals.
This takes me to the last of my three big lessons learned, and that’s about how we can keep improving.
I cannot emphasize enough that our successes over the past five years have hinged on the talent, dedication and ingenuity of the Bureau staff. That’s going to keep being the case going forward as the Bureau takes on new challenges.
Among them, there’s the rapid pace of change, the increasing digitalization of the global economy, and the complex enforcement issues that arise as a result. There’s also the rise of populism and the risk of divergent approaches to competition law enforcement across the globe.
All these are important changes. And the Bureau has to be ready to meet each one.
As I see it, these changes fall into four categories:
- agency effectiveness;
- legislative reforms;
- process improvements; and
- repairing an inefficient cartel model.
One of the greatest obstacles to increased agency effectiveness for the Bureau, I believe, is its corporate governance, which chills the Commissioner’s independent voice to promote competition. The restraints in operating a competition agency within an industry department and the challenges this creates for us have been pointed out now by numerous academics, think tanks, past heads of agencies, outside observers and elected officials over the years.
There’s broad international consensus that competition authorities should be independent from the executive branch of government. And that’s matched in support within Canada, too. Our own Competition Policy Review Panel recommended ten years ago the creation of an independent “Canadian Competitiveness Panel”, responsible for the function of competition advocacy.
It stressed this function had no place within federal government bureaucracy, as competition would—and I quote—“become just one of many factors considered” and that the perception of independence (which it considered crucial) would be tainted by housing this within government.
Why is the Bureau’s corporate governance structure and lack of an independent voice important? I’m certainly not suggesting it results in direct political influence on enforcement, but I must say that it does create other stresses. Ones that negatively impact our ability to enforce and advocate. Housed within ISED, the Bureau is one of many priorities; resources are perpetually a challenge, as is our ability to advance policy. Furthermore, we have no direct statutory powers to effectively and freely advocate for competition to governments.
Next, there’s legislative reforms. I talked about this in great detail in a speech I gave two weeks ago at The C.D. Howe Institute. There’s considerable and mounting pressure being exerted across the globe for public interest considerations to be injected into competition law enforcement. In my view, this is reactionary and unwise. For any kind of legislative reform to the Competition Act, it’s critical that a modern, economics-based consumer-welfare standard be maintained.
While concerns related to social issues like inequality and unemployment are important and should be debated, antitrust is not the appropriate tool to remedy these. Competition law is most effective when it is predictable, transparent and a-political. Injecting public interest concerns into competition law prevents it from being as effective as possible.
Yes, there are a number of legislative reforms that I feel are critical to ensuring that the Bureau is sufficiently nimble to address the challenges facing an increasingly global and digital economy. You’ve probably heard enough about my concerns with the efficiencies defence. But there is another reform that needs major attention: the addition of formal market study powers.
For the Bureau to be an effective advocate of competition for Canadian consumers, it needs formal powers to conduct market studies. That includes the power to compel information to conduct the studies.
Canada’s lack of formal market study powers falls below international standards. In a recent survey by the OECD, 68% of the competition agencies had specific powers to undertake market studies. In fact, just a couple of weeks ago, New Zealand took the first steps toward providing its competition authority with formal powers to conduct market studies without the need to identify specific anticompetitive conduct. This includes compulsory information-gathering powers.
Having formal market study powers would allow the Bureau to more robustly study and make recommendations regarding issues that currently cause substantial economic harm to Canadian consumers and businesses.
To meet the pace of change in the digital marketplace and to further our goal of building trust in that marketplace, we must speed up Bureau investigations and Tribunal adjudication processes.
This could take a number of forms including, earlier engagement with targets and merging parties to narrow issues and facilitate early resolution.
The implementation of a formal notification process for targets of certain offences could also expedite resolution as would issuing state of play letters during preliminary stages of complex merger reviews and other inquiries. Indeed, all of these efforts would advance the goal of decreasing timelines, transparency and due process considerations.
Repairing an inefficient cartel model
Simply put, the Bureau’s current cartel model is inefficient.
It ties up Bureau resources and leads to poor outcomes. It needs to be examined and repaired, in keeping with the approach adopted by a number of our international counterparts, like the ACCC, who have employed “dual track” approaches to proceeding against hard-core cartels.
Moving forward with a similar approach would provide the Bureau with much needed flexibility and increased enforcement efficiency by allowing the Bureau to proceed civilly in cases where the cartel conduct is less egregious. In that same vein, we should also be increasing the use of alternative dispute settlement mechanisms to get cases out of the courts, to expede resolutions and reduce the backlog in the courts.
Revising PPSC processes, in my view, also requires consideration. This could include: requiring it to issue guidance, modifying due diligence requirements to speed up guilty pleas for leniency applicants; and reducing the time from marker to plea by imposing a firm one-year time limit from receipt of the marker to the time of registering a guilty plea.
Finally, I firmly support establishing a stand-alone “whistleblower” program, similar to the model employed by the Ontario Securities Commission and some of our international counterparts, which would provide financial rewards to whistleblowers who provide information and meet certain eligibility requirements. This would be an extremely effective enforcement tool for addressing the most egregious and most challenging anti-competitive behaviour to detect.
As I close, I want to commend the extraordinary efforts of my Bureau’s team in the achievement of our goals over the past five years. When you lead an organization, your successes are truly never yours alone but rather belong to the staff who are the foundation of every success and achievement. The Bureau is an organization that is teeming with talented, experienced and dedicated people and, in that respect, is well positioned to tackle the challenges that await.
As for building trust, I would like to refer to the wise words of Bill Kovacic, former FTC chair and international competition law legend. Bill writes: “agency reputations can be likened to brands, and having a well-respected brand is an extremely valuable asset. The development of a strong brand is a slow growth that requires sustained contribution by agency leadership over time”. I would like to leave my career at the Competition Bureau believing we are a trusted brand in Canada – an organization that regularly demonstrated ability, goodwill and integrity – the essence of trust.
I am immensely proud of what we have all accomplished together in my thirty five years at the Bureau. Because ultimately, we have worked to maintain and promote trust that private institutions – your clients – will do right by consumers, and trust that public institutions – like the Bureau – will defend competition to the benefit of Canadians.
I sincerely hope that you and the Bureau will keep working together to continue building antitrust with trust.
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