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Competition Act Reforms Must Be Evidence-Based And Homegrown – Only The Start Of The Conversation: C.D. Howe Institute Competition Policy Council

March 30, 2023 – Reforms to Canada’s Competition Act must be evidence-based and homegrown, and are only the start of the conversation on promoting Canada’s competitiveness, according to a new Communiqué from the C.D. Howe Institute Competition Policy Council.

Released in response to the federal government’s discussion paper on reforms to the Competition Act, the Council’s 24th Communiqué emphasizes the need for caution before departing from established Canadian law and process – urging the government to rely on evidence demonstrating the need for change, instead of mimicking developments in competition law and policy in foreign jurisdictions that are still untested.

Referencing how the EU Digital Markets Act will not fully come into force until 2024 and how legislative amendments have yet to be passed in the US, the Council explained that there is still no consensus on the benefits of the reforms introduced or proposed. Instead, Canada has the opportunity to learn from experiences in these foreign jurisdictions.

As well, the Council came to the consensus that the conversation on competition must be broader than the Competition Act itself. For instance, some of the issues raised in the government’s discussion paper are items that the government cannot remedy by amendments to the Competition Act.

“The consensus of the C.D. Howe Institute’s Competition Policy Council is that, beyond the consultation paper, more work and further consultation on specific proposals for reform to the Competition Act will ensure the government’s intention of promoting a competitive marketplace that favours prosperity and affordability for Canadians is properly reflected in legislation,” according to the Communiqué. “Moreover, the consultation is only one step in a broader discussion on the future competition policy in Canada, which should also look at other laws and policies that impact Canada’s competitiveness such as supply management, and limits to foreign ownership in sectors, such as telecommunications and aviation.”

Introducing bright line tests or prescribed ex ante rules for a small number of firms in certain sectors of the economy would increase regulation and turn the Competition Bureau into a sector specific regulator – a role that is not suited to Canadian competition law, according to the Council.

Overall, the government must continue to consult publicly in a timely fashion on the specific details of the proposed changes to the Competition Act, including draft legislation, according to the Communiqué. “The details of legislative reform are essential to their effectiveness, and a process that again fails to invite comment on specifics would be an unnecessary mistake.”

The 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 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. The Council, whose members participate in their personal capacities, convenes a neutral forum to test competing visions and to share views on competition policy with practitioners, policymakers, and the public.

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