GOVERNMENT OPENS THE DOOR FOR BROAD REFORMS OF COMPETITION AND FOREIGN INVESTMENT LAW
While the new Liberal government did not identify Competition Act reform as a key legislative goal during the Governor General’s Throne Speech at the official opening of Parliament in November 2021, the mandate letter released to the Minister of Innovation, Science and Industry in December 2021 set a more assertive tone than mandates in recent years, especially in respect of competition law and foreign investment regulation. Broadly consistent with recent messaging from the Commissioner and INDU, the Prime Minister’s instructions are the strongest endorsement yet from the government regarding antitrust reform and the bolstered use of national security reviews under the Investment Canada Act. The Prime Minister has instructed the Minister to undertake a broad review of the Competition Act in order to identify any areas of the regime in need of modernization, which will likely involve assessing the extent to which the Bureau has the proper tools to review and address anticompetitive conduct in the increasingly digitalized economy.
With respect to the Investment Canada Act, the mandate letter strikes a decidedly protectionist tone, calling for the review of the Investment Canada Act to strengthen the national security review process and better identify and mitigate economic security threats from foreign investment.
The Prime Minister has instructed the Minister to undertake a broad review of the Competition Act in order to identify any areas of the regime in need of modernization, which will likely involve assessing the extent to which the Bureau has the proper tools to review and address anticompetitive conduct in the increasingly digitalized economy.
Accordingly, there is growing traction and political sponsorship in Canada to — at the very least — undertake a substantive review of the Competition Act. Many stakeholders and commentators discuss the potential for reform by comparing the Canadian regime with the competition laws of other countries, particularly the United States, U.K. and European Union. While international comparisons are inevitable, any wholesale reform of the Canadian regime must be carried out carefully, to avoid unintended consequences and ensure that any amendments work to advance Canadian policy objectives and economic interests.
Moreover, the Bureau will deploy significantly increased financial resources over the next five years to enforce the Competition Act and drive its enforcement priorities. The question remains whether the Bureau already has sufficient legislative tools in its armoury to fulfil its mandate, but has until now been underfunded; or whether there is a genuine substantive “gap” in the Competition Act that merits rectification.