In a speech at a Canadian Bar Association/International Bar Association conference in Toronto in May, the Canadian Commissioner of Competition, Sheridan Scott, described the Competition Bureau's enforcement and advocacy priorities for 2007-2008. Although broadly consistent with those outlined by the Commissioner in recent years, the Commissioner announced some further specific steps that will be taken to advance the Bureau's objectives.
Regarding mergers and abuse of dominance, the Bureau continues to focus on clarifying the fundamental principles behind its enforcement activities, consistent with its operating principles of transparency and predictability. The Commissioner indicated that the Bureau would issue draft revised Predatory Pricing Guidelines, a draft bulletin on corporate compliance and a bulletin on confidentiality. These publications follow publication by the Bureau over the past year of the Technical Bulletin on Regulated Conduct, the Information Bulletin on Merger Remedies in Canada and the draft Information Bulletin on the Abuse of Dominance Provisions as applied to the Telecommunications Industry.
The Commissioner announced a continued emphasis on using the Bureau's recent increased allocation of resources to its Canadian regional offices to address domestic cartels and bid-rigging. The Bureau's regional enforcement staff have been developing closer links with local law enforcement agencies and working to increase public awareness of criminal conspiracy matters in the regions, resulting in an influx of conspiracy complaints and bid-rigging inquiries.
The Commissioner also emphasized that, while domestic cartels remain the stated priority, the Bureau is in no way signalling a softer stance on international cartel matters and that it will continue its cooperation with foreign antitrust enforcement agencies to target cartels, especially where a difference can be made for Canadians.
The Commissioner addressed mass-marketing fraud, saying that the view that this priority was better left to the police was a "myth", emphasizing that marketing fraud undermines the competitive marketplace in Canada that the Bureau is required to support and encourage. The Commissioner cited with satisfaction the Bureau's recent success at the Ontario Court of Appeal in R v Benlolo (2006), in which the Court affirmed both the appropriateness of jail sentences in certain marketing fraud cases and the need for fines in these cases to be more than a cost of doing business. The Bureau has announced a steady stream of misleading advertising and marketing cases over the past year and its website provides a service for tracking these cases.
Closely linked to the Bureau's efforts to prosecute mass-marketing fraud is its work in cleaning up the electronic marketplace. The Bureau has been ramping up its capacity to detect non-compliant conduct in electronic commerce, especially with a view to identifying fraudulent and misleading representations and unsubstantiated health performance claims. The Commissioner announced that the specialized scanning software the Bureau recently acquired has improved its ability to detect fraudulent misrepresentations on the internet.
The Bureau's competition advocacy priorities for 2007-2008 include a focus on the telecommunications industry. The Commissioner noted that the recent federal Cabinet directive to accelerate market deregulation in the local telecommunications market in Canada is rapidly moving telecommunications from the advocacy side to the enforcement side of the Bureau's mandate. She identified that the Bureau has been given additional resources to deal with competition complaints that arise as the industry adapts, and that the Bureau will intervene if and as required by the market conduct of competitors.
International work is not part of the Bureau's formal priorities statement for 2007-2008, but the Commissioner indicated that, in her view, it represents the third leg of the Bureau's tripod of efforts. The Commissioner identified as important the activities of the International Competition Network (ICN), and in particular its work on unilateral conduct. She also noted the Bureau's continued active participation in a number of OECD committees providing effective guidance to businesses about enforcement standards and unilateral conduct, dynamic efficiencies in merger analysis and post-merger review.
Kim D G Alexander-Cook