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CCCA_V6No4_CoverStory-FIN_CCCA 11/26/12 1:35 PM Page 30 Feature essentially a second request power that we’ve never had before, as Q: Early in your term, you said that actively enforcing the well as strengthened penalties for all sorts of conduct, including law would provide clarity and transparency to Canadians abuse of dominance and misrepresentations in advertising. about what constitutes acceptable and unacceptable con- We brought enforcement action in the sense of not just litiga- duct. How successful has active enforcement been in deter- tion, but when we finished our review of a case, if we ascertained ring anti-competitive conduct? a remedy was required, we would seek a consensual resolution with the parties. Parties increasingly came to understand that we had a A: In terms of clarifying the conduct, obviously it’s a process. job to do, and that job could involve litigation; and so, we brought Some of the cases remain in litigation and the bureau looks for- a number of cases — some of which were more high-profile than ward to getting the decisions, but we’ve had several decisions and others — and slowly but surely that sent the right message to busi- the consent agreements that we have entered into have them- nesses and their counsel that if there’s a concern, the bureau has a selves clarified where the bounds are because, obviously, we responsibility and it isn’t going to shy away from it. can’t enter into an agreement that doesn’t sufficiently protect the public interest. So, if you look at the real estate association case, the bureau isn’t going to tolerate anti-competitive restrictions Q: Many landmark cases were brought forth during your that materially or substantially lessen or prevent competition. time as competition commissioner. From your perspective, The bureau is very keenly looking for situations where compe- what impact have these cases had on the way companies go tition is being stifled. about their business now, knowing the bureau is not afraid We also had a successful merger challenge, the first since 2005. It to go after what it sees as improper conduct? was a relatively small merger on the West Coast, but again, it showed that the bureau will bring a case if it thinks there’s a monopoly in A: This touches on both elements of what I hope our active the market that’s going to hurt consumers of that product. enforcement agenda accomplished. One is, we tried to remedy the issue in a particular case in front of us; we don’t pick cases as examples by any means. But, when you do take a case that is Q: Many cases you have helped bring forth are still out- high-profile, you hope that its impact is also broader and that it standing, so some may say that it may be a bit too early to sends a message more generally to the specific industry. Indeed, in determine your legacy. But what would you say your lega- cases like our misleading advertising cases, about hiding dis- cy is as Canada’s competition commissioner? Of what are claimers in fine print, we certainly hope that it extends more you most proud during your tenure? broadly to the business community so that they’re alive to the fact that this kind of behaviour is anti-consumer and not acceptable A: I was incredibly fortunate to come in at a time when we had under the competition laws. Most businesses want to comply the amendments put into force, which gave us an opportunity to with the law, and certainly most counsel are trying to advise their change the game in terms of how the bureau is understood and clients to do so. The difficulty is that, sometimes, it is unknown perceived to do its work — and what the consequences would be where the standards lie, and so, through these cases we hope to if a company or an individual chose to engage in activity that vio- articulate what we understand to be the limits of the legislation. lated the Competition Act. The thing I’m most proud of is that we The other main goal we hoped these cases accomplished was did renew the enforcement agenda. Where we found that there to send a message that says: ‘Look, maybe you knew it was off- was a violation of the law, we were going to resolve it, either side the law but you felt fairly confident that the bureau wasn’t through a consensual remedy that adequately responded to our going to actually call you on it. Well, the new way of doing busi- concerns or, regrettably, but if necessary, we were not going to shy ness at the bureau is well understood — if you flout the compe- away from taking the matter to court. That courage has instilled tition laws and the bureau uncovers that that’s happened, then itself into the culture at the bureau and I’m most proud of the fact there are going to be consequences.’ That’s not only important that together we were able to shift the way that the bureau does for Canadian consumers but for Canadian businesses as well business. because it could be your competitor, or your supplier, or your distributor who has engaged in anti-competitive behaviour; and This interview was edited and condensed for publication. if they’re doing that, that’s hurting you as a company as well. Pablo Fuchs is a freelance writer based in Toronto. 30 CCCA Canadian Corporate Counsel Association WINTER 2012