Opinion: Competition Act Amendments: First Add Oversight and Accountability

April 12, 2022

Competition law – traditionally the domain of lawyers, economists and bureaucrats – has in recent years caught the attention of elected officials, media and the general public in many countries.

In Canada, calls for amendments to the Competition Act grew in early 2021 and increased last fall when Senator Howard Wetston invited submissions on the need, or not, to amend the act in the digital era.

Meanwhile, Innovation, Science and Industry Minister François-Philippe Champagne’s mandate letter late last year directed that the minister undertake a broad review of the current legislative and structural elements that may restrict or hinder competition and review the mandate of the Commissioner of Competition.

Over the past year and more, a wide range of commentators, including academics, lawyers, think-tanks, politicians, and the Competition Bureau itself  have shared their views on potential changes to the act. And that process continues.

Recommendations have ranged from a complete overhaul of the legislation to endorsements of the status quo. A few have gone so far as to suggest that broader social policy objectives could be rolled into the basket of issues that the Bureau should address in its day-to-day work.

Most people with knowledge of the Act, its objectives and its history, who understand the issues and risks of missteps, have largely coalesced around two points: First, ensuring the legislation’s focus remains squarely on achieving economic efficiency; and, second, this area is complex with a high risk of unintended consequences. This means any amendments, even those proffered as “minor” or merely “clarifications,” need thorough and non-precipitous in-depth analysis.

Notably absent from reform discussions, despite the ministerial mandate to review the role of the Commissioner of Competition, is a serious unaddressed legislative gap: The absence of oversight, accountability, and transparency of the use of resources provided to the Commissioner.