At the outset of his term as Section Chair, Dominic Thérien reflects upon recent developments and accomplishments and discusses the exciting year ahead with host Ian Macdonald.
In this Episode, new Section Chair, Dominic Thérien, provides a brief overview of the Section and its committees; reflects on his journey in the Section over two decades; explains the nature and importance of the Section’s interactions with key stakeholders and counterparts, including the Competition Bureau, the Foreign Investment Review and Economic Security Branch, the CBA, the ABA and other bar associations; reflects upon recent developments in the practice area, including multiple rounds of significant amendments to the Competition Act and the Investment Canada Act and related Section accomplishments, including commenting on the proposed amendments before they were passed and commenting on related draft guidelines; and offers his thoughts on what promises to be an exciting year ahead that is expected to include, among other things, more draft guidelines and exciting conferences and other in-person events.
00:30
Ian Macdonald
Hello and welcome to Counterfactual, the podcast produced by the Competition Law and Foreign Investment Review Section of the Canadian Bar Association.
00:39
Ian Macdonald
My name is Ian Macdonald, and in this episode, I'll be speaking with Dominic Thérien, the incoming chair of the section.
00:51
Ian Macdonald
Dominic, hello and welcome to Counterfactual. We're so glad you could join us.
00:54
Dominic Thérien
Thank you, Ian. It's a real pleasure.
00:57
Ian Macdonald
Give us an overview of the section, what it's all about, its committees.
01:00
Dominic Thérien
Thanks, Ian. First of all, I need to say out first, this is really a collective effort. So, I cannot first not mention my great colleagues on the executive committee. So, you know, we have Neil Campbell as past Chair this year, Shuli Rodal, Tony Di Domenico, Cassie Brown, and our new exec member is Charles Tingley.
01:20
Dominic Thérien
So great team. And actually, Charles was a friend of mine at law school. So, it's great to reconnect with him in this in this position. I really see this section as a bottom-up organization. I think big buckets, we serve two functions. We first promote knowledge, in our specialized areas, try to address key developments, participate with our own role, in a constructive manner in the policy, legislative and enforcement debate.
01:49
Dominic Thérien
Through brownbag sessions, in-person sessions such as round tables, and more substantive writing, such as articles in the Canadian Competition Law Review, or CCLR.
02:01
Dominic Thérien
But, to me, second part of the section, it's really a community. So, I think, you know, it's also part of our mandate to bring these, fun in-person experiences and events along the year, where you can just get along with your fellow geek competition and foreign investment colleagues.
02:17
Dominic Thérien
And, you know, I'm based in Montreal and it's great to get these in-person events to connect with people from other regions of the country. You know, briefly, when you look at this section and committees, I think we have in total 65 persons, Ian.
02:33
Dominic Thérien
With official roles, and then you need to add other people. So, you're asking about officially our committees. We have 12 official committees.
02:44
Dominic Thérien
Nine are on the substantive side of things, if you want. So, in addition to the foreign investment review committee, dealing with the ICA, Investment Canada Act, we have eight committees dealing with all areas of competition, Competition Act. So, Competition Litigation Committee, Corporate Counsel, and Compliance.
03:02
Dominic Thérien
And let me just raise here a shout out. Like, if this is one committee where we'd like to see more in-house counsel being involved. Oddly enough, we hear clients saying it's more and more a key strategic, the Competition Act, but when we know our clients are getting more and more informed and realized, but so we're definitely seeking interest for in-house counsel.
03:24
Dominic Thérien
Then we have back on our committees, Criminal Matters Committee, the Economics and Law, the International Committee, the Marketing Practices Committee, Mergers Committee, and Reviewable Matters Committee. And to finish up, Ian, you need then to add the Young Lawyer Committee, very active, and which is a great way to get involved when you start your career.
03:44
Dominic Thérien
As I mentioned, the CCLR, very important publication, and the editorial board. My preferred committee is your podcast committee, the Counterfactual Podcast Committee. You're doing a fantastic role.
03:55
Ian Macdonald
Thank you for that.
03:57
Dominic Thérien
Yeah. And in addition to the committees, then you add chairs of the Fall and Spring Conferences, member of the Bocking Jury Award and a number of initiatives in the Competition Tribunal Liaison Committee, the important Women in Competition Law Network,
04:11
Dominic Thérien
We help with the Adam Fanaki Moot with junior people like being involved in the section as drafting the draft pattern, factum judges, other roles in there. And then we have, you know, this is becoming like a community of friends, as I mentioned.
04:24
Dominic Thérien
And sometimes during the year, we will pull from, let's say, past chair or other people to help. And, I want to mention Navin Joneja and his colleagues that helped last year with putting submissions together for the MEGs consultation phase one.
04:38
Dominic Thérien
Comments that we did at the section. And it's really like a community of these people that really, I consider the section.
04:44
Ian Macdonald
Thanks, it sounds like you've got a lot to manage there as Chair.
04:47
Dominic Thérien
It's a great honor to be this year as Chair with again my colleagues on the exec and realizing how much people, again, this bottom-up organization, you want to continue to thrive. I think our section is known as a very active section within the CBA.
05:01
Dominic Thérien
And my goal, and our goal, at the exec is to ensure we remain relevant, cutting edge with ways to communicate with members of the section, and to continue to be as active as ever.
05:15
Ian Macdonald
That's great. Tell us a little bit about your own journey and evolution within the section and how you ended up in the chair.
05:22
Dominic Thérien
Yeah, well, to me, it was sort of a natural fit because since, you know, my very first days as a competition lawyer, my firm as I would say a very long tradition of being engaged with this section. In fact, don't quote me, but I think that my senior mentor when I started, Yves Bériault, was the one of the founders of the section, of the CBA section.
05:43
Dominic Thérien
And then other of my mentors, including my good friend Madeleine Renaud, was a former chair of the executive committee and other members our firm, such as recently Oliver Borgers. So really, when I started, is really I would go back to the second bucket of what we do, which is getting people together and have fun and meeting your peers.
06:01
Dominic Thérien
I have fond memories of my first fall conferences at the time when I was just starting, at the time at Lac Leamy, if some people listening to the podcast remember. And to me, it was again, because, you know, based in Montréal, outside of the Bay Street crowd, it was great to connect with friends. And then year after year to reconnect with the same people, and sometimes late in the evening, enjoying the in-person fun part of it. And yes, we're still going to the panels and enjoying the content, but really it was just great to be benefiting from the activities.
06:34
Dominic Thérien
Then really, I started to get really involved with the steering or organizing committees of the Fall and Spring Conferences. One really interesting role that I had was back in 2011, when the Canadian Competition Law Review was repatriated with the section.
06:50
Dominic Thérien
It used to be an independent publication. I was part of the first editorial board with Susan Hutton who did so much to bring back the CCLR within the section and on the digital board. I did that for a few years.
07:02
Dominic Thérien
Then I was on the leadership committee of the International Committee, which was great. And I chaired then the Fall Conference and, Ian, I did that during the pandemic year. So that was a bit of a, let's say, a troubled time. You know, when we started thinking about turning the online, to an online edition,
07:22
Dominic Thérien
which was the first one, I think the CBA didn't even have the platform. So, lots of work to organize an online version of the Fall Conference without knowing if anyone would actually show up and listen to that. But at the end of the day, it was great to do that experience.
07:35
Dominic Thérien
And then I got into the exec now five years ago, I guess.
07:39
Ian Macdonald
Well, that's a lot a lot of history there. Thanks.
07:42
Dominic Thérien
Well, again, as I'm telling you, it's a great way to engage with your community and really to get to know your topics and subject when you're younger and your peers and to build your network. And it was a natural part of our fabric at our firm. And it's been a great journey.
07:57
Ian Macdonald
Tell us a little bit about how the Section interacts with other key stakeholders like the Bureau, FIRES, the ABA, and others.
08:06
Dominic Thérien
Well, definitely. And I really think, and this is something we want to continue working on and ensure that if you're talking first about our colleagues at the Competition Bureau and the Foreign Investment Review and Economic Security Branch, or FIRES.
08:20
Dominic Thérien
And did you know that in French, Ian, this is, I think, D-G-E-I-E-S-E, which is even maybe worse than FIRES. All that to say, I mean, it's to me, it's a key part of the section to be able to have this collaboration with our colleagues and friends at the Competition Bureau and FIRES.
08:39
Dominic Thérien
So it's really an idea to keep an open dialogue with these, these representatives. First of all, I went quickly on the committee role, but on each of our committee within the section, there is one representative from either, well, from the Competition Bureau and on FIRC, Foreign Investment Review Committee from FIRES.
09:01
Dominic Thérien
So, they really are part of planning, during the year, with other members of the Leadership Committee, the events, the brown bags, the round table, which is a really important part of also what we can do with the Bureau and FIRC.
09:15
Dominic Thérien
The roundtables, we're trying now to go back, as much as possible, within our budget allocated by the CBA, to an in-person format. We've heard comments and from the Competition Bureau and FIRC that, sorry, FIRES, that, you know, it needs to be more of a reciprocal a dialogue than just a download from them.
09:37
Dominic Thérien
I think it does require lots of time to think and build these events, roundtables. So, we really are looking for a format where both stakeholders benefit from these important roundtable sessions. By the way, stay tuned, because of the spring election,
09:57
Dominic Thérien
We had to postpone some of our traditional roundtables in the fall. And we really are continuing to plan these events, hopefully very shortly in the fall. So, some had to be postponed there.
10:08
Dominic Thérien
And outside from these committee participation roundtables, there's, I would say, an open line of communication between the Section Executive Committee and Bureau management.
10:19
Ian Macdonald
Thanks. In addition to the Bureau and FIRES, do you have other important stakeholders?
10:25
Dominic Thérien
Yeah, thanks Ian. Well, certainly the American Bar Association antitrust section, and our colleagues there are very, you know, they're a key partner.
10:36
Dominic Thérien
We have continuous contact at the executive level between the ABA section and this, our CBA section. We also, still this year, will push our different committees to engage with their counterpart at the committee level of the ABA section.
10:55
Dominic Thérien
And ideally, to promote some joint brown bag that could be marketed on both sides of the border. And, so truly to engage, you know, with the ABA is an important part.
11:06
Dominic Thérien
In terms of other stakeholders, and I want to, you know, mention the PPSC, so the Public Prosecution Service of Canada, which within their limits of how they can engage with us, they do year after year. And that's also, to me, having a practice of criminal matters, this is also an important stakeholder.
11:27
Dominic Thérien
We always appreciate their help. And then within the CBA, let's not forget all of their sections. We work sometimes on joint submissions with other sections.
11:34
Dominic Thérien
We have ideas about, again, joint brown bag with other CBA sections or the provincial branches. And I, you know, also want to mention, Ian, our sponsors.
11:48
Dominic Thérien
So, our key events and in-person events, the conferences, the spring one, fall one, these cannot be accomplished without the sponsors. So, it's really important to keep an eye on sponsorship too.
11:58
Ian Macdonald
Indeed. Thanks for that. Tell us a little bit about the major section accomplishments over the last year.
12:07
Dominic Thérien
You know, what a journey in terms of my time within the executive committee when you think about that, because the three rounds of amendments, right, were during that time. So, we were at the time very busy with participating at, you know, committees before Parliament and Senate.
12:25
Dominic Thérien
Now, to get back to your question, last year was really busy with submissions, basically on Bureau draft guidelines and bulletins on implementing the amendments.
12:36
Dominic Thérien
I think if I get this right in total, we had five substantive submissions by the section last year, which is quite a lot. The main one, I mean, and not to overstate any of these, or understate, but the main one in terms of efforts was really phase one of the MEGs in merger enforcement guidelines consultation by the Bureau.
12:57
Dominic Thérien
This really, as you can imagine, required input from many committees. As I said earlier on, like then we had Navin helping us with some of his colleagues to try to put all of these comments together.
13:09
Dominic Thérien
But I mean, it's let's remember, everyone involved in the section, and we are thankful for everyone's input, is it it's in these are extra hours in addition to our practice.
13:20
Dominic Thérien
And I can tell you that these MEGs phase one submissions and the other submissions really required lots of efforts. So, it was a really busy year just on the, on the submission front. Then I really, Ian, want to, you know, congratulate your Podcast Committee.
13:37
Dominic Thérien
I think we are the only CBA section, I think, with our own dedicated podcast. There is some podcast within the CBA, at the CBA level, but I think we might be the only one at the section level, which is great.
13:53
Dominic Thérien
And then what a job last year, because your kind of two phases of six episodes in the fall and the spring and planning and delivering all of that was fantastic.
14:04
Dominic Thérien
So, a total of 12 episodes, I think it was I can tell you that the exec level is seen as a great success for last year. I would say also, this is just stuff that's been prepared by Neil and last year and other people at the exec.
14:21
Dominic Thérien
But we are in the process of preparing the fifth edition of the Fundamentals of Canadian Competition Law, your don't want to be missed textbook of competition law in Canada. There's not that many.
14:36
Dominic Thérien
And of course, because of the amendments, it was well due to have and a new edition, you know, special thanks to James Musgrove, our editor-in-chief, who again is taking the lead there. But, with so many contributors that I cannot name everyone.
14:46
Dominic Thérien
But this is, I think, another great kind contribution and effort started last year and more to come at this year.
14:56
Ian Macdonald
Sounds almost like a full-time job, wondering when you have time to practice.
15:00
Dominic Thérien
Well, it is it is a fun journey. And again, it's just at my level, it's just making sure that everyone that is doing the real work under at different levels, everyone like works well together.
15:10
Ian Macdonald
And what are the major goals or areas of focus for the coming year? Will it be as busy or equally exciting?
15:19
Dominic Thérien
Both, Ian, and I would say even more fun, hopefully, which is an important part of what we do. But you know, as everyone knows, our landmark event every year is the Fall Conference.
15:31
Dominic Thérien
So, we are quite active preparing that right now. Adam Goodman is our Chair this year. It's a bit later. So, everyone, please mark your calendar. The year is November 20 and 21st.
15:44
Dominic Thérien
Now, if you're asking why, why are we going to Ottawa, which is a great idea later in the fall. When we were planning the dates, we really wanted to make sure and we would avoid any caretaker convention time where our colleagues at the Competition Bureau would not, would not be able to be on panels, which is a great addition, again.
16:03
Dominic Thérien
So, that's it that's why we kind of went to the end time limit of potential fall election, which of course we’re already past us, but the hotel is booked.
16:14
Dominic Thérien
Anyway, so later in the fall this year in Ottawa, we hope to see you all. Name of the conference that Adam came up with: Turbulence, Transformation, and Trade Wars. So, you don't want to miss that. Registration page is already open.
16:27
Dominic Thérien
So please get approval within your firm and mark your calendar and proceed to a registration. I mean, it's the not to be missed event for another good reason. We'll have as typical, and we thank the Commissioner for doing that.
16:43
Dominic Thérien
We'll have the last keynote address by Commissioner Boswell before the end of his term. So, another good reason to join us in Ottawa. And we also have Chief Justice Crampton, who's going to be the speaker for the Thursday dinner, because, and that's a great, we're very glad that Chief Justice Crampton agreed to be with us because he's also retiring.
17:04
Dominic Thérien
So that's going to be a great event. Turning now to submissions, I think it's going to be another very busy year. Again and what a journey to be part of all of these amendments and now guidance by the Bureau.
17:18
Dominic Thérien
So, first, there's going to be phase two of the MEGs, that we expect to be able to contribute during the fall or sometime. So that's going to be also kind of you know asking lots of contribution for a number of committees.
17:32
Dominic Thérien
In addition, we expect that there's going to be guidance by the Competition Bureau under Part VIII. So, abuse of dominance and 90.1. And again having to contribute on guidelines by the Bureau in our capacity on these two pillars of the Competition Act is quite exciting in the same year. So quite a lot of work for everyone the at the committee level and everyone that really gets to be involved or wants to be involved. And I would say, don't hesitate, you know. If you're not part of a committee,
18:00
Dominic Thérien
and this year, going back to the committees, we really tried that everyone that raised their hand and wanted to be part to joining a committee leadership had a role. So, we're adding a new member position in the committees. So, the goal is really to get everyone who's shown an interest in the section to be part of that.
18:16
Dominic Thérien
But my, my comment is that when you see these consultations, if you want to be involved, if you want to take the pen, if you have ideas, please reach out to committees or at the exec level and we'll make sure that you're going to be involved.
18:29
Dominic Thérien
And lastly, in terms of submissions, we are still waiting for potential developments with FIRES on regulations to implement C-34 and the new pre-closing filing regime for certain categories of sensitive investment.
18:43
Dominic Thérien
And again that would be fascinating to be able to contribute when that comes around. Lastly, I would say, Ian, we are always looking to build better ways of communicating and engaging with members.
18:55
Dominic Thérien
So, stay tuned, maybe if you receive some information, but more to come. So, the traditional list serve that we're using to reach members, we're switching, well, the CBA is switching that to a community platform.
19:09
Dominic Thérien
And it's basically a better way to engage, we hope, with members. It's a web platform. You can view past discussions or chats if you want. You can share files. And really, we want this and more to come for everyone.
19:25
Dominic Thérien
But we want this as a momentum to increase engagement with the section members and also to increase membership within the section. We also heard last year at the end of the year; we took the time to get together with committee leadership and hear what we at the executive level can do better.
19:40
Dominic Thérien
And we are now looking as to implementing these changes so that again, we collectively work together to accomplish all of these great, great objectives.
19:49
Ian Macdonald
Thanks, that all sounds good. Are there any other key themes in the practice area that you think warrant touching on?
19:57
Dominic Thérien
Well, I mean, again, like at the section level, I mean, what the future will bring on our table is a bit outside of our, maybe, you know, control.
20:11
Dominic Thérien
We're looking for committee's input, but so I don't want to put any committee's ideas, but I mean, we're basically subject, Ian, to commenting on the developments of the Investment Canada Act and Competition Act with respect to outside events, if you want. So, of course, the amendments I've discussed quite a lot, but on the ICA front, I mean, what the next year will come, will bring in terms of adjustment and changes and how it's being implemented, economic security being like more than ever present in that field.
20:44
Dominic Thérien
I think, you know, the FIRC committee, I'm sure will be coming up with great ideas of brown bag and other ways to provide insightful comments on that. I think the bigger debate on the amendments is to make sure there's a proper alignment.
21:00
Dominic Thérien
And we still want the economy, the Canadian economy, to be efficient. Not sure we want to have a review process for transactions that is too burdensome, too costly, takes too long. So again, we'll be looking forward to contribute to the Bureau submissions or consultation there.
21:20
Dominic Thérien
There's quite a lot of questions I'm sure you have, Ian, from your clients on advertise misleading advertisement and environmental claims or greenwashing.
21:31
Dominic Thérien
You know, so again, I think our committee and activities this year is likely to continue because we've been engaged in that stream. But on the right balance between avoiding greenwashing or disincentive for Canadian, Canadian businesses to invest environmental innovation and being able to make these claims. It's an interesting debate with you know influences from the South.
21:59
Dominic Thérien
And last point I would say is the whole fascinating developments with technology and AI. So where is that going to be landing? First of all, in terms of, of course, the viewers now looking into algorithmic pricing.
22:13
Dominic Thérien
But also in our practice, you know, how will that impact how we do the work? And how does that impact how we communicate with members of the section? So, I think that we want to continue to look at the technology and IA developments and how it impacts us.
22:33
Ian Macdonald
Thanks, you're absolutely right on those themes. And in fact, some of our previous podcasts are on are on some of those topics, two in fact on greenwashing alone. So, I guess one final question for you, and you've touched on this, but I just want to focus on it is, any advice for junior, younger lawyers on how they can contribute to get involved and benefit from the section in particular?
22:57
Dominic Thérien
Yeah, you know, guess what? I'm slightly biased here, but what a more interesting field of law than competition can you find out there?
23:09
Dominic Thérien
You know, it's again, there is this mix of, of course, corporate law and litigation. So, the whole development I didn't mention, sorry, I should have, private access right before the Competition Tribunal.
23:21
Dominic Thérien
Now Parliament has spoken, but how will this be developing in Canada? I mean, this is something really to watch out and our, you know, maybe some can think, yeah, you have a Competition Litigation Committee, but you are much heavier on the merger stuff
23:37
Dominic Thérien
or transactional aspect of things, you know. In in a year, two years, five years from now, will it be like kind of equally balanced between generally speaking, and I don't want to understate the entire class action as important part of our section and of our practice, but the whole litigation sphere, like is just it's a question mark to see whether it's going to be changing or not.
23:59
Dominic Thérien
And to go back to your point, like you could be like a young lawyer doing corporate stuff or litigation background. And I think this is our area of law is interesting. How to get involved? Again, there's, I've mentioned, but our Young Lawyer Committee, you know, they are fantastic. They do lots of activities, a symposium every year.
24:19
Dominic Thérien
That's certainly the Young Lawyer Committee, like a great way to get involved in. And stay tuned. And by the way, the one thing to do did in this kind of end of summer or back to work time, I would invite everyone to really have a look at which list serve or community you are part of to make sure you get all communications.
24:40
Dominic Thérien
But yeah, the Young Lawyer Committee is a great way to start. Please participate in the in the events. But then really raise your hand. I mean, all of the committees’ leadership information is on the Bureau website and you can reach out to any of the of the committees at any time.
24:56
Dominic Thérien
Again, I was first involved like at the conference level before being engaged on an official committee, but we are always looking for some efforts including with the important Adam Fanaki moot that our friends at the Competition Bureau are doing.
25:12
Dominic Thérien
We're looking for volunteers every year for to help with the factum judge and other implication there. So, there are many, many ways, and I would say just don't wait. You can certainly go to your, this is what I did when I was younger, you go to your senior or the people you to work with at your firm, and if you have the chance to have someone involved in the section.
25:33
Dominic Thérien
But if you and you also, going back to my comment about in-house counsel, if you're working in an in-house environment, you can reach out to anyone that is listed publicly
25:45
Dominic Thérien
in CBA section website. And we'll be trying to get involvement from all the young lawyers in the country that want to be involved. You know, being based here in Montreal, I think the section we want to really engage with diversity of voices at every level, including from a regional perspective, which is dear to my heart.
26:09
Dominic Thérien
So don't be shy. You know, I know it's less obvious if you are maybe outside of the Toronto hub of where we have a good concentration of competition lawyers, but I'm sure you can find people like in all areas of Canada and more and more and that are engaged in this section and we want to continue that trend.
26:24
Ian Macdonald
Well, Dominic, thank you so much. We could go on for hours exploring these topics more deeply, but I think we've taken up enough of your time. And on behalf of Counterfactual, I would just like to thank you for spending some time with us.
26:39
Dominic Thérien
Thanks, Ian. And again, congrats on your podcast. And we look forward for another great year at this Section.