At the outset of her term as Section Chair, Shuli Rodal reflects upon recent developments and accomplishments and discusses the exciting year ahead with host Ian Macdonald. Section Podcast Committee Chair, Julia Potter, and Annual Fall Conference Chair, Kate McNeece, make a brief cameo appearance at the beginning of the Episode to promote the upcoming Annual Fall Conference.
In this Episode, new Section Chair, Shuli Rodal, provides a brief overview of the Section and its committees; reflects on her 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; and offers her thoughts on what promises to be an exciting year ahead. As an added bonus, Podcast Committee Chair, Julia Potter and Annual Fall Conference Chair, Kate McNeece preview what promises to be an exciting Annual Fall Conference on October 14-16.
00:28
Julia Potter
Hi everyone, this is Julia, the new chair of the Podcast Committee. We're excited to bring you a new season of Counterfactual. But before diving in today's episode featuring CBA Chair Shuli Rodal, we wanted to remind our listeners of the CBA's upcoming fall conference. I'm here with a familiar voice to podcast listeners, conference chair Kate McNeece.
00:48
Kate McNeece
Hi, Julia. Thanks for having me. It's so fun to be on this side of the microphone.
00:54
Julia Potter
Yeah, so we have a few questions for you, Kate. So when is the conference?
00:56
Kate McNeece
So the conference runs October 15th and 16th at the Fairmont Chateau Laurier in Ottawa. But of course, we have our counterfactual live event the night before, October 14th at the Blakes office in Ottawa. So if you haven't planned your travel, please make sure you get into Ottawa in time to attend.
01:15
Julia Potter
yeah Absolutely. We'll have food and cocktails and a live guest that you'll love to hear from.
01:20
Kate McNeece
Yeah, it's always a great evening.
01:22
Julia Potter
So Kate, can you tell us a bit about what we can expect from the agenda of the conference?
01:26
Kate McNeece
Well, as our listeners all know, it is a very interesting time, geopolitically and otherwise, to be a Canadian. So our theme this year is competition and foreign investment law for a resilient Canada, which speaks to that uncertainty.
01:42
Kate McNeece
I think our plenary sessions will do a great job of exploring that theme of how competition law and foreign investment law can support Canadian resilience in this new world order. So our opening plenary will look at these issues through a lens of how competition law can support innovation and productivity. Our closing plenary on Thursday will deep dive into the Investment Canada Act, both net benefit and national security provisions and think about how foreign investment law should or should not be adapted to balance the need for foreign capital against Canadian sovereign interests. And then our final panel on Friday, our final plenary, will focus on competition and foreign investment issues with respect to infrastructure. which of course is a hot and timely topic given the recent investment summit and new government policies like the mega deduction that are intended to stimulate infrastructure investment in Canada.
02:33
Kate McNeece
And then, of course, you know, we've got panels throughout the event on mergers, litigation, criminal matters, and a host of other timely and important issues for anyone who's interested in competition law in Canada. So, I think it'll be a great event. I think it'll be great for practitioners, for in-house counsel, for really anyone who's interested in some of these broader issues impacting our business and economy. There's certainly lots to discuss.
02:58
Julia Potter
Yeah, it sounds fantastic. I’m excited for the topical nature of a lot of these topics. And what else can people look forward to at the conference?
03:06
Kate McNeece
Well, we've got some great programming other than the substantive agenda. The conference dinner this year on Thursday night is at a new venue, the Ottawa Art Gallery, and we'll have the ability for guests to wander around and see some of the exhibits there, which I'm personally really looking forward to. The young lawyers are also having in a social event on the Thursday night. And then to close out the conference, we will have our annual Women in Competition Law Lunch, which as a reminder, it is open to all. And of course. the live podcast on Wednesday.
03:36
Julia Potter
Yes, of course, the live podcast on Wednesday. Yeah, so thank you so much for that preview, Kate. So again, for our listeners, the conference is October 15 to 16. You can register on the CBA website, and the link will be in the show notes for this episode.
03:51
Julia Potter
So thanks for coming on Kate and giving us that preview.
03:54
Kate McNeece
Yeah, thank you for having me.
03:56
Julia Potter
And of course, for our listeners, the hosts, the members of the podcast committee will also be at the conference, so do find us there. And we're always eager to hear any ideas for new episodes and just talk to our listeners. So do come and find us there.
04:12
Ian Macdonald
Shuli, Hello and welcome to Counterfactual. We're so glad you could join us.
04:17
Shuli Rodal
Well, thank you very much for having me. Happy to be here.
04:20
Ian Macdonald
Please give us an overview of the section - what it's all about, its committees.
04:24
Shuli Rodal
Sure. So, the section is one of the sections of the Canadian Bar Association. and we are responsible for competition law and foreign investment. We are a very active section, you know, one of the most active, I think, within the CBA, and that has been the case since I started participating in the section from the very beginning of my career in the area, and at Osler, where I practice. So the section probably involves a majority, if not most, of the people who practice in this area and I think we are unique in that respect.
05:06
Shuli Rodal
The way the section is structured very much involves all of those who participate. So, there is the executive, and that is really a collaborative group of six people. I am now in my fifth year of that and I’ve kind of rolled through the different positions, so you know, together with Dominic Thérien, who's the past chair, Antonio DiDomenico, Cassandra Brown, Charles Tingley, and Adam Goodman we now represent the executive of the section. And we are responsible really for coordinating and overseeing the activities of the section, which really wouldn't be possible without the committees, which is really where a lot of the activities are planned and coordinated.
05:58
Shuli Rodal
And though the leadership of those committees are spread across the members of the section with people from across Canada, representatives of corporate counsel, and on each committee a representative of the Competition Bureau, or in the case of the foreign investment review section, I said, participating there.
06:22
Shuli Rodal
And those committees are responsible for a wide range of things, engagement with members, planning and writing submissions on policy developments, proposed amendments, and other major activities that are ongoing. Planning brown bags, hosting brown bags which regularly occur throughout the year. Organizing roundtables with their counterparts in governmental entities and a wide range of other things.
06:59
Shuli Rodal
So, our committees are really the hub of where things are ongoing. In addition to the committees, we have our marquee events, which are the two main conferences. There's the fall conference that occurs in October, so somewhere between late September and November every year, and that usually takes place in Ottawa it's a great event. If you haven't registered for our upcoming conference, on October 15th, 16th in Ottawa. I encourage you to do that. Kate McNeece, who's our chair this year, has put on a terrific program, or is getting ready to put on a terrific program on competition and foreign investment for a resilient Canada. So, lots of great discussions planned there on a lot of really current and very interesting topics. And then we have our spring conference which will be take place in May this year in Toronto, as well as additional events that occur throughout the year.
08:03
Shuli Rodal
A key one that I'm really excited about and is sort of growing in size and attendance is our young lawyers symposium, which is terrific to have that engagement from the youngest members of the bar. So we have, in terms of the committees covering kind of all of our subject matter, we have 12 formal committees, which range from you know dealing with subjects such as mergers, unilateral conduct, competition, litigation, criminal and that type of thing. As well as more innovative committees like the podcast committee which is was a terrific addition I think to the section and has really elevated the level of, you know, discussion, and the speed with which we can put together really rich content and disseminate that. So that's been a great addition.
08:56
Shuli Rodal
We also have CCLR, the Canadian Competition Law Review, which is a terrific publication of scholarly articles, which you know has been a really important part of the section for a long time. And then it's kind of ad hoc activities that occur at different times of the year. We have, you know, the Bocking Award that's presented at the Fall Conference to a student who has written what's determined by the jury to be the best paper. So we have jury members who participate in that in the year. There really is no time of the year except for maybe August when there isn't a lot of activity going on in the section, so you know really a terrific collaborative effort of a huge group of people to keep the content going.
09:48
Ian Macdonald
Thanks. It sounds like you've got a lot to manage as chair.
09:52
Shuli Rodal
Well, it certainly isn't just me. So as I say, you know there's the executive, you know we collaborate. with the Competition Bureau, with ICED. There's the terrific members of the Canadian Bar Association itself, who really we couldn't do this without. And then all of the members of the section, of course, who actively participate and are, you know, really engaged in putting on good programs, being part of the policy discussion, engaging with our governmental counterparts. So really is a collective effort, for certain.
10:25
Ian Macdonald
That's great. Please tell us a little bit about your own journey and evolution in the section and how you ended up as chair.
10:32
Shuli Rodal
Sure. Well, as I mentioned I've been involved in the CBA since my very early years. I can't recall if it was, you know, the first or second year that I was practicing that the chair of our group, who some people may I remember working with, Tim Kennish, was the chair of the section and he had me helping out now and then, I think largely in an administrative capacity, but I really learned a lot from helping him in his role as chair of the section, and I think that was my introduction to it.
11:04
Shuli Rodal
But from the very beginning, I attended conferences, I participated in the organizing committee for the conferences, which was something that, you know, it was a great way for young people to participate in the conference. We didn't actually have a young lawyers committee when I first started, so I think that's a great initiative that we have that now as a kind of formal way for young people to participate.
11:30
Shuli Rodal
But, you know, I actively participated in helping to write comments on various things, you know, when you know, amendments were proposed. I put my hand up to participate, you know, to be part of the action and that sort of gradually led to being in a position to put my name forward for leadership of one of the committees.
11:55
Shuli Rodal
So I started, I believe, on the legislation and policy committee which I think no longer exists since it was sort of duplicative of the roles of the subject matter committees who are commenting on you know, proposed legislation and other things.
12:12
Shuli Rodal
And then after that I chaired the unilateral committee, and went through the leadership of that committee, I went through the leadership of the mergers committee which was really interesting. And on both of those committees, we organized annual roundtables with the Competition Bureau, which I think was a great experience, and, you know, putting together an event collaborating with the Bureau on, you know, what topics we were going to cover. And then from there, I am participated in the fall conference as chair, I think quite a few years ago in 2017 I believe.
12:51
Shuli Rodal
And then from there I put myself forward to participate on the executive, you know, having seen the activities of the section from a variety of different perspectives and it's been, I think, a really rewarding experience to you know see from, you know, kind of an umbrella perspective, what is going on all of the different committees, to look at the submissions that we're drafting, to think about where there's opportunity for greater engagement, what activities we could expand.
13:30
Shuli Rodal
So I think it's been, alongside of course my practice, which we also have to spend our time on, has been a really valuable experience as someone who's had my whole career practicing in this area.
13:44
Ian Macdonald
I was going to say, when do you find time to attend to your practice?
13:47
Shuli Rodal
Well, you know, I think I asked myself that question about many of the members of our section who I see, you know, spending huge amounts of time writing commentaries, writing articles. Like I think we really are a section that is very much engaged on the policy issues. It's not just part of our practice and I think we probably entered this practice area because we have a genuine interest um in these areas as Canadians, you know, so it is worth it to participate in the policy discussion alongside our representation of clients in this area.
14:26
Ian Macdonald
Speaking of engagement, tell us a little bit about how the session interacts with key stakeholders like the Bureau, FIRES, the ABA, and others.
14:37
Shuli Rodal
Yeah, I think that is one of the greatest things about the CBA section, is the opportunity, in so many different ways, to engage with our counterparts in governmental agencies and departments.
14:53
Shuli Rodal
So, you know, as each of our committees has a representative, either from the Competition Bureau, or from ISED in the case of the foreign investment and review committee, so they participate in the brown bags that we organize, often they will put forward speakers for that.
15:13
Shuli Rodal
We jointly organize the round tables which are kind of the formal annual engagement between the Bureau or Heritage or ISED on our particular subjects.
15:31
Shuli Rodal
And, you know, those are very well attended events but they're formally organized through our CBA section, which is a great way of bringing together the members on the private side of the bar and the Bureau, ISED, and the cultural sector investment review, and Canadian Heritage, who participates in that roundtable.
15:51
Shuli Rodal
Our engagement through the CBA, and our collaboration, is a way in which we find great speakers for our conferences. So the Competition Bureau is terrific in helping to identify the right people, both from the Bureau, other parts of government, sometimes foreign enforcement agencies, to help put a really rich discussion together.
16:18
Shuli Rodal
The CBA section is also a forum through which the members of the bar put forward Comments to the Competition Bureau, to ISED, to Heritage on policy developments, amendments to the legislation.
16:36
Shuli Rodal
So, you know, sometimes we'll have individual firms put forward their own commentary, but more often it is through the Canadian Bar Association where we collectively put forward the views of, you know, and the commentary that we're hearing across the business community and members of the bar to put forward a collective position that is not necessarily always reflecting total agreement, but just bringing together all of the views that are out there and provide those to the government to help develop the legislation, make appropriate changes, you know, to understand at least the perspective of those who the legislation will impact.
17:25
Shuli Rodal
So that's another great way in which we can um engage with the government through the CBA.
17:32
Ian Macdonald
Interesting. Tell us a little bit about the major section accomplishments over the last year.
17:38
Shuli Rodal
Well, I mean, this has been a time of ongoing amendments, I would say, to the legislation that impacts us.
17:46
Shuli Rodal
So, on the Competition Act side, the amendments I think had already taken effect before the beginning of the last section year, but the guidance documents were not yet out. So that was a big activity of the section, we commented on the Bureau's communications on draft MEGs, on the ACCA guidelines. I mean, those are very material pieces of guidance that I think we would probably will have continued engagement on in the coming year.
18:24
Shuli Rodal
We had great conferences in the past year, terrific number of podcast episodes, as you well know, a lot of very interesting brown bags and other discussions. So I think a lot to be proud of, I think Dominic, as chair, has sort of led us through some, you know, heavy workload periods, but I think we all came through that and I think made some really useful recommendations to the government in terms of how to, you know, carry forward the amendments to the Competition Act into practice.
19:03
Ian Macdonald
What are the major goals or areas of focus for the coming year? Will it be equally busy and exciting?
19:10
Shuli Rodal
Well, so I think we have a lot to look forward to this year. I mean, we are at a very important time. in terms of the role of competition and foreign investment law in our economy and for the country as a whole. We are seeing, you know, a huge priority placed on attracting investment to Canada but also ensuring that our internal markets are competitive and that consumers are benefiting from competition at a time of inflation and when the cost of living is a concern.
19:47
Shuli Rodal
And we are also very focused on what makes our domestic economy strong that is built from within and how we promote that and safeguard that is also a policy concern, so these are very interesting key themes all being viewed as very important at the same time. And so a very interesting time for our practice area. I think we are, I mean, we have been and continue to be waiting for the regulations to bring into effect the ICA pre-closing filing regime that will be applicable to prescribed sectors.
20:25
Shuli Rodal
We heard that that was coming this summer. I think it's been a bit delayed, perhaps understandably, with all of the things the government has on their agenda. But I think it's coming and, you know, we, I think, anticipate it'll come over the next year and that will be a big change for us practicing in this area as well as for foreign investors.
20:49
Shuli Rodal
I don't think it will necessarily change what can be scrutinized, but it will change what needs to be reported, it will change transaction timing. And you know we'll have then an impact, a material impact, on how deals are done.
21:06
Shuli Rodal
I think we can all remember how long it took for the enterprise value regulations to take effect, but they eventually did and it did had a material impact on practice in the area. So that will be something definitely to watch. And then, you know, what happens with guidance in, you know, the key areas on the competition side.
21:27
Shuli Rodal
So we now have the new criminal guidelines that comments are in progress, so that is a big development, but we will be looking forward to seeing further comments from the Bureau, further guidance on the MEGs, the approach, especially in light of the presumptions and the way those are impacting the Bureau's practices.
21:49
Shuli Rodal
As well as, you know, what has happened to the ACCA guidelines and what we're going to see as a revised version of those. And of course, we're all watching developments on the competition litigation front. I mean, there were material changes to the Competition Act there, you know, increasing the role for private parties to bring their own cases with, you know, incentives to do so.
22:17
Shuli Rodal
And as a result of that, I think we're going to have some jurisprudence, you know, that will weigh in on some of the things that have we've had, I think probably pretty sparse input on from the judiciary, so the Competition Tribunal, I think, has a number of cases before it, so we're looking forward to developments in that area.
22:40
Ian Macdonald
Any other collaborations that you'd like to talk about?
22:44
Shuli Rodal
Yeah, sure. A few that come to mind, of course. The CBA section is a great opportunity for us to collaborate and engage with our counterparts in the ABA section. So, that's something that our committees do regularly and we do through liaison with the ABA.
23:04
Shuli Rodal
And, of course, another terrific thing, and I think you asked me a question about opportunities for engagement with the Bureau, I would say one of the great experiences we have annually is the Adam Fanaki Moot, which is put on by the Bureau and I think really is a highlight of collaboration between the private bar and the Bureau.
23:25
Shuli Rodal
It's a terrific event, a great opportunity for law students across Canada to show their skills in front of real judges and some people pretending to be judges who are members of the private bar, but really it's a terrific event. It's seamlessly put on by the Bureau in a terrific way in which we do collaborate every year.
23:48
Thanks. I've been planning to do a podcast episode on the mandatory ICA pre-filing regulations for several podcast seasons now, and I remain optimistic that I will get to do that episode before the end of my term.
24:06
Shuli Rodal
Well, we'll bring you back as a guest star if you want, if you're still practicing then.
24:13
Ian Macdonald
Thank you. Any other key themes in the practice area that you think warrant touching on?
24:21
Shuli Rodal
Well I would say, just in terms of speaking to members of the bar who may be wondering how they can get involved, I guess the first thing that I would say is everyone should sign up for the CBA communities because I fear that there are people who are not receiving communications regarding our programming, upcoming events, because they haven't signed up for that.
24:45
Shuli Rodal
So there will be a blast message going out from the CBA with instructions on how to do that. So I would say, you know, first of all sign up and then get involved. I mean there are, you know, contact the leadership of committees that you're interested in participating in. People are always looking for volunteers to help organize events, brown bags, and to contribute to policy discussions.
25:16
Shuli Rodal
So I really encourage everyone to get involved. I think it's going to be a really exciting year in our practice area with a lot of interesting developments and, you know, young members of the bar can really learn a tremendous amount just from participating through the CBA.
25:31
Ian Macdonald
I was going to actually tie those two things together, getting involved and young lawyers that you've spoken of at various points throughout this. Any particular or specific advice to young lawyers about how they get involved?
25:42
Shuli Rodal
Yeah, I mean, it's such an interesting practice area. I think all lawyers would say that their practice area is extremely interesting and relevant to the issues of the day, but I think ours is in a way that is a little bit unique.
25:57
Shuli Rodal
So I would say to young lawyers, think of yourself as an active participant in the policy discussion, in the developments in this area. we are not just lawyers doing our work. We are really participants in developments and, you know, bringing forward positive developments in this practice area, engagement with the government, and really understanding the issues of the day and taking those on board in your practice.
26:33
Ian Macdonald
Well, Shuli, thank you so much. We could probably go on for hours discussing these topics, but I think we've probably taken up enough of your time. So, on behalf of Counterfactual, I would just like to thank you for spending some time with us.
26:48
Shuli Rodal
Thank you for having me. It's a pleasure.