Former Competition Commissioners Lawson Hunter and George Addy join host Charles Tingley for the inaugural episode of the Counterfactual Podcast.
In our inaugural episode, Counterfactual host Charles Tingley invites former Competition Commissioners, Lawson Hunter and George Addy, to discuss the current competition policy landscape in Canada and potential amendments to Canada’s Competition Act…as well as their favourite places to visit and their ‘alternate universe’ career ambitions.
Welcome to Counterfactual, the podcast brought to you by the Competition Law and Foreign Investment Review section of the Canadian Bar Association. Counterfactual takes a fresh look at issues relevant to business competition and related areas of regulation, and explores the real and hypothetical worlds to gain practical insights and debate policy. Hope you enjoy the show.
Hello, and welcome to the counterfactual podcast. My name is Charles Tingley. And in this episode I'll be speaking with two former heads of the Canadian Competition Bureau, Lawson Hunter and George Addy, to get their take on the state of Canadian competition policy and potential reforms to the Canadian Competition Act. Before we begin, just a few words of introduction about our guests. Lawson was appointed head of the Competition Bureau in 1981 and was instrumental in drafting the modern federal Competition Act introduced in 1986. Lawson spent many years in private practice heading the Competition Law Group at Stikeman Elliott, where he continues to practice as Senior Counsel. Lawson also has extensive experience in the business world. From 2003 to 2008, he served as executive vice president and chief corporate officer of Bell Canada and BCE Inc, where he was responsible for overseeing regulatory governmental relations and corporate affairs. Lawson was recently awarded the Order of Canada for his distinguished career in government, business and private practice as one of the country's leading competition antitrust lawyers. George Addy was head of the Competition Bureau from 1993 to 1996, and led its merger review branch from 1989 to 1993. Prior to joining the Bureau, George was a partner at Gowlings, where he focused on complex commercial litigation, public inquiries like the Estey inquiry, and competition matters. For example, as counsel for the Competition Bureau, on the four year restrictive Trade Practices Commission hearings on the state of competition in the petroleum industry. George too has significant business experience. Following his time in government, George was Executive Vice President and Chief General Counsel at another major telecom firm, TELUS, where he was responsible for all head office functions, and other IT and finance, and was a key player in taking TELUS national and its merger with BCTel. After his time at TELUS, George returned to private practice and has been at Davies for the last 20 years, where he has led the firm's competition group and continues to practice as Senior Counsel. George also continues to contribute to Canada's business community, including as a board member of Invest in Canada, Canada's Global Investment Attraction and Promotion Agency. Gentlemen, welcome to Counterfactual. It's great to have you on the podcast.
Great to be here.
So just to get a little perspective before we begin, it seems like today more than at any other time in recent memory, Competition law has become relatively front of mind in the public consciousness. That probably has a lot to do with the rise of popular digital platform products and and concerns with the political and economic impact of those. Competition law and policy is in the media it seems constantly and significant changes to competition enforcement policies and substantive legislative proposals are being considered in a number of jurisdictions, including, most notably, Europe and the US. Here in Canada, we've had a sort of unofficial public consultation on potential competition law reform under the auspices of Senator Howard Weston's call for comments on a discussion paper penned by Professor Ed Iaccobucci. For its part, the Competition Bureau has put at stake in the ground by submitting detailed proposals for legislative reform to facilitate its enforcement role in the digital economy. These proposals are detailed and wide ranging and include changing legal tests, broadening the scope of civil and criminal provisions, increasing penalties and enhancing information gathering powers. And of course, more recently, the federal government announced its Budget Implementation Bill, which contains among a myriad of other legislative proposals, significant amendments to the Competition Act, which are not likely to be subjected to significant debate before being passed in the relatively near future. Some of the significant proposed amendments in the bill include expanding the scope of the abuse of dominance provisions and the consequences for breaching them (i.e. higher monetary penalties and private actions), and criminalizing wage fixing and no poach agreements between employers. And there's probably yet more to come if and when Parliament actually begins a second phase of potential competition law reforms that may explore things like Canada's efficiencies defense to anti-competitive mergers, and whether the purposes of the Competition Act should be expanded to account for a variety of social and policy objectives that are not focused on economic efficiency or consumer welfare standards. So there's a fair bit to unpack here. But before we get too far into the legislative reform discussion, I thought I'd start with a question for both of you. And that is: how would you compare the public profile of competition law and enforcement today in Canada, to what it was when, when each of you were at the helm of the Competition Bureau?
Lawson Why don't you go ahead, because you're further back than I am.
It’s a very interesting question, Charles, and it made me sort of reflect on on that era, and what it was like, I guess I would say, looking at the context of today, as opposed to then, and this is something we'll come later on when we get into to the legislative amendments, is that the relationship between the political class and the Bureaucratic class in Ottawa is very different today than it was then. And, and then policies like the Competition Act, which were, you know, are technical, and not really, typically vote getters, I would say the politicians by and large, were not that actively involved in it. I mean, I, when I think back at it, I honestly cannot remember the leader of the opposition, and whether we were sort of worried about them or not. And it was also a time when Bureaucrats in Ottawa, if you had good ideas, you could get things done. And I also remember that my minister, through this piece, because he was my minister a couple of times, it was André Ouellet. And, and one of the things I liked about Andre, as Minister was that he said, “Look, I'm the politician, and I'll deal with that side of it. And you're the technical expert, and you deal with that side of it. And as long as I've got confidence in what you're doing, then I'm not going to interfere with it.” Now standing back and thinking about competition writ large, and I'll say this maybe a bit later on, if you asked me that, something about that 80s era, but there was a very serious discussion about the need for competition policy that, as everyone may remember, had arisen from the Economic Council report in the 60s. But the federal government had a hell of a time getting it through. I know that, that he was a senior corporate lawyer at a major Toronto law firm who said amendments to the to the Combines Act, as it was then called, was a figment of the federal government's imagination. So so there was, there were certainly, and I guess what I would say has changed too, and and we may come up with this later, is that there was a recognition in the business community of the significance of what was being talked about here. And there was real engagement by very senior people inside corporations, but also in the legal world. It's not that these people were experts in competition policy, because there wasn't one. But they knew the importance of it. And, and so it was quite a fascinating time because of of that. But at the same time, it was a time when there were not really very many countries in the world that had competition laws. Now, we were, when you move into the 80s, and I'm going to stop after this, and its an era of deregulation. It’s an era, if you think about what was happening in the US or in Europe, with Reagan and Thatcher, and the same was happening in Canada. And so the role of competition policy was, I think, got a bit of a boost from that, not only because it was a move to rely more on the market, and the question was if you were deregulating what was in its place. And so I think that sort of looking at the force at the time, it was a good time, because it was a recognition that that the market was important, but we maybe didn't have the right tools. So that's my initial take on that.
I guess from my perspective, it's it's similar in some ways. If you're saying, well, what was the profile back then and the profile today? I agree with Lawson. From a from a political perspective, I think it's known more about politicians have heard of the Competition Act. They've heard of the Competition Bureau. I'm not sure that they have in depth understanding what is done or the implications of some of those policies. The officials, I think it's different relative to the public service is as Lawson points out, both in his tenure, and during my tenure, we were involved in discussions, non enforcement, if I can put it that way, policy discussions with officials in the government who are developing policies in other areas. I, and Lawson did as well, I had discussions with the Clerk of the Privy Council. I recall having a discussion, by way of example, with the Deputy Minister of, or being consulted by, the Deputy Minister of Transport, when they were thinking about privatizing the airports that the government owned and said, What are the competence competition issues I should keep be keeping in mind, as we're going through that. I don't get the impression that the Competition Bureau is invited into that type of dialogue anymore. So I think that's quite different. Its profile is quite, probably higher, from a populace perspective. But it's, I don't know, it might not totally be different insofar as height, but it's a different class of people, that it has profile with.
Charles, so if I could just add one little thing to what George said is that, you also have to remember in the government at that time we the Bureau was part of the Department of Consumer and Corporate Affairs, which doesn't exist anymore. And, in a way that sort of gave it a bit more profile, because that department, what did the minister do there? And so there was a minister, and there were very senior deputies, and they tended to be economists. So Michael Pitfield was was the deputy minister in the 70s and he was my mentor, basically, and Sylvia Austria, I mean, George Post, there were people, this was seen as an important micro economic department. And it had to do something so like that, in a sense, having those people there and the separate Minister, I think, maybe was an assist in getting the legislation.
Those are really interesting observations. I wanted to just hit on one sort of historical factoid. And that is, and just by way of introduction, you know, it's said that, I guess, by the Bureau, perhaps, and some others that, you know, reform is needed now to address the digital economy and in particular, in some respects, bad case law, it is said. And I just want to take you, Lawson, back to an annual report from 1981. Where you, or I suppose someone instructed by you, wrote that the Minister on a number of occasions during the year stated his intention to introduce amendments to the Combines Investigation Act. That's obviously the old Competition Act. The amendments would deal principally with mergers, abuse of dominant positions, and conspiracies. Previous annual reports have commented on the weakness of the present law. The Supreme Court of Canada decision in the sugar case, as well as its previous decision in the insurance case, has cast considerable doubt on the efficacy of the present conspiracy provisions of the Act. Amendments are very much needed if the Combines Investigation Act is to be an effective tool to safeguard the public interest in free and open competition in Canada. So my question is, is this deja vu all over again? Or is the current discussion around amendments different? And what was animating the move for amendments in the early 80s?
Well, well, the deja vu, I guess, what you're picking up on is that every time the Bureau, and it's happened for a long time, you know, and it goes back well before I was there, whenever they lost a case, their sort of initial knee jerk reaction was, well let’s amend the law. And look at those, those provisions in the conspiracy section about how to prove an agreement, and by inference, I mean, that came out of a case. And so every time they, and they have lost quite a few cases over the years, their knee jerk reaction, or recidivist reaction, maybe is to say, “well, now let’s amend the law”. And so, for some of us who've been around a long time, we see this and they say, here we go again. And I guess, I suspect we'll get into this later. But it does beg the question about whether there was sufficient justification for doing that. Now, the second part of your question about competition law in the 80s. And it's something that I think that a lot of us, a lot of you folks who who were who weren't there at the time, I remember going to the OECD, and and in the early 80s, and think of who had serious competition laws in the world. It was basically the Americans, the EU, but the EU didn't have merger law at the time, the Germans because of this been imposed on them by the Americans after the Second World War. And then in tier two, there was sort of the Brits and the Australians and us and we were sort of dabbling, I might say, but the, there was no competition law in Italy. I mean, I remember the OECD, we'd laugh about it, you know, say, the Italians are going to have competition law!? And that was true. Throughout all of Europe, there really wasn't a competition laws. Well think about that today, and not only in Europe, but around the world. I mean, we now have 150 jurisdictions that have some merger review. None of that existed in the early 80s, none of it. And so Canada comes along, and we're trying to tag along with with the others, but, but it was a very, very different era. But but at the same time, over the last 40 years, obviously, this has been a tremendous growth industry for lawyers and enforcers, and economists who have maybe made out even better than the lawyers.
I think all lawyers would agreewith that.
Yeah. I let me jump in on that, too. Because I agree with Lawson and the, I think in today's environment, is it deja vu all over again? I think it's different, frankly, I mean, in when the amendments were brought in, under Lawson's guidance, the law hadn't been touched, frankly, in 100 years, right. And since this new legislation came in, in 86, it's already been amended once, if not twice, I'm losing count now. And they've been what I term as surgical. So what I find with the latest round is people are trying to blow it up into oh, we need a massive overhaul of the Act. And my view is you just need a tune up. You don't need a massive overhaul. And like, Lawson, this pattern of “oh, because I lost a case we need to change the law”, I think is worse this time around and has been in the past. It's sort of when I saw the Commissioner’s submissions to Senator Weston, I immediately, as a parent, thought about my child complaining about how hard their homework was, and is there something that could be done. And the job of the Commissioner is tough, and you won't win most of your cases. And that's part of the job.
So well. Well, that brings me then to discussing the budget bill. And as I had mentioned previously, you know, that that includes, although, of course, it includes a vast swath of other amendments unrelated to the Competition Act, includes certain pretty significant amendments to the Act itself and including, with respect to abuse of dominance, criminalizing wage fixing and no poach agreements, and increasing penalties and a few other items. But, you know, notwithstanding what, what you're each saying about, or at least, George, what you've just been saying about, you know, maybe blowing up the Act, these these these amendments have been described as fixing loopholes. Is that, I don't want to say disingenuous, but is it, is it, is that the case?
Well, I think it oversimplifies a lot of issues. I mean, tell me what the definition of loophole is. Was it a deliberate policy discussion or decision not to deal with something versus another? I think part of the part of the issue is there's a an undercurrent, I think, and Lawson may have a view on it as well, of big-is-bad surfacing through the legislation, and at least the discussion, not necessarily BIA provisions, but in the discussions we're hearing about. And you mentioned, Charles, the digital market. And that is a perfect example where the rhetoric is: because they're big, they're bad, and we have to deal with them. And that, frankly, is of concern to me. So that issue of, you know, what is a loophole? What isn't a loophole? There are issues that we can deal with in the Act to help make it more efficient. You know, efficiencies are our daily bread and butter in this in this area, but I think a lot of these amendments that are being proposed don't, uh, go over the top and aren't necessary. And frankly, I frankly, I think, raise some risk and serious questions. And I recognize that we have the BIA now, and that's dealing sort of with a slice of the amendments that are being spoken of. But even with that slice, I think there are some mistakes being made there that should give rise to some concerns.
I think that this is, it goes beyond what I expected, to be honest, because the minister gave that speech where he was saying he was going to do some little housekeeping things, and, and, you know, some of them, I think a number of of us thought so what, you know, maybe we're just catching up. But I think it is definitely gone beyond that in what they have done. And I really think this use of budget implementation acts to introduce really substantive amendments to technical laws, like the Competition Act, is a very dangerous thing to do. And as I said to Mark Shan, who is the key writer, I guess, or he oversees this, and I said these days is and what you're doing in this budget bill is you're fixing the mistakes you made in the budget bill of 2009, in part, so, so you know, and I said, you watch, you're going to be back here in a few years. That way, if you pass these, say we made a mistake, because we didn't, in my view, part of the problem with that is they have not properly consulted with knowledgeable people. You stick these in a in a budget bill, the really the you have not consulted with affected parties in any meaningful way. And because it's in the budget bill, it's a matter of confidence for the government. And so they get passed, and so there's not even, the legislative process doesn't work, either. So I think this is a mistake. And they should really be careful in in trying to use the BIA in this fashion. But on the other hand, I think the chances of it getting stopped is not great.
Yeah. I mean, having made the decision to put it in, they can’t very well carve it out. I agree with Lawson, and they think there, and we may get into some of those provisions in the discussions, Charles, but you know, the at this point with respect to some of this, the best we can probably hope for procedurally is that they would delay implementation of these provisions if the BIA goes through. And if you, know political stars align, maybe they'll be able to revisit these provisions in a subsequent consultation process, and revise and amend what they're introducing through the BIA.
So maybe just to pick up on two of the substantive proposals in the BIA. It seems that abuse of dominance seems to have taken sort of center stage in this round. And there's been, I would say, an expansion of the scope of the provision by, I guess, changing or putting in some wording with respect to what is a practice of anti competitive acts, which traditionally has played the role of a sort of a screening mechanism that adds a layer beyond just being dominant and having your conduct have an have an impact on the marketplace. And as also, you know, proposes to allow private parties to bring actions before the Tribunal for relief with respect to alleged abuses of dominance. And then finally, would increase the penalties for engaging in an abuse of dominance, the monetary penalties. What's your sense of that? And, you know, substantively as a sound policy, and what do you think of those proposals?
Well, I guess I'll jump in on that one. I think this is an example where there's a provision being shoved into the BIA that would benefit from a detailed consultative process. That being said, I'm on record for being in favour of private access and private actions flowing out of the Competition Act offenses or conduct, and I'm glad to see some movement in that direction. I'm sort of puzzled why it's just the abuse of dominance provision, and not so much even the mergers provision. When the issue of private access was first raised in the, I guess, if there was a round in the early 90s, probably around 93 to 95. And there was a consultative round undertaken, then, on amendments to the act and when the issue of private action was raised then there was a huge pushback from the business and the legal community, oh, you're opening the floodgates, we'll see a whole slew of strategic litigation and we shouldn't be doing that. It's too important. So that was deferred. They opened that narrow window of private access to the Tribunal as a testbed for the for the floodgates theory. And as the history has shown us, there was no floodgates and and, on this issue of strategic litigation, I laugh when people raise that because it's going on right now, at the taxpayers expense, in the sense that strategic complaints are being made to the Bureau, well documented and well put together by lawyers who know their stuff and know what the hot buttons are at the Bureau. And they're provided to the Bureau and that litigation or that review process by the Bureau is undertaken by the Bureau. I've had Bureau officials say that the largest source of their cases now are complaints from Bay Street law firms, for their clients. So this issue of floodgates if you open direct access I think is a myth. And I think actually doing that may actually decrease strategic litigation, because there's cost implications of the plaintiff losing, which there are no cost implications to the Commissioner, to private parties if the Commissioner takes their case, and does and loses it before the Tribunal.
I think conceptually, it's first of all on access. Although I in the past, I've been cautious about that. I don't think that's controversial. I think opening it up. I'm sort of I'm like, George, I mean, all this fear that somehow we're gonna have this massive litigation, I think is not well founded. You know, it’s curious, you know, and I remember I used to say it when I was at the Bureau, is that we had these vertical issues in or and in monopolization and we never had any cases. And then you sort of always beg the case. Well, why aren't there any? And maybe the answer is that there aren’t any. I mean, don't assume that there are terrible things going on. But I think the approach they're taking is on adding factors, things like that, I think signaling what should be done through the current framework, I think is the better approach myself. Now, the key thing, apart from the access, to me is what will be the implications of their move, trying to codify or write into a statute this business of you can go beyond harm to a competitor. And and so they they have some rather vague language about that. And by the way, I have myself, to just to be open about this in a session that the Canadian Bar Association years ago, suggested something similar that they, because I do think in part that, that the application of the law has become too price driven, if you know what I mean, that that, that that is the only factor that really matters. I, I also worry that that the role of analytics or econometrics or whatever has been oversold, and it sort of tends to lead you there too. The problem is, and I had something that was not quite the same, and I drafted something to change that to broaden it a little bit is, if you attempt to do that, can you do it in a way that is actually justiciable? Let me put it that way. Or that that will lead to sort of a standard that people understand? Or are you just providing the government or the Commissioner with very, very broad discretion? So So I worry about it. But on the other hand, I think it's it's something worth thinking about. But I guess I'm not sure, just like George, I would not have done that in this BIA where you're sort of stuck with it. I think it deserves much more thoughtful analysis, which I don't think is taking place.
So maybe we can switch gears to another loophole that apparently is being addressed, which is that hither to buy side agreements between competitors have not been criminalized and specifically, with respect to wage fixing and no poach. Obviously, this has been the subject of some public interest and discussion coming out of sort of the grocery sector and pandemic pay. And it's been a hot button issue in the United States with some high profile criminal trials of late that have notably been unsuccessful to date. What's your take on on this move, which has which has really garnered a lot of public attention, it seems, but you know, do you think this would, if If passed, well, first of all, is it appropriate?, but if passed, you know, will it lead to to aggressive enforcement in this regard?
Well, I'll I'll go first. I, in principle, have no problem with trying to do something to bring buy side agreements back under the Criminal provision. It should never have been taken out in the first place, in my view, it was, again, it goes back to the 2009 amendments where they rushed this through without thinking it through. So, but I am worried that what they have done is going to lead, is not well thought out. And we'll again have unintended consequences that we'll have to fix. So so again, it's another provision where, in principle, I have no problem with with the wage side of this and it properly thought through, etc. But I guess my last comment will be that I think what we're seeing here, and we, we may get into this a bit later, is, let me call it the populous politicization of competition law is, is that this is there. And I always thought that the things they were going to put in this bill, were gonna be the clearly the things like like this, you know, support for wages and the drip provision, etc. They were things that were politically popular and understandable. And, and that's why they were doing it, so it was largely being driven by the optics of it, as opposed to what's the really good policy.
Yeah. And I guess, just to add to that, and perhaps be slightly different from loss and in perspective, the issue I take with this, the provision that's being proposed, that it's per se criminal. And there's a lot of gray as to whether or not all wage agreements would be have a negative effect on the market. Now, to the extent that there are issues that do have a market effect, you need to have measures in there, you know, will it have a substantial effect on the market for coding engineers, or whoever is the sort of the target group of the wage fixing agreement? So shoving it into a bold section 45 automatic, per se, criminal offense, I think was I don't agree with and, you know, that's reserved for things like price fixing, you know, conspiracies on bridge building in Quebec, or things of that nature. I'm not sure that the way it's configured now, is sufficiently circumscribed to something that would be obviously, in all cases, should be criminal. So that's the issue I have with that one.
But but you're you wouldn't, you don't disagree that there should be…? Well, I guess you do. Maybe you're saying it should be stuck in civil and 90?
and not in 45?
Yeah. Unless they can narrow it down. The way its scoped now, in this bill, it's too broad. I find there's no, there's no competitive impact element to it at all. Yeah.
Well, and also this is an, agreement between employers. I mean, you don't even have to be competitors. I mean, yeah, it's just gonna bake all kinds of questions. Now, Charles, you said, is there going to be active enforcement? I'm not holding my breath.
There there might there might there might be if there were private action allowed on some of these.
That’s, yeah, that's what I was going to say was that we hadn't mentioned that Jail time is one thing, I suppose but, and fines, but the private actions for criminal conduct that's criminal under the Act, obviously, could be another, especially where a lot of these types of agreements are actually, you know, in the ordinary course, often written out and quite clearly agreements, therefore potentially making a private party’s job that much easier, at least getting past the threshold.
And on that, on that Charles, the, one of the beauties slash consequences of private actions is class actions. And, I know from my experience is, there are there's almost more of a fear of the the subsequent class actions by parties than the actual fines. So if the objective is to deter the, the this type of conduct, I think having private actions permissible is the way to go or class actions permissible.
Yeah, and I guess hopefully, one might expect in these circumstances to get some guidance, pre pre- implementation. In any event, let's move to what a next round of potential amendments might look like, because it has been foreshadowed that there will be a second round that may or may not be, or involve, more significant consultation or maybe consultation period. And and hear it, you know, it seems a little more freeform. But, you know, we've heard again that the specter of digital markets, it's been a rallying cry for readiness and calls for increased funding and an even legislative reform. And I guess, you know, I look at the at the the, you know, the case load or whatever you want to call it, the docket. And, you know, I don't see a ton of digital markets cases, maybe there's a lot going on in the background. You know, there have been some investigations. But are are digital markets, in your view, really, really that big a deal at this point from a competition law perspective, or at least from a legislation perspective?
Well, I think they're definitely popular in the marketplace, whether there is something special relative to the Bureau, I think the Bureau is equipped. I mean, in Lawson's time, they had to deal with innovations in technology, and so on. And, you know, case officers didn't know that business in my time as well. So the fact that you have a new technology in the marketplace doesn't necessarily mean that the Bureau has to create special units, or we have to change the law just to focus on that. I think the its efficiency, sufficiently flexible to deal with that. And of course, if there are, if there is unlawful behavior in that sector, by all means, go after it. But I think part of it is going back to my opening comments, and part of it is this notion that big is bad. And I'm very worried about that permeating the amendment process, because that is counter to the philosophy that under underpins the 86 Act, the current Act, is that mergers are not presumed to be bad, bigness is not presumed to be bad. It's bad conduct that is bad, and not size. So, I think part of this obsession with the the digital sector relates to this big is bad notion, plus, it's being, as as Lawson hinted at earlier, it's being sort of layered on, the competition law is being layered on, or vice versa, issues of privacy, issues of inclusiveness, all sorts of social policy instruments or other policy instruments open to the government. The Competition Act is not the sort of the utility knife of public policy in Canada, it's a it's a competition market approach. And I'm worried about sort of being taken off its mission. And there are a lot of other tools available to the government at any time to deal with those other issues in a more efficient and direct way.
Well, just to pick up on that, George, and I'll, I'll, I'll flip it back to Lawson. I mean, there seems to be a relatively broad consensus, I think, from within what I'll call the competition law establishment in Canada. And I think that includes the Bureau and private practitioners that that deal with it every day, that the act is sufficiently flexible, as you say, to accommodate issues arising in digital markets. But but certainly some voices have emerged, mostly, I think, from academia and some sort of think tanks to question the establishment view, if we're going to call it that. And to seek to broaden the objectives of the act and how much sort of political water I would say it can hold. And and I would just ask, you know, what, what do you think about that? Are we, I guess, the establishment being far too stodgy about limiting the act to economic and efficiency objectives. And what's at stake?
I think there's a lot at stake, frankly, because the and that's sort of you're focusing on my concern is people are forgetting that the Competition Bureau is a law enforcement agency. It is not a regulator. And it is not a a broad public policy instrument as well. And I think the a lot of the debate by those who aren’t in at the table and, you know, Lawson and I, not only have we had private practice and Bureau experience, we also have been in industry. We know how corporate decisions are made around the executive table, how investment decisions are made. And there, I frankly have absolutely no faith that the Bureau has any appreciation of the significance of some of those, some of these amendments on the corporate decision making, on investing in Canada, or expanding operations in Canada versus doing it somewhere else. So I'm worried about confusing the role of the Competition Act and the Competition Bureau and layering on these other things. It will have serious and unintended consequences.
And I agree with that. I mean, I have suggested and I know Ed Iacobucci’s paper does too, and the Commissioner’s very non-agreement with that is that, if we're going to have amendments, maybe this is an opportunity to clarify that god awful purpose clause that gets stuck in the Act at the 11th hour. And we thought we were writing something that was meaningless and lo and behold, it had legs. So but I am also but I want to talk about your digital thing. I think it's a mistake, and I to ignore the public concern about big data. And I do think that it feeds in a bit to your question, Charles, about has the has the establishment sort of, closed ranks, if you will, and said, everything's fine, go away? I think that's not gonna work. Now, and I do think there are other voices out there, as you say, and I won't name names, but I mean, I find some of the work that comes out is is close to sophistry, in my opinion, but but it's, it can't be ignored. And I really worry that the direction of that and George has raised this as well, is that it is trying to move competition policy into a more ex ante, as opposed to ex post, world. And there's also this sense, and I know, George, I'm sure you ran in with too, I remember, good ol’ Dan McTeague when he was was an MP, that they're and your seeing, they don't mention it this way, but there's this sense that if we can't find a remedy anywhere else, just stick it in the Competition Act, I mean, the Competition Act is not a panacea for all the ills of society. And as I've said many, many times as it is cast now, and I think in my view properly so, and I think that's certainly true in the US, it’s doctrinal, you know, it's an it, but when you say something is doctrinal, one of the key things of that is it has limits. It has borders, it's not just anything you want it to be. Now, I also worry that the European approach to regulation, which tends to be more ex ante is, is infecting us. And we need to be very careful about that, in my view. I worry that, and George has raised it, and I'm going to put it in a slightly different way, that that the Competition Act is one of the few pieces of legislation that the federal government has that actually believes that markets work. So the the last thing we want to do is to make it a ex ante regulator with government deciding and as opposed to having more faith in the market. And that's what's worrying me about this debate. And I do worry a little bit that, that I think you could make sort of signaling amendments that dealt with big data in the current framework of the Act, which I've suggested before, but I worry that it is going to get much broader than that. And if you look at the Commissioner’s proposals, I mean, it's that's way beyond big data. And if you look in what he said, and three or four places in that submission to Howard, or Senator Weston, it has like a one line, where it says “and the Act is not capable of dealing with big data” with no analysis, nothing to back that up. But just a bald statement that we need to do this because of the problems with big data. They're sure it's a new technology, but as George says, we've had those before. And in fact, in some ways, it's harder now because entry in some ways is easier today, that the speed of change is faster. You know, so to be trying to predict what's going to happen tomorrow is even harder. You look at TikTok. People complain about these guys, but TikTok, there was an article in the New York Times on the weekend˗˗more downloads, more than Facebook, active users more more minutes on TikTok than Youtube, this is last year and all in the space of a very, very short period of time. So we've really got to be careful here that we don't sort of turn the Act into a monster. And we I'm sure we'll talk about it a bit later.
Yeah, if I can just pile on that, I guess, two elements. One is the the ability of the digital market to self correct, for the market to correct abuses is far greater than the Bureau's ability. And I think that underscores, don't, the market works. You know, tick tock didn't exist five years from now and five years ago, and it's looking what it's doing in the market. To play so the market has an ability in the digital markets to self correct. Customers do not tolerate bad behavior. They will shift suppliers, they shift, we see that daily. So there's an a, we should continue our faith in the market. The other issue that Lawson touched on, is this notion that often the debate and the discussion that we see, the populace debate says, well, they're doing that's what they're doing in this other country, or that's what the competition law in Europe says, or whatever says. And I think we need to be very, very careful in assuming that every country has the same objectives behind putting competition law in place, and the provisions of the competition law. From my perspective, Europe is a classic example. They have, they hate the concentration of high tech skills and abilities in Silicon Valley. And you you've seen an enforcement practice slipping, you know, going down the regulatory road. And in my view, it's more designed at creating a protected environment for European domestic firms to to grow sheltered from the US competition, as opposed to being sort of nationality neutral in its oversight of the marketplace. So when the Commissioner or anybody else says “well, this is the provision they have in eight other countries”. I say, well, that's nice, you know, what's the purpose of their behind their legislation? And is, I don't care what they're doing, is it good for Canada? And the fact that a lot of people are doing it doesn't necessarily mean it's good for Canada.
So can I pick up on it's good for Canada in the context of what is being proposed, at least by the Bureau to be dealt with in a in a second round, I guess, presumably. And this relates primarily to mergers, there's quite a quite a laundry list of things the Bureau would be interested in, in doing in the mergers context, including, you know, shifting burdens of proof, reducing the sort of level of what what what a remedy is, as a threshold in terms of what what you're curing (is it just the substantial lessening or any lessening?), easing standards for obtaining an injunction, extending limitation periods after closing of a of a transaction, looking at expanding potentially the scope of notification, and then of course, repeal of the efficiencies defense. And, George, when you said, what's good for Canada, it immediately made me think about the efficiencies defense, because it's one of the things that obviously distinguishes Canada from some other jurisdictions. And obviously, the Competition Bureau feels that that is a very bad basis for distinction. But let's start with that. What are your collective views about the efficiencies defense? At this time, and in our history, I suppose.
Okay. I, I don't I think the problem, not that there are not problems with the legislation. I think there could be ways to make it better. But I do blame the courts and the Tribunal more than anybody else. I think the onus has been put on the Commissioner in the intervening cases is really not practical. And, and that and I think, I guess I largely share Iacobucci’s views about what needs to be done there. But I I do not think that it necessarily needs to go. But I do think there needs to be some changes to the efficiency defense, and maybe just to correct, but those onuses are on proving the case. Certainly when we drafted it, and I remember a conversation I had with Bill Baxter, if any, George you'll remember who Bill Baxter was, may he rest in peace, but he was the Assistant Attorney General in the Justice Department when I was Commissioner and and I remember talking to him about these amendments and that we were doing the efficiencies defense and he basically said conceptually, it's the right thing to do. And the real issue is who has who bears the onus of proving it because he said, you know, they'll have the hardest problem. And now of course, we're seeing a bit of the evidence of that, but I you know, there needs to be some changes to it, but I don't think conceptually it's really that terrible.
Yeah, I guess. I guess I'm in the same camp as Lawson on that. I think I'm open to you know, discussions as to whether it should be a defense or a factor in the analytical process. I do agree with Lawson and I think part of the issue resides with the Tribunals, just some of the Tribunals decisions on that. But the the, I think it's important to remember that the Tribunal didn't just pull this out of the out of the air, the Tribunal was faced with arguments by counsel on both sides and ended up going, making the decision that it dealt with. I remember people sort of years later complaining about the decision on efficiencies in the propane case, and the deficiencies there, that they were complaining about, was flowed exactly from the the front of the argument that was made by the Commissioner, to the Tribunal, and how the efficiencies defense should be interpreted. So some of this was done by the Bureau to itself in this in the arguments that it advanced to the Tribunal. So yeah, I think you could think about I think we need to keep efficiencies in the Act, whether it has to be a hard hard, defense, or could it be a factor to be considered? Yeah, I'm open to that.
And by the way, I'll say something and I don’t know whether I’ve said this directly to Ed, but you know, Ed’s paper, Ed Iacobucci’s paper,, on the objective clause, and on this generally, he he ties the whole Act into efficiencies, and that has been criticized by a number of people. And, and to be honest, I think I view it as more a nomenclature thing, I think it would have been better off to say consumer welfare than efficiency, because you're what you're really trying to do is what doc, as I said many times, what is the Competition Act, or at least what we thought it was, it was an attempt to legislatively map microeconomic theory, or industrial organization theory, onto a piece of legislation and it was driven by consumer welfare, you know, the theory of markets. And and so I think that we need to be careful about the terms we use. And I think saying just efficiency politically is not an attractive term.
And, Charles, when you were sort of opening the mergers discussion, you know, you referred to a whole bunch of other items that are on the hit parade list for that area of the law. And again, in those things, whether it's extending the review period for three years, these easing the standards for injunctions or some of those other provisions, I, again, I come back to my concern that we have to be very sensitive to the implications of these, relative to market behavior. It's all well and good for the Commissioner be saying we need to do this or do that so I have more time to look at transactions, or that I don't have to meet this onus of proof. And every time he does that, yes, it's making his job easier. But I think that shouldn't be guiding what's in the best interests of Canada, because the more of these things that are added to the pile, the increased transactional uncertainty, and I think it has a serious effect, as I mentioned earlier, on our ability to attract foreign investment to Canada, the chill, that just uncertainty and the rumor mill in the in the business community can deflect investment into Canada and important growth in Canada, whether it's fresh investment or further domestic growth by entities that are here now. So I'm very concerned about that.
I, you know, a number of the things they proposed to be honest, the sky won't fall, if they happen. But I thought the Commissioner’s statement about shifting the burden of proof was a little, I think some people may have overreacted to what it said, but, to be honest, I couldn't quite figure out what they were saying in the provision. But, I myself, you know, there's that provision in the Act, in the merger section, that says you can't make a finding of SLPC based on market share alone. Now, the history of that was was the fear, when we were doing the Act, from the business community that somehow there was going to be a moms grocery you know that that there was going to be this number, and if you exceeded the number you were you were gone. But so that's why it was put in there. To be honest, I never thought it made much sense and I think, with the time that has passed, I think that section could go. I don't think that reverses the onus, I think it takes away sort of an issue. And I had proposed replacing that with something and it was my feeble attempt to do what the Bureau is sort of doing here with this competitor and, and competitive process. So, you know, the language, as you know, they use this adverse effect on competition, which I think a lot of us are worried about, because every every act by every competitor has some effect on another competitor, I mean, this but I do think that that section could be replaced. And it could broaden this sense that, try to get at this notion that I said before that have we become too dependent on price effects.
It'll be interesting if we get into a round two of amendments and a consultative process. You'll recall Lawson there was an economist that used to do annual sort of efficiency assessments of how the Bureau is doing. I remember Bill, I forget his last name. Stanbury. Yeah, Stanbury. And he used to basically hold the Bureau to account on how it was doing its job on a regular basis. And part of the problem I'm having with the suggestions for these changes is I don't understand whether the need is arising from , the way the law is structured, or is is the Bureau managing its job properly?. And I think part of what we need is some insight. And maybe that will come up in the second round if there is a second round, as to how how the Bureau is using its resources to bring cases and to do its work. And is the issue, is that the issue? Or is the law the issue? Or is it a bit of both? And but I think that's a big gap in our knowledge base, as Lawson says, when there's no, there's no backing to some of the statements that have been made into the in the Commissioner’s submission to Senator Weston, that it's impeding his conduct or it's impeding his his ability to do his job. So I think some form of transparency and accountability for how the job is being done. And I know whether there's some sort of form of oversight, and Lawson may, I know, have some fears about oversight and politicizing the Bureau. But that's not what I'm suggesting. We need some way to measure the Bureau's performance other than wins and losses in front of the Tribunal. And we don't have that device.
Yeah. I agree with that, George. I mean, and I do wonder myself, because when you look at all these changes, and you really It begs a question of what was the real cause of the problems? And was it the quality of what the Bureau was doing? And or was it the law, as George says, and and I do think, you know, if we had a second round, that it would be great that, if there was some, some analysis of the cases or whatever, I because I'm concerned that the problem may be more with the processes of the Bureau, I guess, to just to get after our own profession, the quality of the legal resources available to the Bureau, which by the way, and George, I forget what was like when you were there, when I was there, you know, we hired outside, we had hired the best lawyers in the country. JJ Robinette was our lawyer, Ed Sexton was our lawyer, Gordon Henderson was our lawyer. We hired very, very senior counsel to bring these cases. And that's just disappeared, I think. It's all being done by justice. And and, and I'm not saying there's a problem with justice, but I do think, you know, and George, you were you were part of that cadre. Think of the number of people we brought in. Exactly. Ian Binnie you know, I mean just we, John Rook, so many people were brought in on interchange, and then went out, which I've always thought was a useful thing for the Bureau as well. I worry a bit about that. And and I worry that what's happened on the justice side has compounded it. I remember, I’m sorry, Charles, I'm going on here. But we used to fight with Justice all the time when I was there, because because we just thought they're not giving us the the, you know, they have no specialization. They don't know what they're doing. They don't take the cases. And Sylvia Osfey wrote a letter to the deputy attorney general at the time, because we were being told, you know, litigating lawyers, in one case, and you're an expert, so that this letter, I've never forgotten this quote. It said, I find it surprising that of all human endeavors, that of lawyering alone does not partake of the advantages of the division of labour that Adam Smith identified 200 years ago.
Yeah, yeah. Yeah. And you're right though, Lawson, that issue about the role of justice. And I think as, you know, when you had senior counsel like that, as your counsel on your case, they weren't shy to tell you “we think you're going overboard here. You're not being reasonable”. And my advice to you as external counsel, with all this, is to go down this track, as opposed to the other track.” I think too often today, the Bureau, the counsel that are coming from justice, are there to win a case, period. And their objective is winning, not necessarily, is this the right track to take? Because it's what can I do to make sure we win this case, as opposed to is this a meritorious case? So
Yeah, I, that I always used to say, George, that the Justice lawyers, and it maybe its changed. It's been a long time since I was in the government, but they tended to hide behind their institutional monopoly on providing legal services. Whereas, and because of that, they never had to worry about client relationships, obviously, they had a monopoly. And and, and I used to say that the impact, just as you're saying, of the outside counsel we used on what we did was far greater than anything that came from Justice and part of it, I think, was because of that: a) institutional arrangement they hid behind. And secondly, the fact they don't have the please clients, you know, private sector lawyers know how to get the clients to do what they should do. Justice lawyers sometimes don't.
And working, coming in to work in the Bureau’s sort of legal branch serving the Bureau was not perceived within Justice as a highlight of a somebody's career in Justice. So it wasn't the first place litigators wanted to go, for example, because there were no cases ever coming out of the Bureau, whatever.
Well, I mean, I guess in some respects, you're highlighting that it's it is a bit of a tricky balance and exercise. I think, obviously, the Bureau has received significant additional funding recently, and is looking to build its litigation capacity, you know, to attract people to to be working within the Bureau. And obviously, to give people opportunities for advancement, I would assume. And it's difficult, I guess, with the interchange that there's, you know, you're introducing variables into that. But, you know, I'm glad you both brought it up, because it was something I did want to discuss based on your experience. And I don't know if there's a way to facilitate sort of an institutional interchange, that that doesn't upset, you know, an attempt by the Bureau to obviously build up its internal, sort of, let's call it long term expertise in that department.
Yeah. And I would, I wouldn't just confine sort of the Accountability Review that George talks about, to just the legal justice side of it, I mean, the whole investigative process, the training of officers, you know, one of the advantages in the good old days of the old RPM was there were cases, you know, and and officers had to learn how to go to court and they had to learn how to put together evidence and, and it was actually a very, very good training ground for officers. And now that that merger, you know, if you think about in Canada and in the US, although it's changing, and we should talk about that maybe a bit later, if you look at the what anti-trust law is at the government level, it is essentially conspiracies and mergers. There's there's not a hell of a lot of behavioral stuff. Now, the big data stuff is moving us in that direction. But if you look at the last 20 years, it is basically price fixing and mergers, when it didn't used to be. Now, I'm not saying that's bad. I'm not saying it's bad, I'm just saying it has an impact on on your skill set on on, you know, on just how you act as an enforcement agency and what the skills of your your agency are.
But the, one of the things you mentioned at the beginning of your comment, Lawson, which I think is very important, is the RPM cases were a training ground for Bureau officers. And it helped them understand the difference between theory and evidence. Yes. And I think there's a huge gap that exists today in the Bureau on that.
Well, and that to me is, exactly George. It’s just the Bureau should you know, I'm not saying, I'm not expressing a judgment of how good they are compared to others. But I think there's something worth looking at there. Because there’s no sense giving the Bureau a whole lot of money if it can’t effectively be used.
And just on the theory versus evidence, is is the answer, I will ask, I will ask naively, is the answer to that theory versus evidence gap cured by some of the Bureau's proposals to allow them to issue their own compulsory production orders, for instance, or or commence market studies?
I guess my answer to that would be no. Because even now we're getting, you know, requests, give me everything you got is what the production order says. And in my mind, that is no, that's just a research study. And the Bureau is not a think tank. It's not a public policy house. It's a law enforcement agency. And I, frankly, would go the other way, I think we should do away with ex parte applications for production orders, unless there is evidence of destruction, excuse me, destruction of evidence, of documents disappearing and being shredded and whatever. I think that particular provision of the Act needs to be amended, so that they, those applications for production orders are on notice, unless there's a, the court is convinced through evidence from the Bureau that there's a serious risk of loss of relevant information. Not information, relevant information. Right. And there's a distinction there because the Bureau is just wants everything and then they want to go away for several years and study it and then they'll come out with their decision. And I think this, I think this issue of, I know, when I was commissioner, I interpreted the language to say, not that they had to be ex parte but they could be ex parte. And I would do many of them on notice. I think I did all of them on notice, until the the Justice Department said no, no, our opinion now is you can't do them on notice, you have to do them ex parte.
I'm just gonna add something here, Charles, which is maybe a bit of an aside, but but, you know, this, opening up all these powers to gather evidence, and particularly compulsory powers, when you have a criminal versus civil split on some of this behavior has always been a tricky thing for the Bureau to deal with. And, and I know, for example, back in the good old days, when we had, George was, was our council on the petroleum, the ill-fated petroleum inquiry. But that inquiry started out as a six-resident complaint. And it ended up being the largest inquiry the Bureau ever did in mid, and they started out as a as a enforcement inquiry. And then they find, well, there's not enough evidence so now we're just going to take all that evidence and move it over into this sort of, RTPC report. And, but but I know, and I remember ol’ Jack Quinlan, I don’t know whether you remember Jack Quinlan, George, but you know, the Bureau would never use the the interrogatory, part of their powers in those industry wide inquiries. They just thought, that’s, you're asking people under oath, to maybe incriminate themselves, we're not going to do that, you know?. So we were worried about these things. And I, I think, I'm not sure people think these things through so much these days, it sounds like we want all these powers, and then you got to operationalize it and say, well, what really will make sense here and what problems might we run into down the road?
And then that issue comes up, Charles, in the market studies issue, right? I think you had some interest in that as well. And I understand what the Bureau is asking for, and they just want a carte blanche to issue these production orders and do a market study. I come back to my initial point: you are not a research institute, you are a law enforcement agency. And if the if there is to be a market study component to your job, it should be circumscribed. So, I would say, you know, the Minister now can direct the initiation of an inquiry. We saw this week that the Minister of Industry wrote to the Commissioner asking him “would you look into something”. So short of that inquiry initiation, if you want to do, if market studies are important to the government, and they want the Bureau to be doing that, then they could put a process in place where the Minister issues a directive to the Bureau: “thou shalt study, pick an industry, pick an issue, I want a report back in a year. And if you need to get information from the business community or the parties, you’ll get an order, on notice, from the Competition Tribunal.” And then at least we know what we're talking about, and we know that there is a, a need other than just curiosity on the part of the Bureau, because we don't know what's behind the Bureau's request, right? So, and again, that's back to Lawson's point, you know, the, the implications of issuing these orders, particularly on an in a sector study, the Bureau has no appreciation for the amount of money it costs the recipients of those orders to comply. And I think, again, that comes back to the accountability, the trade off that should be made from the public policy perspective on: is that the way Canada wants to go to deal with this issue, or is there some other way of doing?
And, George, you're you you were in the middle of petroleum inquiry, and I call it ill-fated. I mean, I, I personally think, at the end of the day, that whole inquiry amounted to a hill of beans, you know, in the sense that, sure, you know, lawyers made a lot of money, and the hearing went on for years, and we get this report and not one goddamn thing changed.
And it was a, just just a personal anecdote, I was a new newly called to the bar, and I was working with Gordon Henderson. And Gordon Kaiser, don't forget Gordon Kaiser. Both of them, both of them the two Gordons: Kaiser and Henderson. And as a new lawyer on the other side of the table, where you know, the likes of Jake Howard and Robinette and everything else, you know, all the names and, and I remember in one instance, and we were obviously, and we'd have breaks in the morning, and then they'd go out. And after every break, there'd be an objection. And you knew darn well, they went into the council room, and they sort of said, okay, who's going to who's going to put them through the hoops today, right? And we get one of these objections. And I remember going home at 11:30 at night and being happy that I was going home early tonight. And then the other side of my brain kicked in: are you nuts? But the one of the outcomes, one of the recommendations of the Bureau, in its final argument in the inquiry in, before the RTPC is that gasoline stations should post their prices, visibly along the side of the road. The theory was, then it'll be transparent, and consumers will be able to just, they won't have to drive into the gas station and then see what the price is on the pump. That was the theory. Of course, everybody since then, and it was implemented and the companies did it. And everybody now says oh, they're using that as a price signaling device for conspiracy. So I just find it ironic that that came back full circle, one of those recommendations.
I know, I used to say, but in commodity markets that you can't sell gasoline across the street at two cents a litre more, I mean, its just, it leads you to price uniformity, but they're commodities. There's no tire in the tank. We know that!
I know, I know. I know that. But you still get a lot of complaints, you know, about oh, they're selling at the same price. And you say, well, that's the way the market should work, you know?
Take like long weekends, I sure hope in Canada this weekend that prices don't go any higher than they already are.
Yeah. Think about the lemonade stands across the street from each other. Whatever.
Well, George Lawson, sort of on that note, maybe we should change gears a little bit. And I want to take you through a segment that we call overtime. Overtime is where we like to take ourselves outside of regulation play and explore some additional lesser known dimensions to our guests, including their personal interests and pursuits in compliance of course at all times with National Hockey League shootout format. In our Overtime segment, we take three shots at getting to know our guests a bit better. So hope you're ready for this. And this is sort of rapid fire format, so however you want to want want to go we'll, maybe Lawson will be the first to answer each question and George can can chime in. So what would you be if you weren't a competition lawyer?
Well, I'm going to change your question. What would you like to be if you weren’t a competition lawyer? And what I've always wanted to be was a piano player in a bar. But I'm not up to it. I'm just not good enough. But that's what I'd like to be. Otherwise, I think I would have been a marine biologist. Like George Costanza.
George. Is it my turn now? Yes it is. Yeah. Strangely enough, it's, I'd be in the musical field as well. I would like to be a an arranger of music and orchestras, I think, some, I’m a fan of really good soundtracks in movies. And I'd like to be the person that puts those together.
All right, so second question. As we perhaps come out of COVID, people might be interested in what your favorite overseas trip is, or was.
No, my, my favorite trips were our motorcycling trips. So I've done Canada, US, Norway, Spain, Italy, Morocco, and South Africa. And that's, and I really enjoy those.
I would, I'm gonna give you, I'm gonna give you a two part answer. I would say, you know, I've done a number of bucket list trips. But I would say probably the Safari was was the most fun. And the other thing I used to say, when I left the Bureau, I was interviewed on As it Happens, and they said, What do you want to miss about being the head of the Bureau and I said, spending three weeks a year in Paris, at the OECD. So, so Paris is a wonderful city and I have certainly enjoyed having to spend some time there every year.
Lawson, did you refer to the OECD as I was taught when I started going there? It stands for the organization for endless discourse and conversation.
Yes, exactly. Good times.
Maybe to take the flip side of the last question, maybe in light of some staycations or stay-ish-cations during COVID, what is your favorite Canadian place? And I will I will not allow as an answer your hometowns.
Well, I would say, I'm gonna give you two answers one’s sort of serious and one’s not. I don't own, unlike George, but I rent a cottage on the little lake near Point Comfort, north of Ottawa. And I really, really like that. And I'm originally from New Brunswick. And I say that the best original, and I go back, but my best original line that I've ever made up is the New Brunswick’s two most famous tourist attractions are things that work backwards, and it says something about the place, the reversing falls and the magnetic Hill, so go to New Brunswick, I would say.
Yeah, and I guess for me, I too, enjoy my cottage. Lakefront property has been particularly attractive during COVID as a place to hide out. But I've been fortunate in my career to have traveled a lot across Canada. And I've been up north, east, west, all over the place. And there are so many places I love in Canada, it's hard to put a picture on it. But typically they involve water, whether it's lakes or ocean front, and also the Rockies. They're just phenomenal. And, you know, as a plug, I wish more Canadians would tour Canada, then find somewhere else.
Excellent. Well, thank you, I think you've survived the shootout, both of you very well. And just as, you know, before we wrap up, and maybe to sort of change the tenor of the discussion. Because obviously, we all have to put our critical thinking hats on but at the same time, I'd be interested to know what each of you thinks the Bureau is doing particularly well, at the moment.
I guess. I I'm not opposed to what Matt is doing with this paper. I mean, I think he is, but I wish he would do more. I mean, it as we have seen from the the speech he gave about amendments that that I don't, I think that was a good thing to do. I think the Commissioner needs to stay in the public eye. And not just through enforcement action, but but by, as an advocate for competition. And, and I think he's doing a bit more of that. And this paper has done that too. And I think he is having an influence. So I'm encouraged by that. The Bureau needs to be relevant. You know, I used to say about about Melanie, but if you correlated the cases she brought with the least loved brands in Canada, there was a very high correlation. And I didn't say that critically. I think that's a good thing. You know, I think again, it gets back to my point about the Bureau needing to be relevant and understandable to the public and, and so I think he's moved that way. But, other than that, to be honest, I have a hard time articulating precisely what I, I would say they're, the best thing they're doing today. George, I’ll leave that to you.
Yeah. Well, I frankly, would say ditto. I think part of the part of the issue we're facing is, or at least that I'm facing is, I don't know enough about the way the Bureau is doing its business to say which part of it has been done particularly well.
So, thinking about, you know, non-legislative, well maybe they would involve legislative amendments, but not to do with our specific Act at the moment. I'm interested. You know, you're both former Commissioners, there's a certain structure to, I guess, to the Bureau, although it probably changes over time. But there are also other models outside of Canada, with respect to, you know, Commissions that have, you know, numerous commissioners or, you know, other kinds of, you know, with administrative decision making, or what have you, but do you feel that our institutions like that, including the Tribunal, are sort of fit for purpose? I understand that's a very large question, but I just a brief answer on those. Or if that's just not something that we need to be looking too deeply at.
I wouldn't be spending a lot of time looking at this issue of the Bureau versus the Competition Commission. I think you're adding overhead needlessly, frankly, so I know it's been on the, sort of, the talk circuit for ages. But I don't see any particular advantage to that structural change. For the Tribunal, I'm sort of still mulling that one over. If you look at the history there, yes, it's been quite useful. Has it been, in hindsight, I know when it was introduced, we thought, oh, this is such a specialized area, we need a specialized Tribunal. My sort of, my belief that that has to be the case has waned. I'm not sure the issues that the Tribunal deals with, from a complexity standpoint, are more complex than some of the financial, commercial issues, or even scientific or patent issues that high courts deal with or other courts deal with? So, you know, is it a burning issue with me? No, I don't think there's a burning need to deal with the Tribunal. If you do introduce private access to broader provisions, you'll have to go outside the Tribunal for those, For instance, you know, class actions, that won't be in front of the Tribunal, it’ll have to be somewhere else, right? So there is a role that can and could be played there. But that's, that's all I see from an institutional perspective.
I've never been a big fan of the sort of OSC model, if you will. On the other hand, I suppose it could work. But and I guess as George has said a number of times. And is certainly my view, I think the notion that the Bureau is, is a law enforcement agency needs to stay there as its fundamental purpose. Now, now, the Tribunal, it has been disappointing to me in a few respects. I mean, the cases take way too long. That I, in part, kicked myself that when I left the Bureau, we hadn't done enough about what the rules were gonna be. The bar is always conflicted about this because the litigators want to leave no stone unturned and, and the solicitors want to get on with it. And, and every attempt to try to, sort of, make that more expeditious just never seem to have happened. One of the things that I've talked about a couple of times, and I've threatened to write about it but haven't, is that should we do away with the lay members? Because what are they really adding to the piece? I wouldn't get rid of the Tribunal. I’d keep it and I have a way that like the Don McFetridges, or the economists could could still be involved, as it used to be with the old RTPC as you may remember, George. But to me, the lay members don't really add much. They slow things down because the, they're not available, or you can't find people who can spend weeks on end in Calgary. So I would, I think it may be time to think about getting rid of the lay people. But what I would worry about, and I understand the Chief Justice, or maybe, I don’t know if it was him or I think it was Allgrep is saying well, we should get away with the whole Tribunal and just put it all in the Trial Division of the Federal Court. I am worried about that. I guess I'm not like you, George. I, my experience when, we used to, everything was before the Superior Court was that a judge, maybe had one case in their entire career, he gets back to my point about one case, and I'm a special, but you only have one case in your career. I'm not sure that makes you a specialist in this area, and I would worry about throwing it open. How many judges are there in the Trial Division of the Federal Courts these days? 100? It's a lot, you know, so I, I would worry about that. I would keep the Tribunal, I'd have the designation, but I would consider getting rid of like…
I guess. The question on the data on that one Lawson, I think you'd have to ask yourself, well, how many trials do the Tribunal judges see, hear a year, right? So I mean, it's not that much either, right? And you might go your, through your career and only hear five trials by the time you leave the Tribunal in any event. So, I'm not sure I'm sure the quantity issue is… I understand your point about the the knowledge base, but I mean, you know, section 45, which is the most serious offense in the, in the legislation goes to high high courts in the provinces. And I recall one in the pharmaceutical area, it was the first and only case that that judge had ever had, and he did a bang up job. So I understand that and I've heard that point. I'm just, I'm still not sold on it, I guess.
Ah, the litigator is coming out.
No, I think can move faster if you did it, frankly, through the provincial courts, but whatever.
Well, I mean, I see our time as is running a little short but I, I would be remiss if I didn't ask, given your very successful and long careers, you know, you've you've obviously both been there and you've you've certainly done that. And would you have any advice for someone coming up the ranks of, you know, the legal community who's getting, getting involved in competition matters? Just if they wanted to have a long and successful career, if you have a little, little advice for them.
I guess mine would be, sort of, don't go work in, for a firm in the competition group and spend your whole career there. I think both Lawson and I have benefited tremendously from our various career stops, you know, in the public service and in the business community. It really broadens your perspective. When you're analyzing and providing advice to clients, it's not just, and it's exciting, practically. But in every move, every career change, I mean, it's been exciting. So I'd say don't hesitate to change, to move.
I guess what I would say and I’ve said piece again once too, throughout my career, and George I think you've been the same, that I've always been interested in good public policy, and wanted to participate in whatever the area that you are in. And my own observation of the bar, and I guess I'm not saying it's just about the competition area, but other areas as well, is that lawyers have really, really narrowed themselves and and and don't take the time to say, why am I doing what I'm doing? Is this the right policy or not? And, and the other thing that has happened to the competition area, And maybe there's no answer to this, but back, George, when we were doing this, it there were there were so many papers being written about the different aspects of competition law. And and that seems to me to be less than what it used to be. Now, maybe there's no great leap forward theory, you know, forward theory about what to do here. I suppose upward price movement was sort of an attempt to sort of try to do it, which seemed to be sort of fizzled. But but I guess it would, that would be mine. And I agree with with George too, that it's always good to think about why you're doing it and have different experiences. And and and lastly, don't take yourself too seriously. It's just, now one of the things I'll end with George, but no, when I came back from Bell, the corporate guys in their Montreal office asked me to come speak to them. He said, well, what was the difference being the client and the lawyer, outside lawyer? And I said, the big thing that I noticed right off the bat was accountability.
Yeah, exactly. Oh, yeah, exactly. And I was just going to jump in on that. You know, the, when you're outside counsel, to the Bureau, you're you're playing that role. You're in the Bureau, you're, you're assessing market activity and trying to figure out how to go. When you're an outside lawyer, you're giving advice on that. But, yeah, it's very sheltered because you know, you don't live with the decision one way or another, but in the experience in the business community was phenomenal and very exciting because you got to play the game for real, right? And you were accountable. And you were accountable for it, so you made the plan. And here's my bet on what I can do in the market and how I can improve competition and advance the interests of my company and my shareholders. You made the decision you lived with, but I mean, part of that's the thrill. You're playing, you're playing the game for real.
Well, gentlemen, that's…
Lawyers have it pretty good, guys.
Yeah, that's fantastic advice. And and George Lawson, you've been incredibly generous with your time. Thank you so much for sharing your insights and experiences. It's it's a real honor and thank you for supporting CBA’s counterfactual podcast. I do hope you can join us again.
It'll be fun.
Thank you. Thank you very much, Charles. I enjoyed it.
Thank you for listening, counterfactual is produced and distributed by the Competition Law and Foreign Investment Review section of the Canadian Bar Association. The opinions expressed by the participants in this podcast are their own and do not necessarily represent those of their employer or other organizations. If you enjoyed this podcast or would like to join the Canadian Bar Association, please visit www.cba.org/sections/competition-law.