CBA Competition Law Spring Conference co-chairs Josh Krane of McMillan LLP and Pascale Dionne-Bourassa of Bennett Jones LLP join counterfactual host Ian Macdonald of Gowling WLG (Canada) LLP to discuss key highlights form the conference, held at the Nelligan Hotel, Montreal’s Old Port, May 1-2, 2024.
In the fourteenth episode of the Counterfactual podcast, we host a follow-on conversation from the recent CBA Competition Law Spring Conference, Old Port – New Tech: Exploring the Future. The conference co-chairs provide the key highlights from the panel discussions (Private Access – A New Frontier in Canadian; A fireside chat with Canada’s AI leaders; Abuse of Dominance v. Unfair Competition – What’s the Difference?; and Merger Review - Does competition law and Canada’s foreign investment review enable or hinder innovation?), the luncheon keynote Fireside Chat with Members of the Competition Tribunal/Federal Court of Canada, and ancillary events.
00:00.41
Counterfactualpod
Hello, and welcome to Counterfactual: the podcast produced by the Competition Law and Foreign Investment Review section of the Canadian Bar Association. My name is Ian MacDonald, and in this episode, I'll be speaking with Pascale Dionne-Bourassa, a partner and Office Managing Partner at Bennett Jones in Montreal, and Josh Krane, Competition Law Partner at McMillan, who were the co-chairs of the section's recent spring conference in Montreal on May 2nd. It was just a great conference, personally, I thought, and a lot of feedback from other attendees who really enjoyed it as well, found it very topical. And, um, Pascale and Josh, hello, welcome to Counterfactual, we're so glad you could join us.
00:50.50
Josh Krane
Thanks for having us, Ian.
00:51.87
PDB
Hi Ian, good to be here.
00:53.89
counterfactualpod
Thanks. Before we get into the substance of what was discussed at the conference, Pascale, could you please tell us a little bit about the conference venue and the social events the night before?
01:06.68
PDB
Ah, with pleasure. So the- the conference took place at the Hotel Nelligan in Old Montreal, and the night before the conference, the event Josh and I had organized was sold out. In fact, we had organized a walking tour of Old Montreal with some professional guides, followed by the AURA show. It is a visual and musical show that took place at the basilique Notre-Dame in Old Montreal, and then dinner was at le Gaspar, a French brasserie, and it was followed by the welcome reception at the Hotel Nelligan Death by Chocolate, and I’m happy to say that no one died and everybody, in fact, seemed to be very happy about being there and enjoyed themselves.
01:49.88
counterfactualpod
That sounds great-- I'm actually envious because as much as I wanted to come the night before, I took a 7 a.m. on the uh, from Toronto on the- on the morning of the Thursday. Um, sounds great. Pascale, what did you consider to be the highlights and the key takeaways from the opening plenary, “Private Access: a New Frontier in Canadian Competition Law?
02:11.10
PDB
So-- so, I'm just gonna set the stage for, effectively, what that panel discussed, and then I will go into the takeaways if you allow me. So, um, the panel discussed the amendments of Bill 6-- C-59, sorry, that would allow the Tribunal to make disgorgement orders in private actions, which would require the payment of an amount not exceeding the value of the benefit derived from the conduct to be distributed to the party who brought the application or any other person affected by the conduct found to violate certain provisions of the Act. The takeaways, I would say, are the following: it's really not clear whether or not there will be an increase of private actions before the Tribunal, at least from perspective of class actions, because there seems to be many obstacles at this stage, or perceived obstacles, to do that. First, the leave test for the permission to proceed before the Tribunal should be, theoretically, less onerous with the amendments. Um, and if the private applicants pursue a claim under section 75, 77, 79, or 90.1, they would have to demonstrate only that they have been directly and substantially affected in the whole or part of their business, or that it is in the public interest that leave be granted. So, what will the relaxation of the tests entail and how it will be interpreted is, uh,
03:41.76
PDB
anyone's guess at this stage, and how will the public interest test be interpreted is the other question. So, what will be required to meet that test at this stage? Obviously, it's not clear. I think everybody agrees on the fact that guidance will have to be obtained from the Tribunal. Uh, if a class action is instituted, it's not clear how plaintiff will have to proceed with the leave. Uh, so, will they have to obtain leave first or will they have to ask for certification at the same time? Uh, if the public interest criteria applies, will this be satisfied by the mere fact that a class action proceedings is brought forward? That may be the case but at this stage obviously we don't know. Um, and-and, you know, in what horder-- order, sorry, this will- this will happen, and what will be required, and the last big unknown is: the damages that can be claimed will correspond to what, right? Um, there's also a few elements that I kind of want to point out. Before the Competition Tribunal if there is a class action, the cause of action obviously has to do with the violation of the Competition Act. But when a class action is instituted before, let's say the Quebec Superior Court, there can be,
04:57.74
PDB
uh, additional cause of actions that relate to the Civil Code of Quebec, for example, or the Quebec Consumer Protection Act. So, eh, the- the real question is, and one of the takeaways, is that the- the plaintiff’s Bar did not seem thrilled by all these obstacles, or unknowns, and so the question is: will it be worth it for plaintiffs to go before the Competition Tribunal for a class action when the provincial courts and the Federal Court already offer that option, and the plaintiffs, they know what's required of them and they know, effectively, what to expect? Um… so, uh, there's also the issue of the free-riding because a person other than the plaintiff could receive compensation all the while not having deployed any efforts and money in that- in that action. So that's ah- that's ah-- an interesting concept. And the panel also raised concerns regarding possible lack of experience of the Competition Tribunal judges for class actions. Now, with your permission, we’ll get back to that when we talk about the panel of the judges. And the other thing that the panel-- the first panel-- raised was concerns regarding the fact that there may be gaps in the rules in terms of how these class actions would proceed before the Competition Tribunal. And again, uh, we'll get back to that later on during the podcast. So to conclude, I would say there seem to be a consensus on the panel that at this stage there are many obstacles and too many unknowns to proceed with a class action before the Competition Tribunal.
06:28.92
counterfactualpod
Thanks and you-- you sort of answered a bit of my follow up question, which was, uh, “to what extent did the panelists agree or disagree in their views?” Can you say a little bit more about that?
06:38.44
PDB
Sure. I-- so I-I-- my sense is that they seem to agree that it was too complicated or are too unexpected at this stage that this may be because there's no guidance yet and that may-- these, um… these um… this discomfort or not knowing what to expect may, with time, be clarified. Uh but they seem to be uh comfortable in- in taking class actions in the courts where they were used to doing those, so at least that's the sense I got from, uh, and they were worried about, you know, the fact that the rules- the rules were not explicit how this should proceed and in what order and all that, so that, that I think is the takeaway from that first panel.
07:19.77
counterfactualpod
Great, uh, thank you. Josh, please tell us about the fireside chat with Canada's AI leaders.
07:26.89
Josh Krane
Well, we were really blessed, actually, to have a wonderful panel on artificial intelligence. I think it was really one of the highlights of the conference. I'm not sure if you'd agree, Pascale, but it was quite an exciting room. Um, we had, um, the former justice minister, David Lemetti, who was very very very involved in-in intellectual property issues. He was a-a big draw for the event and the panel was moderated by Fiona Schaeffer, who's the chair of the ABA, uh, section on-on Antitrust and she's been a very good friend of our Bar and flew up to Montreal, actually, especially to be- to be there for the conference, so we were- we were delighted to have Fiona's expertise, and she's been super involved in this topic, and so, I think the audience really got to hear from not only David and Fiona but-but three other um-- uh, major contributors to the, uh, Mila Institute, which is sort of Montreal's premiere AI think tank, uh, just to learn about all of the developments in this space including, um, the investments that are being made in Montreal, the barriers that these companies are facing in terms of, uh, raising capital, the interconnectedness between the AI companies and Big Tech and really the-the key takeaway for me, um, was that if Canada is gonna have an independent AI industry, we're going to have to really bulk up on computing power here.
09:01.31
Josh Krane
That the-the-the-the big compute, uh, resources are now being consolidated into some of the major players like Microsoft and Amazon and Google and it's gonna to take um a very very significant effort on the part of Canadian companies or the government to, uh, create the computing power that will allow some of these new AI companies to, um, to flourish independently in Canada and so I think that was quite an eye-opener for-for many attendees in the audience as well as the government attendees that were at the conference.
09:36.50
counterfactualpod
Great, uh, thank you. Now, the conference wasn't all about substantive competition law. Josh, uh, please tell us a little bit about the, uh, charity auction that took place.
09:48.36
Josh Krane
Well, we were delighted to welcome back, um, uh-- uh contemporary indigenous artist Colleen Gray to our- to our spring conference. She was our sort of guest of honor at the fall conference, where she painted a painting called First Light live before the attendees at the fall conference when we sort of hosted the dinner at the Canadian Museum of History in-in Gatineau and um, the painting was a wonderful sort of inspiration, uh-- uh, it was- was quite a-a nice piece of-of art which sort of tied together themes of ancestry and-and drew on some of the-the wildlife that were, and the-and the-and the um, the vegetation that's very common in-in-uh-- in Eastern Ontario and Western Quebec, and then we were very excited to have an auction, uh, over the lunch hour, and of course um I'd like to thank uh, uh Dominic Thérien for-for having the winning bid, and- and, uh-- and-and bidding on the- on the painting, and then the proceeds, uh, went to go support the First Peoples Justice Center in Montreal and we were delighted actually to have the executive director come and speak to us about all the good work that that organization does to help, um, Indigenous Montrealers, uh, with-with um-- with some of the challenges that they face, and-and of course the clinic is-is looking to, uh-- to-to find its, you know, it has a new home,
11:11.18
Josh Krane
And, uh-- and-and wants to-to broaden access, and so we were delighted to-to give them an opportunity to-to participate in our event and to support them.
11:19.92
counterfactualpod
Sounds great, thanks. Pascale, what did you take away from the fireside chat with members of the Competition Tribunal and Federal Court?
11:30.97
PDB
So, I will answer that in a second, Ian, but before I want to say what a tremendous do-deh-job Josh did as an auctioneer.
11:36.66
Josh Krane
It was fun. I’d love to do it as a second career, Pascale. It was lo-loads of fun.
PDB
You'll be fine!
Josh Krane
I have to say…
PDB
Y-you'll do a great job. You were great.
Yeah, it was- it was loads of fun, I have to say, a highlight for me.
PDB
It showed.
Josh Krane
So, thank you.
11:44.80
PDB
So sorry about, Ian. I couldn't help myself.
counterfactualpod
Not at all.
11:59.11
PDB
So-- so, regarding the fireside chat with the judges: so, we were fortunate enough to have Justice Gagné and Justice Little with us, from the Competition Tribunal. Uh, and initially, Justice Gagné asked us to remember that there's a difference between written pleadings and oral pleadings and that they serve two different purposes, and encouraged us to, um, uh, in terms of our all-- our oral pleadings, sorry, to be energetic and be ready to deal with the difficult aspects of our files. Sometimes as litigators, we-we tend to--
12:30.33
PDB
we tend to put these under the carpet when we plead and pretend like we, you know, we have the best case in the world, but she suggested that we, you know, we- we be ready to, obviously, deal with those issues. Um, the other thing that they raise, which was interesting, is the fact that the-the-the Tribunal would very much like, um, firms to involve young lawyers in matters before the Tribunal, and to take the opportunity to divide issues between different counsel on the same team. Um, and they've also highlight-- Justice Little highlighted the fact that there's active case management at the Competition Tribunal and that is very much tailored to the specifics or-or the specific requirements of each case. Um, and in terms of confidentiality and competition matters, we had a discussion following uh, the, uh, hearing in the mergers and sa-- and Shaw transaction. Um, and uh, Justice Little, uh, spoke to us about the fact that the Tribunal's focus is really on ensuring transparency, legitimacy, and accountability during the process, and that there’s a careful balance between open court principle and the protection of competitive-- sorry, competitively sensitive information. That is a hard word for me. Um, and the Court requires sworn evidence to support confidentiality designations, and the Tribunal will obviously apply the principles of Sierra Club and Sherman Estate
13:59.84
PDB
cases from the Supreme Court when they're dealing with confidentiality issues. And the-the judges also came back on two aspects that we had talked about during the first panel. One of them was… they wanted to reassure the audience and the practitioners that the judges sitting on the Competition Tribunal were Federal Court judges that had, as such, very vast experience in class actions, and the other aspect that they wanted to reassure the audience about was the fact that section 34 of the Competition Tribunal Rules provides that: if a question, as to practice or procedure, is not provided for in the Competition Tribunal Rules, the rules and procedures set out in the Federal Court Rules may be followed. So, the gap that the first panel referred to, in terms of the rules and the fact that they may be incomplete, may be filled, by, uh, this solution here. So, that was pretty much the takeaways from that panel and it was great to have the judges with us.
15:01.34
Josh Krane
I agree with that. I thought actually, Pascale, you did a phenomenal job, and it was so nice to have Justice Gagné present in French and Justice Little present in English. It was just really, uh, a model for how the panels went that day and-and frankly, you know, we were so lucky to have so many young people come to this conference. It was really geared toward, um, you know, all the generations of the Competition Bar and I-I actually think young people got so much out of that- that interview. So, was just, um, it was great to have the members of the Tribunal participate in such an open way and really speak to the young people in the crowd. So, um, you know, kudos to you, Pascale.
15:40.34
PDB
Thank you for that, Josh.
15:42.36
counterfactualpod
Indeed, indeed. Uh, Josh, what were the key highlights of the “Abuse of Dominance vs. Unfair Competition: What's the Difference?” panel?
15:52.87
Josh Krane
I mean, that was really our-- I think it was more our-our academic policy panel. We did, um-- we did, uh, have the benefit of having Martin Simard from ISED attend that panel, and he, I think, was very involved in the consultation process on-on the amendments to the Competition Act. I mean, really, like the first panel, I think it raised more questions than it- than it answered. We, you know, we're still trying to see how that new test is going to work. Um, you know what is it- what is it gonna mean when we have, uh, you know, an intent branch and an effects branch. We- we've got this excessive pricing clause now, which we've gotta have to figure out what-what's this gonna mean, how ar-- how do we know that prices are excessive or unfair? Who are we gonna target? Is this just gonna be a matter of-of sort of private dispute, or is the Competition Bureau gonna intervene? For me, I think the key takeaway, um- uh, from this panel and-and, we're thinking about the first panel, is that um I think we're going to see a lot of
16:57.59
Josh Krane
B2B use, so business-to-business use, over some of these new provisions. That's where I think we're going to see more expansive litigation and disputes and then it's gonna be, uh, you know, I think we're gonna have to-to see what's going to happen on the B2C side or the class action side. I-I agree with Pascale that there's just so much uncertainty over process that there's a lot of risk to the first, uh, you know, to the first law firm that decides they're going to take a- a class case under the new abuse of dominance provisions. But I do- I do, uh, I do think that there was a lot more focus on the-the business-to-business relationships, so where-where-where companies are facing a gatekeeper or a roadblock, you know, they-they-they do have this avenue now, and maybe it wasn't intended by the legislation, which is really designed to sort of get at grocery prices and everything else, but-but I-I-- I think that the key takeaway for me is that businesses that are facing a roadblock are now going to have a new avenue to try to get some relief, and maybe some quicker relief if the Tribunal doesn't fill up with cases. Uh, um you know quicker relief than they might get in Federal or Superior Court.
18:06.64
counterfactualpod
Great, uh, thank you. And, uh, last but certainly not least, the closing session: “Merger Review: Does Competition Law in Canada's Foreign Investment Review Enable or Hinder Innovation?” Josh, tell us a little about the key highlights of that session.
18:22.49
Josh Krane
Well I-I-I think again, we were-we were delighted to have a fantastically diverse panel. I mean, I, uh, I-I give kudos to, uh, Senior Deputy Commissioner Jeanne Pratt for being, you know, the-- I don't want to say the token government representative on the panel, but the only government representative on the panel, who sort of had to wear all of, uh, the Canadian government's policies, uh, in the face of some, uh- some-some interesting points made by two, um, you know, two, uh, experienced private equity lawyers: uh, a technology lawyer in Scott Rozansky, who moderated that panel, and of course David McFarlane, who used to work, um, for ISED, and now, you know, works as a consultant on the private side. So, you could see the sort of-- the clash, um, on that panel, between, uh, the private sector, which is saying, you know, let us do these deals. We want to close, we want to get the financing, bring in capital. And, uh, poor Jeanne, that's saying, you know, we gotta do our job, we gotta make sure the competition is protected and our colleagues in the Foreign Investment Office need to make sure that there are, you know, uh, precautions taken to protect Canada's national security. So you-you really could see the tension at the end of the day
19:37.39
Josh Krane
between government and the private sector. And of course, you know, we're all-- we all want to get to the right result. It's just a matter of, uh, how much focus are we going to put into the regulatory process and how complicated do we- do we want to make this? And um, you know I-I hope that the government officials that were sitting in the room at the end of the day could get a sense of some of the frustration that was being felt by the business community about how long some of these reviews can take and, uh, you know, ultimately, you know, the-the threats facing Canada, I think are, you know, they were military threats facing Canada we have, uh, interference with our foreign, uh-- foreign interference with our elections. Like, it was almost a, “give me a break,” kind of a- kind of a position when we're talking about, uh, foreign direct investment and um, you know mergers in the tech space.
20:27.70
PDB
And-and Ian, if I can add, um, Josh put together an amazing panel and it was very interesting because they were so transparent and outspoken about what they felt. This was not a politically correct panel and it was great because it didn't have to be, right?
20:41.29
Josh Krane
No.
20:43.48
PDB
But you f-- you could feel their frustration. It was-
Josh Krane
Yeah.
PDB
It was-- yeah, it was extremely, uh, insightful, I think I want to use as a word, so, uh, and interesting, and-and, you know, I mean, if-if-if-- some things will probably have to change for them to- to be conte-- because some of them were very discouraged about the future.
21:02.66
Josh Krane
And about investment in Canada, at the end of the day. I mean, one of the questions came up about, why would you want to invest here? And-and of course, you know, we want investment here. So the process has to be smooth, it has to be transparent and it has to be timely and if we're not seeing that from our regulators, it’s
21:21.71
Josh Krane
gonna be a big deterrent for companies and for our own pension funds and investment funds that are looking to do deals. They're-they're gonna look to make investments in places where, you know, they want to attract capital, and I'm hoping that that message came through and that those of us, you know, on the other side of-- in Ottawa can-can sort of hear those messages loud and clear and encourage, you know, greater capital flows into Canada, which we desperately need.
21:49.91
counterfactualpod
Well, thank you. Uh, Pascale? Uh, any last words or parting thoughts?
21:54.13
PDB
Sure! I-I think that Josh and I were absolutely thrilled. Well, first of all, we were completely sold out. There was a waiting list. Uh, we were thrilled to have you in Montreal. Uh, and, uh… and, uh, this was, uh, this was a lot of work, but it’s extremely rewarding, and I wanna thank Josh for the extremely hard work he did with putting the panels together and finding the speakers in the subject and all that, and it was a pleasure to do that with him.
22:23.51
counterfactualpod
Josh, anything to add?
22:24.43
Josh Krane
Yeah, I want to echo those comments. I-I, uh, you know-- Pascale and I hadn't really had the chance to work together at all before this conference, and so, I was delighted to, um- to have a conference co-chair and to, you know, make a new friend, and to have a new colleague, and to sort of see the passion that's come out of Montreal and-and, you know, we sometimes in the Bar, uh-- maybe it's a bit Toronto-centric, but you can really tell from the audience how much engagement there was from outside of Toronto and I do hope that the CBA section looks to, um, repeat this success in future years and maybe find opportunities to hold these events, um, uh, in Quebec or-or maybe in other parts of Canada where there's- where there's interest. So, I-- from a, you know, I-I think we-we-we ran this experiment and it turned out to be a real success and-and I'd like to give a lot of credit to Elisa Kearney, um, and the CBA section executive for taking the risk and giving,
23:25.91
Josh Krane
you know-- taking a risk on us for trying something really new and really innovative, and, uh- and I think it was a real real success. So, I'm optimistic, uh, that we can- we can do something equally good in future years.
23:41.87
counterfactualpod
Well, Pascale, Josh, uh, thank you both for organizing such an excellent conference. It was absolutely worth the, uh, trip to Montreal, um, from my perspective, uh- and, uh, followi-following it up with, uh, these highlights for the Counterfactual paus-podcast. Thanks.
23:54.98
PDB
Thank you. Thank you, Ian.
Josh Krane
Thank you, Ian.
PDB
Thank you, Josh.
Josh Krane
Bye-bye.