Speaking Notes for Melanie L. Aitken, Commissioner of Competition

Canadian Bar Association, Competition Law Section, Annual Conference

Gatineau, Québec
Friday, September 25, 2009

(Check against delivery)

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Thank you Shawm for the kind introduction. And let me thank Jay and his committee, as well as the CBA executive, for putting together a stimulating conference.

While necessarily these are early reflections, I intend to lay out three priorities I see as important to embrace as I embark on the next year of my five–year term. I also want to use this occasion to encourage all of us to ensure that we seize this opportunity – a new chapter in the economic life of Canada, a new Competition Act, even a new Commissioner – to promote a respectful and constructive dialogue that results in the most effective possible application of Canada’s competition law, in the best interests of all Canadians.

My first priority, then, is to find ways to continue and to extend our dialogue with the community external to the Bureau – Canadian businesses, consumers and, of course, their legal advisors. Such exchanges of views, and collaborative projects where appropriate, are essential to realizing a key goal of mine – to lead a Bureau in which all Canadians can have confidence that we have not only the will, but the understanding and nuanced perspective to be a vital economic driver to a more competitive marketplace, and a more prosperous Canadian economy.

Of course, as to the Bar constituency, what better venue to talk about the importance of co-operation than this Conference. I think that, increasingly, I’m preaching from the converted to the converted when I say that we each benefit enormously from the information and insights, about real conditions in the business community and the drivers of competition policy and enforcement, that get shared in the exchanges at this conference.

I must say that, if this were just a once-a-year occurrence, we would have reason to be worried. Business conditions can change almost overnight, as the events of the last year have starkly reminded us. And while, as we discussed yesterday with our international enforcement counterparts, we at the Bureau must remain steadfast in our adherence to the principles of the Act, we must do all we can to also understand the perspectives and the particular issues with which businesses are grappling

We must be mindful of how those pressures can intensify tensions with our commitment to the unwavering and consistent application of antitrust principles, if we are to meaningfully contribute to the prosperity of Canadians by ensuring competitive markets.

Many of you know my background, which is as firmly rooted in the deals and rhythms of Bay Street as it is in the government corridors of Ottawa-Gatineau. Perhaps this is no surprise, and I’m hardly alone in having had this opportunity – one which is so common in the U.S. – but I firmly believe that this experience gives me a valuable perspective as we confront the challenges ahead of us. I understand, viscerally, that business craves certainty, but also recognize – as you all do – that "certainty" is simply not always possible – or even desirable. Our departure from rigid presumptions to effects-base analysis is something I expect we could all agree was a very positive step! Still, I share the conviction that one shouldn’t 'get off' that easily, and that there is a responsibility as a law enforcement agency to do all that we can to clearly demarcate the lines of acceptable conduct. That, and the knowledege that reasonable and well-informed people will be on the other side of the table, is I trust a close second for all of you and your clients.

I dare say we have done good work together already advancing a better understanding of the rules of the game, and where the lines can be drawn between legitimate conduct and behaviour that engages the Act. And the product catalogue of our joint work is expanding almost daily! Bar-Bureau collaboration on guidelines and other policy documents has never been better, in my view. This relationship, built carefully over a series of initiatives, was stress-tested as never before by the March 2009 Budget amendments, but it has survived the test and – as can be the case where the goodwill and shared purpose is genuine – it is even stronger now.

By way of example, most recently we have completed a major consultation on our abuse of dominance provisions. A number of you were present in town on Sept. 18 for the abuse roundtable, which will inform the guidelines we are working on.

Still, there is more we at the Bureau can do. To that end, I intend to continue with and build on the meetings held with business and other groups this past spring to ensure the business community appreciates our role and relevance as they strive to compete, and to make sure we understand the perspectives of our business community in particular even better.

This is an ideal segue to my second priority. That is: the effective, transparent and efficient implementation of our new laws.

Immediately upon the passage of the amendments, we recognized the need for guidance in the two areas of greatest change. And so, in addition to general consultations and outreach to multiple constituencies, we worked quickly and consulted extensively on the merger and competitor collaboration guidelines. As you know, we released the Merger Review Process guidelines last week in final form and we plan to publish final competitor collaboration guidelines later this fall.

I must say that – harking back to my first priority – we are indebted to the contributions of time and expertise from many in this room, and our American and other foreign counterparts and colleagues, including from Ilene’s ABA section. We could not have produced the quality documents we have without that input, which in my experience was offered freely, constructively, and collegially. It shows, candidly, how far we have come. I’m very proud of the work that has been produced, and I believe we have published guidance that is comprehensive, responsive to the concerns of business and, if I may put it this way, brave, in that we have struggled to draw lines in areas of enforcement policy that have long challenged all of us, and that bristle with difficulty.

At the same time, to most effectively implement the new criminal and agreements provisions, we are working internally to create a process to deal with the dual-track environment the new provision creates. Our goal, when taken in conjunction with the Enforcement Guidelines, is to provide the business community with as much certainty and transparency as early in the investigative process as possible.

I am very pleased to see that the spirit of co-operation has extended beyond the sometimes safe ground of policy documents surrounding the amendments to actual casework. I’m referring to our experience so far with Supplentary Information Requests for merger cases.

In this regard in particular, we have benefited from the views and advice of the US antitrust authorities and practitioners, and indeed continue to work closely with the US DOJ and FTC, sharing information to the extent possible. At the same time, we did not import a U.S.-style approach wholesale, without regard to what can be differences in the Canadian context. As those of you who have worked on transactions with us since March know, the Bureau has made extraordinary efforts – consistent with the new MRP guidelines - to surgically focus our questions and design them from the outset to correspond as much as possible to the context and the record-keeping practices of the parties.

You will have heard of a certain recent large merger in the oil-and-gas sector that tested the parties and counsel, but also us, very squarely. I will simply note with pride that the review, including the negotation and registration fo the Consent Agreement implementing remedies, and one of the most complex undertaken by the Bureau, was completed in under four months. This demonstrates that, with flexibility and goodwill on both sides, much can be accomplished.

Indeed, this is the very sort of made-in-Canada flexibility that the Government talked about in its long-term economic blueprint, Advantage Canada, and again more recently in its Economic Action Plan. Our work is clearly recognized as an important part of the Government’s plan – the document itself transformed the recommendations of Red Wilson’s panel on competitiveness into government policy, putting us on the road to the Act we have today.

This Government wants Canadians to Compete to Win, and it is very much our focus at the Bureau to do our part, through dialogue and outreach with the business community, and effective and efficient implementation of the amendments, and principled enforcement.

Now, just before I stop talking so we can return to the dialogue of this conference, I would like to turn for a moment to my third priority – that is, to ensure that, when we have the opportunity, we bring forward responsible cases to clarify the law. This is not, as you might initially conclude, my past as a litigator poking through! Rather, it is informed by the very same goals that support my firm commitment to a dialogue and collaborative approach with our stakeholders; namely, (1) to develop the best and most principled enforcement policy, with the aid of the courts and the Tribunal; (2) to be as clear and transparent as possible; and (3) to promote competitive markets by deterring anti-competitive conduct in clear and knowable terms. Demonstrating that we will enforce the law – and are undeterred by the fear of losing a responsible case – has no substitute to my mind, as an effective deterrent to individuals and companies considering engaging in anti-competitive conduct.

There are areas of our law that have rarely been tested. We have a responsibility to do our job, to safeguard the ability of business to compete to win. To my mind, that necessarily includes enforcing the law where a violation appears clear and the case is responsible. Honest enterprise needs to know we are ‘on the beat’ and will act if we need to.

Likewise, the transparency that only a court or Tribunal decision can bring is important to business and its advisors. It demarcates the lines between lawful and unlawful conduct, and goes a fair distance to removing the paralyzing influence of uncertainty that can make decision-making difficult, and business often timid – risking, for all of us, the benefits of creative and potentially competitively valuable initiatives.

We must not be intimidated by the fear of losing. It is when the law is unclear or not respected that we all lose. Any decision – even one that, dare I say it, does not favour the Bureau’s interpretation – is ultimately a win for all of us, for it will bring more clarity to the marketplace.

I would be remiss in closing if I did not thank the excellent team of committed individuals at the Bureau who, to a person, have supported our mandate and continue to do so.
They have been the engine over this period of transition, and have embraced the goals of transparency, predictability and measured enforcement with the same enthusiasm that I have. Some of them are joining me on the stage in a moment to answer your questions, and to engage in that dialogue I spoke of earlier.

It has been a pleasure to share my by-no-means exhaustive thoughts on the next few years with you today. We must be flexible on means and, particularly in these times, be creative. But we must never veer from the principle that a free-market economy, where the lines of legitimate conduct are clearly delineated and informed by dialogue, offers Canada and all Canadians the best chance to prosper. I can tell you we intend to work very hard to ensure we are responsive and outward-looking as we fulfill our mandate – one that is important to all of us in this room, and in this country.

Thank you.