Law Times

PAGE 2 NEWS February 23, 2009 • Law Times Debate welcomed — but bill won't be changed Continued from page 1 merger review changes. "There were indications in the Conservative party platform and then the speech from the throne that the government was looking at implementing a fair number of these recommendations," Bodrug says. "We thought that it would be appropriate to stay out ahead of the curve and kind of go on record with their merger review process. "We put it in writing and sent that to the minister and it happened to go out earlier in the week and we didn't know that the Competition Act amendments were going to be part of the budget bill, let alone any specifi c knowledge that the review process was going to be part of that too." The letter laid out the CBA's concerns that the issue of a two-stage merger review process was never discussed as part of hearings into Competi- tion Act changes. If it were it is likely that the government would have heard that the process is anti-competitive. "Most competitive law ex- perts in Canada, the U.S., and elsewhere in the world would agree that the U.S. 'second re- quest' process is excessively bur- densome, expensive, and time consuming," wrote Bodrug, in the correspondence. "After 30 years it has not been adopted as a model in any other country in the world." The concerns were echoed by George Addy, partner with Da- vies Ward Phillips & Vineberg LLP and Canada's former com- petition commissioner. "It increases the power of the bureau, it increases the discre- tion of the bureau," says Addy. that your response to the sec- ond request is complete then the second 30-day period starts at that point." Bodrug says that even if you support the idea of a two-stage review process there is an argu- ment that the legislation needs full and rigorous debate. "This is the most funda- mental amendment to the Competition Act in 30 years," Bodrug says. "In my view it should be taken as stand-alone legislation and examined and considered and exposed to the full kind of committee process in itself. Not lumped in with such a range of other important changes as part of a confi dence bill. "Even if you support the 'It increases the power of the bureau, it increases the discretion of the bu- reau,' says George Addy. "The second request decreases the courts' ability to scrutinize the exercise." Under the second review pro- cess, the competition commis- sioner has up to 30 days to make a second request for information. The clock does not start on the second 30 days until the request has been completed in full. Julie Soloway, partner in the com- petition, antitrust, and foreign investment group with Blake Cassels & Graydon LLP, says the timing is where companies face millions in costs as those in the U.S. currently do. "It could take you three months to comply with the sec- ond request," she says. "These are massive document produc- tion orders. Massive, by the time you get the client orga- nized, the search terms. So it could take two to three months and then once they are verifi ed intent of the legislation there are still details and nuances, it is very technical legisla- tion and there should be op- portunity for consideration." Scarborough-Rouge River Liberal member of Parliament Derek Lee spoke against having the changes included in the budget bill. Lee told the House of Commons changes to the act and other in- cluded changes to the Navigable Waters Protection Act do not ap- pear to have anything to do with economic stimulus, the expressed intent of the budget bill. "These are complicated pieces of legislation on their own and attempting to update them and modernize them in the context of a stimulus package bill would probably be seen as perverse by some and stupid by others," Lee told the Commons. "In any event, the government is either piggy-backing policy changes in this stimulus package or it is doing legislative smuggling by pushing through bills in the back of the ambulance." Lee told Law Times he would support severing the act amend- ments from the budget bill. He added that the changes are so fundamental and sweeping that it is likely that if the Conserva- tive government doesn't parse the bill, the senate will. "I believe it could be severed and I believe it should be severed," Lee says. Storeshaw says the govern- ment welcomes debate on its legislation, but at the end of the day there is no intention to change the bill. "Due diligence that the bud- get bill receives in the House of Commons is obviously some- thing that we welcome," he says. "But we don't intend to amend the budget implementation bill itself." As part of bill C-10, the act will be amended in fi ve key ar- eas. It introduces a dual-track approach to agreements between competitors. The changes provide that bid rigging includes agree- ments or arrangements to with- draw bids or tenders. It repeals provisions dealing with price dis- crimination and predatory pric- ing. It introduces an administra- tive monetary penalty for cases of abuse of dominant position. The fi nal key amendment introduces a two-stage merger review pro- cess for notifi able transactions, increased merger pre-notifi cation thresholds, and a reduced merger review limitation period. LT Politics will always be part of the mix Continued from page 1 The change, plus indexing and increases for subsequent years, would have taken puisne judge salaries to $302,000 by April 1, 2011. The commission recommend- ed a salary of $349,800 retroac- tive to April 1, 2008, for the chief justice of the Supreme Court of Canada and $323,800 for the Supreme Court's puisne judges. Chief justices of the Federal Court of Appeal and courts of appeal in the superior courts of the provinces would have been retroactively increased to $298,300. Indexing and increases would similarly have taken all the salaries to higher levels by April 1, 2011. Dodek says politics unques- tionably played a role in the gov- ernment delay reacting to the Block commission recommen- dations. The Judges Act required a response by last Nov. 30. The government likely had little taste for increasing the sala- ries as an election loomed last fall, no appetite at all for increas- ing salaries during the election period, and found it politically impossible to increase the sala- ries to levels the commission rec- ommended once the economy began a full-scale plunge into recession in October. "Government, of whatever po- Conducting Administrative, Oversight & Ombudsman Investigations litical persuasion, is in no hurry to be seen as implementing salary increases for highly paid judges," Dodek says. "Second, in the midst of an election campaign, everything gets put off." Dodek agrees the delayed re- sponse to the commission report, combined with the eventual deci- sion to ignore the report entirely, could pose a threat to judicial independence. But he says it is not yet at the point where public confi dence in the fairness of the justice system may erode. "I agree with that, but I think André Marin, Ombudsman of Ontario The secrets to investigative success This is a ground-breaking, hands-on guide to conducting investigations of any kind, including regulatory, compliance, workplace, human rights, health and safety, police and military oversight, insurance and Ombudsman investigations. This book sets out the eight principles that underlie effective and credible investigations, discusses common problems that may arise and how to avoid them. You'll learn proven approaches to planning and executing systemic investigations and be provided a benchmark to assess the quality of investigations done by others. ORDER your copy today Perfectbound • Approx. $85 • April 2009 Approx. 390 pp. • P/C 0966010000 • ISBN 978-0-88804-488-4 we are so far away," he says. "I think that the public is engaged only on the level of looking at the bottom-line dollar fi gure of what judges are paid and saying, 'Wow, I wish I was paid that.'" Dodek says it may be neces- sary to replace the commission system, which he argues has de- veloped into a confrontational forum with the entire question under a public spotlight, with a more neutral method of settling salary increases. He cited England as an ex- ample, where judicial salaries are increased at the same time as the wages of senior public servants by an independent board. However, he acknowledges pol- For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice to applicable taxes and shipping & handling. www.lawtimesnews.com JONES_Administrative Oversight (LT 1-3x4).indd 1 2/18/09 10:04:27 AM LT0223 itics will always be part of the mix. "You simply cannot take the poli- tics out of remuneration," says Dodek. "To think you are going to be able to do that is naive." LT through complex scenarios, suggesting strategies "This book is the real thing: a precise, well- way to present them than how it is expertly documented guide that will give investigations both gusto and done here." and approaches based on his experiences. I cannot think of a more Gareth Jones credibility… Gareth deftly convincing and compelling guides readers

• Cover
• Raise Internet Profile
• The Hill
• Focus On International/Cross-Border Law