Law Times

LAW TIMES 10 COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 25, 2019 www.lawtimesnews.com BY JULIUS MELNITZER For Law Times T he first half of 2019 should see the appointment of a new commissioner of com- petition, a development that will shape the Competition Bureau's direction and priorities for at least the next five years — all the more so because competi- tion law is undergoing a global rethink again. "About every 15 years, people start questioning the purpose of competition law," says Brian Facey, the Toronto-based chair- man of Blake Cassels & Graydon LLP's competition, antitrust and foreign investment group. "Some people think it's about competition law and economics, some think it's about wealth and employment and some think it's about social issues like the envi- ronment." The debate ranges from the populist antitrust policies of Columbia University profes- sor Tim Wu, who espouses a "noneconomic value" approach, which he claims trumps consid- erations of overall efficiency, to those who seek reforms that will make consumer welfare and in- terests integral to the purpose and mandate of competition law and to those such as George Addy and Anita Banicevic, competition lawyers in Da- vies Ward Phillips & Vineberg LLP's Toronto office, who seek a more non-intrusive regulatory approach to better promote in- novation in our age of digital disruption. Addy, senior counsel in the competition, antitrust and for- eign investment group at Da- vies' Toronto office, who led the Competition Bureau from 1993 to 1996, says he is deeply con- cerned that the speed and depth of technological disruption will provoke overreaction from reg- ulators. "I liken it to what happened with the Y2K scare," he says. "I'm not sure that the antitrust authorities getting on the regu- latory bandwagon understand how the digital economy works or the implications for the Ca- nadian economy, and I do hope that we don't get into a process where regulators start seeing themselves as experts on how the digital economy works." That is not to say that the Competition Bureau doesn't have a role in the new economy. "My concern is that the bu- reau didn't even define their role before throwing resources at the issue — even as they're unable to meet their own internal guide- lines for processing merger re- views in a timely fashion," Addy says. Banicevic, also a competition and foreign investment review partner in Davies' Toronto of- fice, points out that the bureau even seems intent on forging into issues that are the province of other regulators. In September 2017, for ex- ample, the bureau issued a draft discussion paper entitled "Big Data and Innovation: Implica- tions for Competition Policy in Canada." The paper outlines the Com- petition Bureau's preliminary views on how it will approach data-related considerations in a number of areas. "From a privacy perspective, it appears that the bureau may be seeking to apply the mislead- ing advertising provisions of the Competition Act to privacy- related statements that mislead consumers into disclosing per- sonal information or buying products and services," Banicev- ic says. The conundrum is that col- lecting personal information without consent is already under the purview of the federal pri- vacy commissioner appointed under the Personal Information Protection and Electronic Doc- uments Act. "In other words, there's al- ready a specialized regulator in place that is examining these issues and is committed to up- dating its compliance guidance in this arena," Banicevic says. "When overlap occurred in the past, the bureau has deferred to the more specific mandates or expertise of other regulators." However that may be, the Competition Bureau empha- sized in its most recent annual plan that the digital economy will remain an important prior- ity area both from an enforce- ment and policy perspective. As things stand, recent data from the bureau notes that it conclud- ed 10 digital economy cases be- tween April 1 and Sept. 30, 2018 and had 27 more ongoing at the end of that period. "I believe this trend will con- tinue throughout 2019 and like- ly beyond," says Facey, who notes that the bureau is set to appoint a new chief digital enforcement officer soon. "I also expect that this think- ing will evolve into new investi- gations and likely enforcement activities in areas like mislead- ing advertising, mergers that involve acquisitions of startup technology companies and po- tential big data issues." What's clear is that the new commissioner, who has signifi- cant discretion to investigate and bring enforcement actions in Canada regarding mergers, criminal conspiracies, abuse of dominance allegations, mislead- ing advertising and other areas, will set the agenda for the Com- petition Bureau. "It will be interesting to see how the new commissioner in- tends to tackle the key competi- tion issues of the day — use of big data, consumer protection in a digital age and heightened Brian Facey says that, 'about every 15 years, people start questioning the purpose of competition law.' Future of Competition Bureau yet to be charted FOCUS See Different, page 12 Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit www.canadianlawyermag.com/newswire-subscribe THE LATEST NEWS Keep abreast of essential late-breaking legal news and developments. 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