Law Times

Law Times • sepTember 19, 2016 Page 9 www.lawtimesnews.com Bureau active as mergers have increased: lawyer Competition commissioner targets business outreach BY JIM MIDDLEMISS For Law Times N ot too many people can claim to have worked for one employer over their career, but John Pecman can. Pecman, Canada's commis- sioner of competition, has spent more than 30 years working at the Competition Bureau, hold- ing jobs in every major branch, from mergers to enforcement and fair practices. When he was appointed top competition cop in June 2013 and undertook the task of re- structuring the Bureau, Pecman, who had worked for seven previ- ous commissioners, said he had a good insider's view of what he thought needed to be done. Pecman said he did some "cherry picking of some of their [former commissioners'] better practices" and he reorganized and streamlined the Bureau, taking it down to four divisions from eight. It's one of a number of chang- es he has brought to the Bureau. Pecman, an economist by training as opposed to the more traditional lawyer role that most commissioners have held, said one of the things that struck him as an investigator when it came to enforcement and going to the court or the Competition Tri- bunal was "how imperfect that process was, and how inefficient it was to improve the economy and eliminate anti-competitive practices quickly." So while still maintaining a strong enforcement culture, Pecman has adopted a more "holistic approach," which in- cludes more outreach, advocacy and providing guidance on vol- untary corporate compliance programs. It's about building a more "open, transparent and collab- orative" competition cop. Think of it as community policing for the corporate world. "We will be speaking more directly to the business commu- nity," he says. "The legal com- munity might not see as much of me as they have in the past." That's not to mean enforce- ment will take a back seat. In fact, the Bureau has been successful recently on a number of fronts. A 2013 Bureau investigation re- sulted in auto parts firm Yazaki Corporation pleading guilty to participating in a bid-rigging conspiracy and was fined $30 million by the Ontario Superior Court of Justice. It's the largest fine imposed by a court in Cana- da for a bid-rigging offence. The Bureau has also had tre- mendous success in busting up a gasoline cartel in Quebec, secur- ing guilty pleas or convictions against 33 individuals and more than $34 million in fines. In terms of advertising, the Bureau continues to chase down companies over deceptive ad- vertising and labelling practices. But it's bread and butter re- mains mergers, and on that front, things are hopping. "The number of strategic mergers and consolidation in various sectors is increasing at a rapid pace, particularly in tradi- tional sectors," he says. Paul Collins, head of the competition and foreign review practice at Stikeman Elliott LLP, said the Bureau "has been very active," as mergers pick up steam. "There has been a fairly sig- nificant uptick in both quantity and complexity," says Collins, who once headed the mergers branch at the Bureau. "There's been a lot more stra- tegic mergers." The Bureau has also begun to publish annual strategic plans, and it has established a three- year strategic vision, setting out its priorities, among them increased compliance, competi- tion promotion and more col- laboration with its partners. Cal Goldman, a former com- missioner of the Bureau who now chairs the competition, an- titrust and foreign investment group at Goodmans LLP, noted that the Bureau has a lot on its plate. "One of the questions is whether the Bureau is ad- equately equipped to handle the many changes that are oc- curring across a wide range of markets, especially markets that are evolving quickly," he says. "They may need more resources to handle the challenges of a digital age. It's a critically im- portant area for Canada's com- petitive growth." When it comes to resources, Pecman says, "Ask any law en- forcement agency and they will tell you they could use more." But he realizes that's "not in the offing given the austerity" that the federal government faces. Pecman manages his re- sources the best he can by triag- ing cases and working with oth- er regulators. He hopes the move to more outreach and education will help. On that front, Gold- man says the Bureau's efforts at building out a corporate compli- ance program have been helpful. "It outlines with some speci- ficity the requirements as seen by the Bureau for a credible and effective corporate compliance program." Stikeman's Collins says one thing he has seen is an annoy- ing increase from the Bureau in supplementary information requests, some of which he feels "have been too all encompass- ing." Collins questions if that's a result of the Bureau being over- worked, and he is concerned there is a danger of sliding into the U.S. model, where secondary requests for information are routine, add- ing to a merger's red tape. "It's something I hope they are mindful of," he says. Collins adds that the Bureau has also been very active in strik- ing agreements with competi- tion authorities in other juris- dictions and noted that Canada is well respected internationally in the competition field. Collins sees merit in such agreements, and it's something that Pecman stresses is impor- tant, but Collins says contacting other jurisdictions in mergers should be the "exception" and not the rule. One area in which Collins sees great potential for the Bu- reau is to provide input into pub- lic policy, and he lauds its efforts on that front. "They really get to know and understand industries," he says, adding, "I defy you to name an industry that the Bureau hasn't looked at. "They are very good at that," adds Collins. As governments develop eco- nomic policy and regulations, Collins says, the Bureau is well positioned to comment and ad- vise on the impact. "I think from a policy per- spective, they can add a lot," he says. LT FOCUS John Pecman says the Competition Bureau 'will be speaking more directly to the busi- ness community.' THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES NEW EDITION Perfectbound Published December each year On subscription $80 One time purchase $83 L88804-764 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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