Canadian Lawyer

May 2023

The most widely read magazine for Canadian lawyers

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Page 49 of 67

48 A new discussion paper has lawyers asking if the Competition Act can address the issues driving the proposed changes, writes Zena Olijnyk Defining a new path for competition law A DISCUSSION paper on possible changes to the Competition Act is attracting attention from the legal community practising in this area. Many lawyers question how the issues the changes hope to address can be handled through the lens of competition law. In No v e m b e r, Fra n ç o i s - P h i l i p p e Champagne, the federal minister of Innovation, Science and Industry, put out a consultation However, "It does little to tie these problems, to the extent that they are true problems, with the need for reform to the Competition Act. For instance, no thoughtful analysis suggests that the infla- tionary pressures Canada and much of the world is experiencing are a result of antitrust issues. Nor growing economic inequality – and indeed, the evidence … On the new suggestions, one recent anal- ysis of the latest proposed changes, put together by McMillan LLP, puts the critics' views this way: "By way of justification for possible changes to the Competition Act, the [ISED] discussion paper notes, amongst other things, concerns about affordability and the cost of living, market concentration, the emergence of digital giants, and inequality." LEGAL REPORT COMPETITION suggests that Canada, as opposed to some other societies, is not experiencing mean- ingfully increased economic inequality." As well, the McMillan paper says, "nor indeed is there any conclusive evidence for increased market concentration," as there has been a rise in large digital firms, lots of entry, much change, innovation and disruption, but no clear evidence of any antitrust problem if we define antitrust problems as we tradition- ally have – as related to consumer welfare." It adds that a cynic might suggest "that we are considering upending a significant framework statute, which has served Canada well because it is a trendy thing to do, the neighbours are doing it, and change is in the antitrust zeitgeist" – not necessarily because "a thoughtful case has been articulated for the desirability of such wholesale change." "Over-enforcement can potentially chill activity that could actually be pro-competitive, and that's ultimately not good for society as a whole" David Dueck, Blakes Cassel & Graydon LLP on the future of competition policy in Canada to hear Canadians' views on broader changes to Canadian competition legislation. The consultation comes after significant amend- ments to the Competition Act came into force in June 2022 through an omnibus bill. Critics suggested that this process allowed for no meaningful output from outside stakeholders during the legislative process.

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