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50 www.canadianlawyermag.com • administration and enforcement tools that increase the efficiency of competition law A Norton Rose Fulbright Canada LLP report on the possible changes says the proposals to lower the burden of proof and create presumptions of anti- competitive behaviour make "little refer- ence to the importance of preventing over- enforcement." And while the government's desire to review the act and Canada's competition law framework is well-intentioned, "It is critical to ensure that the desire to make change is informed by facts and sound policy objec- tives, as opposed to making change for change's sake." Navin Joneja at Blake Cassels & Graydon LLP says that the proposed changes are directed at expanding the powers of the Competition Bureau, including the ability to conduct general market studies before any particular issue or complaint has been made. "I think there is a risk that it goes too far. And part of the conversation now is whether competition law should be addressing areas such as privacy and data, labour, and even, to a certain degree, environmental standards." He adds that Blakes' submission on the bureau's discussion report focuses on the need for changes based on evidence and "actual cases and problems." He says compe- tition laws are best used when "there is a predictable and analytical framework, so if we are considering competition law reform, it shouldn't be too open-ended, too unpre- dictable, too broad, and bring in other factors that are maybe a bit more discretionary and harder to get your arms around." Joneja's colleague at Blakes, David Dueck, expresses a similar sentiment. In considering potential changes, he says, "The Canadian government should be mindful of the risk of potential over-enforcement because, in many cases, activities can be pro-competitive or anti-competitive, depending on the circum- stances. The risk, if there's no predictability or no certainty for Canadian businesses about what is pro-competitive or anti-competitive, what's covered and what's not covered, is that over- enforcement can potentially chill activity that could actually be pro-competitive, and that's ultimately not good for society as a whole." As for the efficiencies defence – when a COMPETITION BUREAU PERFORMANCE STATISTICS LEGAL REPORT Sources: ised-isde.canada.ca/site/competition-bureau-canada/en/copetition-bureau-performance-measurement-statistics-report-2021-2022#highlights-term1-box2 COMPETITION The discussion paper asked for responses by March 31 to several areas of competition law. These include: • merger review, such as pre-merger noti- fication rules, extending the limitation on the review period for non-notifiable mergers to three years or tying it to a voluntary notification regime, easing the conditions for the commissioner to obtain interim relief in challenging mergers; restricting the application of the "efficien- cies defence" and revising the standard for a merger remedy to better protect against prospective competitive harm or account for labour market effects • abuse of dominance provisions • competitor collaborations • deceptive marketing tools addressing modern forms of business, possibly in the form of better defining false or misleading conduct Infrastructure cases Digital economy cases Health cases Finance cases Telecommunication cases Commenced 31 16 15 7 2 Closed 28 10 12 7 2 "Part of the conversation now is whether competition law should be addressing areas such as privacy and data, labour, and, even to a certain degree, environmental standards" Navin Joneja, Blakes Cassels & Graydon LLP Enforcement cases – key areas (merger and non-merger enforcement), October 1, 2021 – March 31, 2022