New competition commissioner needs vision

The federal government is searching for a new competition commissioner following the retirement of John Pecman and appointment of an interim commissioner.

Lawyers say the decision of who fills the post on a permanent basis is crucial for the future direction of the Competition Bureau.

On May 31, Matthew Bos­well was named as the interim competition commissioner for a term that could be up to one year. Boswell is a former Crown attorney who later served as senior litigation counsel in the enforcement branch at the Ontario Securities Commission before being recruited to the Bureau in 2011. In 2012, he was named senior deputy commissioner of cartels and deceptive marketing practices, and in July 2017, he began a one-year assignment as senior deputy commissioner, mergers and monopolistic practices, before being named interim commissioner.

Boswell was not available for an interview with Law Times by deadline and did not indicate whether he has applied for the position on a permanent basis.

However, regardless of who fills the role on a permanent basis, Subrata Bhattacharjee, a partner with Borden Ladner Gervais LLP in Toronto, says the new commissioner can’t be afraid to bring cases, even if they lose the case, because everyone is better served by the guidance from the courts or the competition tribunal as to how it views certain issues.

“You don’t want them to bring reckless cases, because the impact on the market can be profound in the case of enforcement error, but you do want vigorous and principled enforcement,” says Bhattacharjee.

Melanie Aitken, Washington managing principal with Bennett Jones LLP, who was competition commissioner from 2009 to 2012, says that whoever is chosen should be a lawyer because the Bureau is a law enforcement agency.

“You’re bucking up against an oligopolistic community in business Canada that doesn’t like to be told what to do,” says Aiken. “When the act is violated, you have to have a lot of courage to advance and protect the public interest against the very powerful private interests out there [that] are accustomed to controlling the regulatory worlds around them.”

Aitken says the new commissioner needs to have a vision for what they want the Bureau to do as opposed to just maintaining the status quo, as it has retreated somewhat in recent years. She adds that there needs to be a renewal of the intellectual capacity in the Bureau, which means bringing in new talent.

Huy Do, partner at Fasken Martineau DuMoulin LLP in Toronto and vice chairman of the competition law section of the Canadian Bar Association, says having a commissioner who really understands competition policy and enforcement is key for the Canadian economy.

“From our perspective in the bar, the biggest thing we want is predictability in what to advise clients on how the Bureau and the commissioner will react,” he says.

Do adds that whoever the commissioner is, they need to be the spokesperson for competition policy within the government, which means having good relationships with the bureaucracy in order to know how and where to look for funding and what drives the decision-makers.

While Do says he would like to see the current trend of balancing between advocacy and enforcement that began under Pecman to continue under Bos­well’s watch, Aitken says she would prefer a greater focus on enforcement over advocacy, which is where the pendulum has swung in recent years.

“There was a time where there was a lot of focus on enforcement — we need that because we don’t have a lot of jurisprudence otherwise and there are still some ambiguities in the law,” says Do. “Just litigating to get new law in and of itself is not a good reason — there have to be economics behind it.”

Aitken also highlights the need for a commissioner to build relationships with not only the bureaucracy but also the private sector and the bar, given that it becomes easy for the Bureau to become insular when it interprets its independence too rigidly.

Bhattacharjee says that whoever the new commissioner is, they need to have a nuanced understanding of how competition law and policy interacts with other regulatory spheres, whether they are federal trade and investment policy or telecommunications and areas subject to a tight regulation, as well as provincial and even municipal spheres over issues such as ride sharing.

“The Bureau has to appropriately assess how those regimes work in order to do its job,” says Bhattacharjee.

When it comes to the priorities of the new commissioner, Do says that, relative to other agencies, the Bureau is underfunded.

Aitken agrees that more resources and a renewal of the Bureau’s intellectual capacity should be the top priorities. Once those have been accomplished, she says, she would like to see a greater will for enforcement in compelling cases, followed by the commissioner seeking some amendments to the Competition Act, particularly around issues such as efficiencies and the fact that there is no civil provision to address anti-competitive agreements between vertical players.