The Power of Perspectives

The Canadian Bar Association

Kim Covert

Are market studies in the Competition Bureau’s remit?

July 13 2018 13 July 2018

 

This spring the federal Competition Bureau released a bulletin to “describe how market studies are used to promote competition, and to provide transparency to stakeholders regarding how the Bureau selects and conducts market studies.”

The Competition Law Section starts out its response to the bulletin by noting its concerns about the Bureau’s jurisdiction to carry out broad-based market studies, as opposed to inquiries or investigations where competitive concerns have been raised.

“In the absence of clear statutory language giving the Commissioner the power to conduct market studies, a strong argument could be made that market studies outside the circumstances of sections 125 and 126 would be conducted with no legal authority.”

This view is shared by recently retired Competition Commissioner John Pecman, who noted in a speech at a Section conference this spring that the Bureau lacks the formal market study powers needed to be “an effective advocate of competition for Canadian consumers.” Pecman said the Bureau’s study powers fall “below international standards.”

While the Bulletin states that the Bureau could use a market study to examine impediments to competition in an area where they “appear to exist” even when there’s no obvious violation of the Act, the Section says it may not have the authority to do so.

“This suggests the Bureau is not simply using these studies to educate itself but rather, may be looking for potential violations of the Act.” The Bureau will need to ensure the design and scope of any studies are not influenced by bias, it adds.

“To the extent the Bureau takes a broader view of its ability to conduct market studies, it should do so only where it believes there is a clear need,” the Section concludes. “This is especially important given the resources required to conduct meaningful market studies – and competing resources required for matters that fall more clearly in the Bureau’s legislative remit.”

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