Remarks by John Pecman, Commissioner of Competition

CBA Fall Conference

Ottawa Convention Centre, Ontario

October 3, 2013

(Check against delivery)


Thank you for having me this afternoon. It’s a pleasure to be here today.

We’re trying out a new format this year — instead of the usual speech, I’m going to begin with a few brief remarks and then we’re going to move to a more interactive approach, one where Brian Facey and I will engage in a less formal Q&A session.

So with that, I want to provide a short update on some recent developments at the Bureau.

Shared compliance

If you’ve heard me speak in the last 12 months, then you’ve heard me speak about my vision to build a "Bureau without borders" — one where our enforcement reach is not strictly limited by resources or constrained by international or domestic jurisdictional boundaries.

One important aspect of a "Bureau without borders" involves collaborating with our stakeholders to promote compliance with the Act. All of us — the Bureau, the legal community and the business community — have the responsibility to promote compliance with the Act:

  • The Bureau promotes compliance through a wide variety of tools, such as publications, advocacy, suasion and enforcement.
  • The legal community promotes compliance by making clients aware of their obligations under the Act.
  • The business community promotes compliance by putting in place and following credible and effective compliance programs.

This is something that I like to call "shared compliance".

Through shared compliance, we can achieve immeasurably more than we ever will alone, to the benefit of consumers, business and the economy.

For example, shared compliance helps ensures "fair play" in the marketplace, which levels the playing field and results in increased economic development. This is just another example of the whole being greater than the sum of its parts.

A good example of shared compliance since I have become Commissioner involves the recent variation of the Consent Agreement with Interac. In this case, the parties worked together throughout the variation process, including drafting a joint response to questions received from the Tribunal. Interac also volunteered further compliance measures to address concerns raised by the Tribunal.

Regarding our credit card file, while we recently decided not to appeal the Tribunal’s ruling; but instead, to focus our efforts on identifying alternate means of addressing the competition issues in the supply of credit card services in Canada, I remain hopeful that we will be able to work collaboratively with Visa, MasterCard and others in the credit card industry towards a result that is beneficial to both Canadian consumers and merchants alike.

Another good example of shared compliance is our recent Consent Agreement with Agrium, which will preserve competition in the retail supply of certain fertilizer products in Alberta and Saskatchewan.

And there are many other examples of shared compliance over the past year including:

  • The Consent Agreement with Air Canada and United / Continental (Mergers)
  • The Consent Agreement with Waste Management and RCI (Mergers)
  • The Consent Agreement with BCE and Astral (Mergers)
  • The Consent Agreements with Hyundai and Kia (FBPB)
  • The guilty plea by Hershey in the chocolate matter (CMB)
  • The guilty pleas by Yazaki and Furukawa in the motor vehicle components matter (CMB)
  • The guilty pleas by Cathay and LATAM in the air cargo matter (CMB)
  • The guilty plea by JTEKT in the bearings matter (CMB)
  • The guilty pleas by Valérie Houde, Sylvie Fréchette and Martin Proulx in the Octane Quebec matter (CMB)

Further, in order to promote my objective of shared compliance, the Bureau will be updating and rebranding its Conformity Continuum and Compliance Bulletin.

To that end, I am pleased to announce that we will be establishing a working group to solicit views on our approach. We look forward to collaborating with the CBA and other stakeholders on this very important initiative.

Since assuming the role of Interim Commissioner last fall, I have reiterated in almost every speech that transparency, certainty and predictability are essential to our future success.

In fact, I identified applying our laws in a transparent and predictable manner as one of our key priorities. I also indicated that one of the ways we would be delivering on this was through a Transparency Initiative.

At the Spring Forum, as part of an effort to deliver on that priority, I announced the details of our Action Plan on Transparency. Part of this plan included a commitment to continuing to consult on important issues and to develop guidance on investigation and stakeholder communications.

Today, I am pleased to announce that we are releasing a draft bulletin on Communication during Inquiries for consultation.

This bulletin provides an overview of how we typically communicate during an inquiry with the parties under inquiry, with other stakeholders, and with the broader public.

Our short term goal is to receive input that will assist us in identifying potential areas where our communication efforts during an inquiry could be better.

Our long term goal is to promote the development of a more transparent, efficient and responsive agency.

The consultation will run until the end of the year, with a view to issuing the final bulletin early in the New Year. We are inviting comments from all Canadians and would encourage interested parties to provide their thoughts.

Confidentiality Bulletin

We recently updated our Confidentiality Bulletin, which outlines our approach to the communication of confidential information obtained in the course of the administration and enforcement of the Competition Act.

This update was necessary to reflect amendments to the Act, as well as changes to how we conduct our work, including the creation of the Merger Registry and the introduction of our Criminal Cartel Whistleblowing Initiative.

Updated Immunity & Leniency FAQs

On the subject of our Immunity and Leniency programs — you will likely have noticed that we have updated the FAQs to our Immunity and Leniency programs.

We updated these FAQs to address a variety of additional topics, to bring them in line with current practice and to align the language in them. And, in keeping with our collaboration initiative, we consulted extensively with the CBA.

The FAQs address new topics, such as how the Bureau treats immunity and leniency markers in the context of investigations we do not intend to pursue, and expand on and clarify existing topics, such as how we determine fines in the context of bid-rigging and international market allocation agreements.

These FAQs, coupled with the Immunity and Leniency bulletins, provide a comprehensive picture of our approach to immunity and leniency applications, which are among our most powerful tools to combat anti‑competitive agreements.

Advocacy

As you may have noticed, last month we launched a public consultation to gain insight from Canadians about where they believe the Bureau could play a targeted role in advocating for greater competition.

This is a follow-up to our commitment to increase our use of strategic interventions.

I have been clear that I believe we have an important role to play in advocating for more competitive markets in Canada.

We will continue to advocate to regulators and policy makers that they regulate only where necessary and that they rely on market forces as much as possible to achieve the benefits of competition.

This consultation is intended to inform that work. We will continue to receive feedback until November 8, at which point we will gather the input that we have received and assess potential projects.

And, in doing so, we are going to ask the following questions:

  • Will our efforts have clear, tangible benefits for consumers?
  • Will we be contributing in a useful way?
  • Does an effective forum exist for the Bureau to present its findings and is there a high level of interest from consumers?
  • Will we be able to gauge the impact of our advocacy efforts?

We have had great feedback thus far and I invite all those interested to access our online advocacy form.

Process for selecting NGA’s to ICN

Now before I close things off today, I want to say a little bit to those of you who are hoping to ride the "Marrakesh Express" to the next ICN Conference in April: there’s going to be a bit of work ahead for you before you board that train.

As you know, the Bureau is limited in the number of non-governmental advisors that it can invite to the conference and we have, in fact, exceeded our limit in recent years. This is partly due to our less formal approach to selecting invitees. Going forward, this is going to change.

We will be implementing a selection process that will look at four factors that will include things like whether the candidate plays an active leadership role within the ICN or a working group or has a specific role at the ICN event.

We will also look at ensuring a fair rotation of representatives and ensuing diversity in the representation among all stakeholders.

I would strongly encourage interested parties to make use of the NGA toolkit that has been provided to all stakeholders in the competition law community.

Now without further ado, I think we’re going to move to the Q&A session.

Thank you.

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