The Canadian Commissioner of Competition issues a statement on the application of competition rules during the COVID-19 virus outbreak

Virtually everyone on earth has been swept up in the COVID-19 pandemic crisis [1] and competition authorities are no different. The Canadian Competition Bureau (the Bureau), which assists the Commissioner of Competition (Commissioner) in the administration and enforcement of the Competition Act (the Act), [2] has shut down in-house operations at its Gatineau, QC headquarters, with telephone services unavailable until further notice. This step includes communications to the Information Centre, the Whistle-blowing Initiative, the Tip Line, the Merger Intelligence and Notification Unit and the Media Relations line. Nevertheless, Canadians are still encouraged to submit any questions, complaints, notifications or requests via email and online forms.

Statement from the Commissioner

While the Bureau is officially closed, [3] the Commissioner has made clear it is still functioning. He said in a 20 March 2020 statement:

“As Canada responds to the COVID-19 coronavirus situation, I would like to assure Canadians that the Competition Bureau remains vigilant against potentially harmful anti-competitive conduct by those who may seek to take advantage of consumers and businesses during these extraordinary circumstances. The Bureau will scrutinize any evidence that companies or individuals have violated Canada’s competition laws, including:

  • Deceptive marketing practices, such as false or misleading claims about a product’s ability to prevent, treat or cure the virus; and
  • Collusion by competing businesses, such as illegal agreements about what price to charge for products or services.” [4]

The Commissioner encouraged anyone who might have information regarding potential collusion, false or misleading advertising or any other form of deceptive marketing to contact the Bureau. “We will do everything in our power to crack down on these and any other anti-competitive activities in order to protect Canadians.” He also went to great lengths to assure business that competition laws are in place to assist and promote pro-competitive arrangements that enhance the delivery of affordable goods and services to Canadians. The inference of this observation is clear. It is not open season to destabilise the marketplace, notwithstanding these extraordinary times with a virtual global lockdown, nor to fly ‘under the radar’ to engage in anti-competitive behaviour.

The Commissioner explained:

“We are committed to a reasonable and principled enforcement of Canada’s competition laws, and we will work closely with our partners in federal, provincial and municipal governments, along with the business and legal communities, to navigate these exceptional circumstances for the benefit of all Canadians. The Bureau is actively monitoring the evolving situation and we will provide further information on our enforcement approach as required.”

Commissioner’s open letter to the Canadian Bar Association (CBA) [5]

The Commissioner also sent an open letter to the CBA’s competition law section to offer guidance on how the Bureau will proceed during these trying times. [6] Quite rightly he noted that the health and safety of employees, stakeholders and communities were a top priority, adding that hard copies under staff signature will be replaced by emails for the present time. He also cautioned that service standards may slip with respect to proposed mergers.

“For merger transactions, it is increasingly difficult for Competition Bureau staff to make market contacts in a timely manner since many businesspeople are working remotely, and this may pose challenges for us in meeting our service standards. It may also have implications for complex matters where market contacts may assist our staff in narrowing issues within the first 30 days of a merger review. Parties could also experience challenges in preparing and delivering productions and information to the Bureau during this period. As such, we encourage merging parties to contact case teams and management in the Mergers Directorate as early as possible on complex matters and throughout the conduct of a review.” [7]

If it is not possible to meet service standards, he said the Bureau will attempt to communicate realistic timelines based upon prevailing conditions, but urgent marketplace issues may require immediate attention. “[I]nvestigations that may involve face-to-face interviews with Immunity/Leniency applicant witnesses, the operationalization of solicitor-client protocols, meetings with complainants, and plea or other settlement negotiations may suffer some delays. We will nonetheless continue to advance matters to the best of our abilities, given the circumstances.” [8]

Conclusion

Like others, the Commissioner and Bureau are in uncharted territory as a result of COVID-19. The Commissioner is wisely taking a cautious approach and not ruling out anything in the way of service interruptions, but also attempting to demonstrate that it is still business as usual in spite of the current situation. Life must go on, and he confirmed that the Bureau remains dedicated to doing its work to serve the public interest in a professional and responsible manner.

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Author

  • Commonwealth Secretariat (London)

Quotation

Gavin Murphy, The Canadian Commissioner of Competition issues a statement on the application of competition rules during the COVID-19 virus outbreak, 20 March 2020, e-Competitions Competition Law & Covid-19, Art. N° 94058

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