Competition Law Guidance Under Commissioner Aitken: A Survey

Kevin Ackhurst (Norton Rose) describes Competition Law Guidance Under Commissioner Aitken: A Survey.

ABSTRACT: Canada’s Commissioner of Competition announced on June 28, 2012 that she would resign her position on September 21, 2012. Since her appointment as Interim Commissioner in January 2009, Melanie Aitken has overseen profound changes at the Competition Bureau, including adjusting to the passage of the most significant amendments to the Competition Act in the statute’s history, as well as implementing a highly visible enforcement program. The Commissioner initiated judicial challenges in all main areas of the Act, including mergers, abuse of dominance, price-fixing, price maintenance, and misleading advertising. In addition to commencing a number of high-profile cases, the Commissioner introduced a number of new or updated policy documents to offer guidance to consumers, businesses, and their advisors.

This paper surveys the policy guidance issued by the Commissioner between January 2009 and July 2012, by topic. It does not include an analysis of the positions adopted by the Commissioner in case-specific contested enforcement proceedings or the settlement of civil or criminal matters, including mergers. That is, the focus is on broad, forward-looking policies issued by the Commissioner in the form of bulletins, enforcement guidelines, and interpretation guidelines.

The Commissioner and her staff are to be commended for quickly issuing guidance documents to assist practitioners in the wake of the passage of Bill C-10, which introduced, among other things, significant changes to the merger review process, the scope and burden of proof of the price-fixing provisions, and the addition of a civil review of competitor collaborations-all of which necessitated the publication of new policy guidance. The hefty increase in the fines and penalties (including the introduction of monetary penalties for abuse of dominance) for criminal and civil breaches of the Act led to various guidance documents being updated. However, certain of those policies, such as the Fees and Service Standards Handbook for Mergers and Merger-Related Matters, were criticized for lacking clarity and being inconsistent with the Act. Other policies, such as the second draft of the revised Enforcement Guidelines on the Abuse of Dominance Provisions