Making Canadian Competition Akin to the EU
“Let the past die. Kill it, if you have to. That’s the only way to become what you are meant to be.” This line from The Last Jedi, spoken by Kylo Ren, is wrong because you cannot reshape the future without understanding the past; breaking away requires what went wrong and trying to fix it. This is why Rey was the heroine of the film. But wait… this article is about Competition Law… don’t worry, I am still sane.
The What We Heard Report is a summary of the comments submitted as consultation per the government’s attempt to reform our Competition Law including expanding the bureau’s powers. This is especially important considering Canada’s addiction to monopolies. Our phone carriers, grocery stores, banks and tech companies essentially have been acting carte blanche to dictate pricing and making record profits during a time of huge economic uncertainty with ever-increasing costs of living. Now with the US and especially the EU taking swift action against competition, it is time for Canada to catch up.
There is of course a call for the feds to engage in more enforcing against anti-competitive behaviours by monopolies, giving greater investigative powers to the Bureau, and taking action against actions such as greenwashing. The fast tracked amendments plus EU/US action against these monopolies seem that the change will happen.
However, Canadian competition is fundamentally flawed because even if it operates from greater powers and greater frameworks surrounding sustainability, monopolies, advertising, et cetera, it assumes that the market is good unless proven otherwise. The investigation into greenwashing by Canadian banks requires a complaint. Even if there are greater frameworks of what is considered a violation of such policies, it allows for a policy of “anything goes” until proven otherwise, contrary to the public interest.
However, the public interest is not neutral. Arguing otherwise ignores the reality, strength and the inherent morality embedded in universal human rights (i.e., freedom from discrimination regardless of creed, sexual orientation, gender identity, disability, et cetera), a safe healthy environment of not being subject to abusive tech and cellular companies and more. The EU model takes the opposite approach. It acknowledges the realities: that large market dominance by multinational companies stifles innovation, destroys the planet, and harms others all in the name of maintaining the free market.
The EU’s most famous competition legislation is the Digital Markets Act (DMA) which aims to keep technological “gatekeepers” in check. As of next year, consumers will finally have true technological sovereignty and universal standards. This keeps a minimum standard for everyone and maximizes technological access to all. We will have standardized cables, charging standards, interloped E2E messaging services respecting, repair standards, recycling mandates and more. This imposition on gatekeepers forces them to compete with new innovative startups and technologies that are nevertheless subject to strong human rights laws.
Or, perhaps consider the EU’s regulatory changes applying in the next few years over greenwashing. Greenwashing will be a thing of the past. Companies will have to do due diligence to ensure that their claims hold up and ‘credits’ will no longer be an acceptable excuse to market the product as “net-zero.”
The point of competition law, as noted by the feds themselves, is to ensure the market serves the public good—first and foremost—that being, prescriptively tied to human rights. Now, I am sure all the government skeptics are thinking “why should the government be involved? it is up to the market.” Good competition law establishes the regulatory environment for businesses to operate in rather than allowing them to be harmed. This is the precautionary principle in action and being used to its full potential rather than being stifled through waiting for harm to happen. In a EU model, Canada can prevent customer abuse, environmental damage, international human rights abuses and more through strong requirements to operate.
But why would the government be better than the market? This is especially the case when our close proximity to the Yanks make us more prone to populism and alt-right implementations compared to those across the pond. In response, I submit a few points. First, the large percentage of Canadian voters originating from large urban centres means that even alt-right/populist movements have to be careful to win their votes. We saw this with Scheer & O’Toole and even somewhat with Poilievre. Second, the large public outcries should the Competition Policy engage in a policy egregious to the public interest. We saw this with the disgusting handling of the Greenbelt coupled with Bill 124. Third, Canada has strong human rights standards and laws, coupled with updated legislation such as the Canadian Environmental Protection Act promising the right to a healthy environment. This is supported by Quebec Secession where it is established that Canada is built upon principles of the rule of law and democracy, dating back to the Magna Carta.
Failing to truly reform our competition policy ignores the very simple history lesson: Without proper regulation, corporations will gladly steamroll over the public good without care, all in the name of market efficiencies and profit maximization. We cannot move on from our outdated and problematic competition policy without truly confronting the actual problem. The possibilities are endless. Let’s do our duty and live up to our democratic foundations.