The intersection of Competition Law and Canadian Telecommunications has been top of mind for the past month since the news of Rogers and Shaw coming together in a $26B transaction.
Many are getting a crash course in various provisions of Canada’s Competition Act pertaining to mergers, debating the difference between a lessening of the numbers of competitors, and a lessening of competitive intensity. How do non-price factors, like quality, service and innovation figure in the Competition Bureau’s assessment of a merger?
But competition law impacts business behaviours outside of mergers as well. Yesterday, at the annual meeting of STAC, Canada’s Structure, Tower and Antenna Council, STAC 2021, delegates heard from Elad Gafni, an associate at Gowlings Ottawa office with an introduction to Canadian competition law including a discussion on how it interacts with trade associations, in particular, including “do’s and don’ts”.
Within the dual track (Criminal and Civil) system for dealing with anti-competitive conduct in the Competition Act, Section 45 deals with criminal conspiracies, prohibiting agreements or arrangements with competitors to engage in price-fixing, market allocation, and controls/limits on supply. Misleading advertising is also under the criminal track.
The civil track is most often handled through reviews by the Competition Tribunal. These would include performance claims in advertising, competitor agreements that don’t qualify as a criminal conspiracy, tied selling, or abuse of dominance, among others.
As many people in industry attend events, or participate in inter-company consultations, the provisions in the Act designed to prevent anti-competitive behaviour are important to be understood. Trade associations, by their nature, bring together competitors for cooperation and dialogue on certain issues. However, there are risks of breaching competition law in such meetings. Examples of activities that are recognized as acceptable for associations would include codes of conduct; self-regulation; government relations; standards (as long as they don’t unfairly discriminate); market analysis; and, education. Tips included having agendas for meetings; how to deal with something going wrong; or, mention of a sensitive topic. The Competition Bureau has a guide available for trade associations [pdf, 884 KB].
For some industry veterans, this may be second nature; for many, it was an important education on how to properly interact with people who are competitors in the marketplace, but colleagues in industry-wide issues, like safety and technical standards.
The Competition Bureau will feature prominently in the telecom news for the next little while. The session at STAC 2021 was a helpful introduction to Canada’s competition law.