Commissioner of Competition Bureau Matthew Boswell in Ottawa on Dec. 14, 2022.Dave Chan/The Globe and Mail
Keldon Bester is the executive director of the Canadian Anti-Monopoly Project (CAMP) and a fellow at the Centre for International Governance Innovation (CIGI). He has worked as a special adviser at the Competition Bureau.
Ahead of the holidays, the federal Liberals have made the most consequential improvements to Canada’s competition law since its introduction in 1986 and are on track to go further in early 2024.
As Canada’s competition law undergoes an important transition from stagnation to rejuvenation, it is welcome news that the government has reappointed Commissioner of Competition Matthew Boswell for an additional two years.
Though Canada’s commissioners do not have the same powers as their counterparts in the United States or Europe, the role is core to our competition policy framework. The commissioner alone decides which investigations move forward, and whether to settle with parties or go to the mat and take some of the world’s largest corporations to court.
The character of a commissioner can mean the difference between an assertive defence of competition and a free pass for harmful corporate consolidation.
Accordingly, the new laws coming into effect will require bold leadership from this commissioner and every commissioner going forward to make the most of them. Appointing a commissioner too friendly to Bay Street, too worried about upsetting their book of clients, would waste the potential of the new powers granted to the Competition Bureau.
This is not to say that strong commissioners cannot emerge from the ranks of Bay Street, they have before and they will again. But to serve Canadians effectively, they must be ready to defy the expectations of their peers and often their own material interests.
Changes to the law to be debated early in the new year will help expand this crop of future leaders. By opening private access to the competition law, Bill C-59 will allow individual companies to bring cases against dominant corporations attempting to abuse their economic power. This means the coming years will see the proliferation of legal and economic talent in favour of the assertive application of competition law, not just corporate defences against it.
In the meantime, reappointing Mr. Boswell is a sound choice. Far from the “cowboy commissioner” label, Mr. Boswell is fundamentally a moderate.
His decision to challenge the Rogers takeover of Shaw was clearly the right move for Canadians amid a highly concentrated telecommunications sector. Despite the loss at the Competition Tribunal, the bureau’s persistent challenge was rightly skeptical of arguments for consolidation and pushed the parties to go further to address the regulator’s concerns.
The long list of settlements, or consent agreements, during Mr. Boswell’s tenure shows he is not dogmatically obstinate and willing to negotiate when the interests of Canadians can be protected.
Mr. Boswell has also adopted a moderate tone in elevating the public voice of the Competition Bureau on policy matters. The reform recommendations of the bureau, a number of which have or are set to become law, serve to bring Canada up to speed with international counterparts. Despite claims to the contrary, these recommendations could only be considered radical by the standards of Canada’s consolidation-friendly status quo.
Though moderate, this newfound voice on public policy is a part of the increased bureau transparency that Mr. Boswell has fostered during his time, a welcome development for an otherwise black box to the Canadian public.
With his reappointment, Mr. Boswell has an important opportunity to set the agenda for enforcement of Canada’s new competition laws. He can do so by sending a clear message to corporate Canada that further harmful consolidation is off the table and by investigating how competition is stifled in highly concentrated markets.
He should also see to the release of updated enforcement guidance that makes clear that Canadians can expect a more active defence of competition, as the U.S. Federal Trade Commission and Department of Justice have recently done for merger enforcement.
Mr. Boswell’s extension also allows him to tie up the loose ends that have emerged during his tenure. In 2020 and 2021, the bureau made public that it was investigating Amazon and Google for abuses of dominance, but the authority has been effectively silent on the matter since. Bringing important cases like these to a close, whether through litigation or dissolution, would provide an important bookend to his time as commissioner.
Canada is in a period of transition, and it will take time for leaders to emerge in the competition policy space. So far, Mr. Boswell has done an admirable job challenging corporate Canada to do better and raising the public profile of an important Canadian institution.
The wise decision by the federal government to reappoint him gives time for this transition to occur, and for Mr. Boswell to cement his legacy as commissioner.