C.D. Howe: Competition Law Has Teeth To Oversee Digital Marketplace

January 8, 2021

BRITISH COLUMBIA – Competition law enforcement should be the first defense for addressing anti-competitive behaviour in the digital marketplace, according to a report from a C.D. Howe Institute council.

Canada’s statutory framework for competition law enforcement continues to provide a robust and flexible toolkit to address anti-competitive behaviour. As such, in response to a growing movement both internationally and domestically for the regulation of “big data,” competition law should provide the framework for addressing concerns about the market conduct of digital platforms, and direct regulation should be the last resort.

This is the majority view of the C.D. Howe Institute’s Competition Policy Council, which held its twentieth meeting on October 8, 2020.

Council members emphasized that policymakers should not jump to regulate digital platforms without showing that competition law cannot provide an adequate remedy for the alleged market failure caused by digital platforms.

The Council also expressed concern that policymakers have failed to clearly identify the harms or “market failures” they propose to address, and that proposals to regulate digital platforms at a federal level may raise major constitutional questions that can be avoided by application of the Competition Act.

Although certain amendments to the Competition Act might help address conduct by digital platforms that may prevent or lessen competition substantially, the Council agrees any legislative proposals for amending the Act should be proceeded by wide consultation with the competition bar and business groups.

The Competition Policy Council comprises top-ranked academics and practitioners active in the field of competition law and policy. The Council provides analysis of emerging competition policy issues. Elisa Kearney, Partner, Competition and Foreign Investment Review and Litigation at Davies Ward Phillips & Vineberg LLP, acts as chair along with Grant Bishop, Associate Director, Research, at the C.D. Howe Institute. Professor Edward Iacobucci, Dean at the University of Toronto Faculty of Law and Competition Policy Scholar at the Institute, advises the program. Erika Douglas, Assistant Professor of Law at Temple University Beasley School of Law, also contributed valuably to this Council meeting. The Council, whose members participate in their personal capacities, convenes a neutral forum to test competing visions and to share views on competition policy with practitioners, policymakers and the public.

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The C.D. Howe Institute is an independent not-for-profit research institute whose mission is to raise living standards by fostering economically sound public policies. Widely considered to be Canada’s most influential think tank, the Institute is a trusted source of essential policy intelligence, distinguished by research that is nonpartisan, evidence-based and subject to definitive expert review.

 

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