OFA appreciates the opportunity to comment on the future direction of the Competition Act. We agree that fundamental improvements to the competition framework are needed, including enhancing the role of the Competition Bureau, the Competition Act’s enforcement agency. Currently the Competition Bureau ability to intervene is limited to a narrow set of circumstances. The Bureau’s investigations are constrained in many respects, and available remedies it can impose to address certain anticompetitive behaviour are limited.
OFA recommends more emphasis be placed on ensuring firms with market power do not abuse their dominant position through anti[1]competitive behaviours. In addition to the objective of providing consumers with competitive prices and product choices, the purpose of the Competition Act includes “ensuring that small- and medium-sized enterprises have an equitable opportunity to participate in the promoting the efficiency and adaptability of the Canadian economy”. OFA recommends amending the Competition Act’s purpose clause to expressly consider monopsony (purchaser) power that larger firms may from time-to-time exercise on small- and medium-sized enterprises that supply products and services to them, this includes unilateral changes in contract terms and conditions, and the threat of contract termination without just cause.
OFA recommends strengthening the Competition Act’s anti-competitive conduct provisions, such as abuse of a dominant position and exclusive dealing, tied selling and market restriction. An anti-competitive act is defined as an “act intended to have a predatory, exclusionary or disciplinary negative effect on a competitor, or to have an adverse effect on competition”. With respect to anti-competitive conduct, OFA recommends that Bureau be authorized to intervene when it is convinced that a firm has engaged in an anti-competitive practice, regardless of whether there is evidence that the practice has caused or has the potential to cause harm.
OFA supports explicitly stating “fair competition” provisions in the Competition Act and requiring less onus on proving harm to competition, in the interests of maintaining a level playing field and checking gatekeepers with monopolistic or monopsonistic power. We believe the Competition Bureau should be given the tools and resources necessary to remedy anti-competitive conduct with a greater emphasis on proactively investigating violations of the Act. We also note investigation must be conducted within a reasonable time frame.
OFA agrees with the recommendation that the Bureau be granted formal market study powers. Market studies can be equally valuable in sectors where competition does not appear to be working well but where root causes are not obvious, or where identified market failures would require a regulatory solution.
In terms of remedies, OFA believes firms should be given the option of providing the Bureau with a written assurance of voluntary compliance which would have the same force and effect as an order. For firms concerned about practicing corporate social responsibility, voluntary compliance offers an avenue to both address the anti-competitive behaviour and uphold their public reputation.
OFA supports measures to improve competitiveness across the agriculture and agri-food sector. Ensuring Ontario farmers have access to competitive markets is important to the sustainability of our farm businesses and farm families.