COUNTERFACTUAL PODCAST – Live Recording

Location: Blake, Cassels & Graydon LLP
340 Albert St., Suite 1950
Constitution Square, Tower 3
Ottawa, ON K1R 7Y6

REGISTRATION AND BREAKFAST
Registration: Adam Corridor | Breakfast: Drawing Room
Sponsor

WELCOME AND INTRODUCTION
Adam Room

Speakers:
Neil Campbell, McMillan LLP (Toronto, ON)
Cassandra Brown, Blake, Cassels & Graydon LLP (Toronto, ON)

OPENING PLENARY
The Politicization of Competition Law – What are the Limits and Consequences? (1.25 hours of substantive law)
Adam Room

• Politicization of antitrust in Canada – how did we get here? Discuss impact of US political and regulatory environment on Canadian competition reforms.

• Discuss the role of the Commissioner/Bureau as “advocates” for changes in the law as opposed to enforcers.

• Use of competition law to address government priorities such as grocery prices, inflation, labour markets, greenwashing – is competition law the right tool?

• Are policy reforms being driven by populist sentiment about consolidation and the current economic climate?

• New power to conduct market studies – how will the new power be used, and who holds the most influence in setting priorities?

• Discussion of airline industry market study (and any subsequent studies announced prior to conference).

Speakers:
Matthew Chiasson, Competition Bureau Canada (Ottawa, ON)
Fiona Schaeffer, Milbank LLP (New York, NY)
Don Guy, GT and Company (Toronto, ON)
Julie Soloway, Blake, Cassels & Graydon LLP (Toronto, ON)

Moderator: Mike Laskey, Stikeman Elliott (Toronto, ON)

REFRESHMENT BREAK
Adam Corridor

BREAKOUT SESSIONS

SESSION 1A: A Private Right of Action for Competitor Collaborations – Who is Most Likely to Benefit, and Who is Most at Risk? (1.25 hours of substantive law)
Adam Room

• Discussion of existing private rights of action under s.45-47/s.36 vs. emerging rights of private action for civil competitor collaborations under s. 90.1.

• What theories of harm are plaintiffs likely to advance, and what kinds of evidence will they bring in support of their claims? How should defendants prepare to defend against such claims?

• How will the threat of private litigation influence commercial negotiations?

• How will expanded leave provisions impact incentives to bring litigation, and on whose behalf (e.g., public interest)? Are competitors or customers / suppliers more likely to bring actions?

• Do the amendments to s. 90.1 open the door to private merger challenges?

Speakers:
Adam Hirish, Osler, Hoskin & Harcourt LLP (Toronto, ON)
Cathy Beagan Flood, Blake, Cassels & Graydon LLP (Toronto, ON)
Paul Klippenstein, Competition Bureau Canada (Gatineau, QC)
Reidar Morgerman, CFM Lawyers LLP (Vancouver, BC)

Moderator: Jon Wall, Goodmans LLP (Toronto, ON)
 

SESSION 1B: Abuse of “Abuse of Dominance” in Canada? (1.25 hours of substantive law)
Renaissance Room

• Discussion of new two-pronged test – what will combination of negative impact on competition and intent threshold mean in practice?

• What are the implications of the recent changes for theories of harm involving joint dominance?

• What is still relevant from previous decisions, including TREB and VAA?

• Will the new test put a chill on procompetitive conduct?

• How will “superior competitive performance” be interpreted in assessing anticompetitive effects?

• Coupled with the private right of action, does the amended abuse of dominance provision give less efficient firms a window to compete through tactical litigation?

Speakers:
Omar Wakil, Torys LLP (Toronto, ON)
David Weiskopf, Compass Lexecon (Washington, DC)
Julia York, Skadden, Arps, Slate, Meagher & Flom LLP (Washington, DC)

Moderator: David Feldman, Stikeman Elliott (Toronto, ON)

SESSION 1C: Hot Topics in Criminal Law – Canada and Abroad (1.25 hours of substantive law)
MacDonald Room

• Discussion of no-poach/wage fixing criminal enforcement trends in Canada and abroad.

• Recent losses by DOJ in labour market cases, together with aggressive commitment to enforcement by DOJ – what should we expect going forward in the US – will these be a proper blueprint for Canadian enforcement?

• Immunity/Leniency Program – is it worth it? Are the programs seeing use in the face of the significant civil implications of admitting involvement in criminal conspiracy, debarment implications, etc.?

• Impact of Bureau and PPSC frequent decisions not to prosecute non-leniency.

Speakers:
Pierre-Yves Guay, Competition Bureau Canada (Gatineau, QC)
Lisa Phelan, Morrison Foerster (Washington D.C.)
Ken Jull, Gardiner Roberts LLP (Toronto, ON)

Moderator: Alysha Manji-Knight, Davies Ward Phillips & Vineberg LLP (Toronto, ON)

LUNCHEON AND AWARD PRESENTATION
Drawing Room
Sponsor

Presentation of the James H. Bocking Memorial Award
Award Recipient: Mark Musselman

COMMISSIONER’S KEYNOTE ADDRESS (0.74 hour of substantive law)
Drawing Room

Address by Commissioner of Competition, Matthew Boswell
Fireside Chat with the Commissioner

Moderator: Cassie Brown, Blake, Cassels & Graydon LLP (Toronto, ON)

AFTERNOON PLENARY
How Will Merger Review Change? (1.5 hours of substantive law)
Adam Room

• Structural Presumptions and Concentration Indices – How does this approach compare with other jurisdictions? E.g., interpretation of structural presumptions/concentration indices in US Merger Enforcement Guidelines?

• Does this presumption achieve the goal of increasing productivity and innovation? Can there procompetitive merger activity above 30%?

• How will the structural presumptions change Competition Bureau, merging party and complainant strategies for mergers?

• New “automatic” injunction applications – how does this affect timing agreements and litigation/closing strategy?

• Limitation period for merger review – strategic implications for voluntary notifications (3-year lookback period for non-notifiable deals)

• Does the extended review period apply retroactively/retrospectively (e.g., a merger that was not notified and closed 18 months ago?)

• Will we see more enforcement based on labour market theories of harm?

• Will recent increased merger enforcement in the US translate to Canada? Will US Merger Guidelines impact Canadian review?

Speakers:
Ryan Leenhouts, Competition Bureau Canada (Gatineau, QC)
Margaret Segall, Cravath, Swaine & Moore LLP (New York, NY)
Peter Flynn, Stikeman Elliott (Toronto, ON)

Moderator: Dimitri Dimitropoulos, Charles River Associates (Toronto, ON)

REFRESHMENT BREAK
Adam Corridor
Sponsor

BREAKOUT SESSIONS

SESSION 2A: Restrictive Covenants (1.25 hours of substantive law)
Adam Room

• Overview of amendments to the Competition Act that apply to restrictive covenants.

• Discussion of Bureau investigation into use of restrictive covenants in the grocery sector – background to Bureau investigation and overview of the parties’ responses (e.g., application for judicial review)

• Likely implications outside of the grocery context

• Comparison of US rule of reason approach to statutory framework of the Competition Act

Speakers:
Kail J. Jethmalani, Axinn, Veltrop & Harkrider LLP (New York, NY)
David Dueck, Osler, Hoskin & Harcourt LLP (Toronto, ON)
Daniel Jensen, Competition Bureau Canada (Gatineau, QC)

Moderator: Fiona Campbell, CIBC (Toronto, ON)
 

SESSION 2B: Building Better Remedies (1.25 hours of substantive law)
Renaissance Room

• How will the advent of a specialized remedies officer impact the negotiation of remedies going forward?

• What issues exist with the remedies process and how could those be addressed within the Bureau’s existing processes and frameworks?

• Change to the remedy standard – how will recreating the pre-merger competition landscape work in practice?

• Given the most recent remedy assessment was released in 2011, is the Bureau likely to undertake more post-remedy assessments in the near term? Comparisons to jurisdictions with post-remedy assessment practices (e.g., FTC merger remedy study in 2017, EC study from 2005, UK CMA from 2007)

Speakers:
Shawn Hashmi, Competition Bureau Canada (Gatineau, QC)
Jervis Rodrigues, BDO Canada LLP (Vancouver, BC)
Ian Li, Torys LLP (Toronto, ON)

Moderator: Francesco Ducci, Western University (Toronto, ON)
 

SESSION 2C: : New Frontiers of National Security – Implications of the New Regime (1.25 hours of substantive law)
MacDonald Room

• Dissecting the sectors list

• Advice during transition to the new rules

• Changes to filing strategies in the context of mandatory pre-closing waiting periods

• FIRES preparations to handle anticipated volume of filings

• Comparison with proliferating national security regimes globally

• Strategic implications of new regime for Canadian businesses and foreign investors

Speakers:
Matt Dooley, Innovation, Science and Economic Development Canada (Ottawa, ON)
Julian Ovens, Crestview Strategy (Ottawa, ON)
Josh Chad, McMillan LLP (Toronto, ON)

Moderator: Sandy Walker, Dentons (Toronto, ON)

RECEPTION
Fairmont Chateau Laurier: Laurier Room
Sponsor

Open to all registered attendees.

DINNER EVENT
Canadian Museum of Nature: Hatch Salon
Sponsor

Ticketed event. Tickets and an additional guest ticket can be purchased during registration for $150/+tx each.

YOUNG LAWYERS’ NETWORKING RECEPTION
Charlotte Ottawa
Sponsor

Open to all registered attendees.

REGISTRATION AND BREAKFAST
Registration: French Corridor
Breakfast: Laurier Room

BREAKOUT SESSIONS

SESSION 3A: Scholars’ Panel – How to Calculate the “Benefit Derived” from Anticompetitive Conduct? (1.25 hours of substantive law)
Ballroom

• Discussion regarding “the benefit derived from the [conduct / agreement or arrangement]” – how could/should/will this be calculated?

• How would the calculation operate in practice?

• What rules need to be in place to make it likely to be pursued?

Speakers:
Gideon Kwinter, McCarthy Tétrault (Toronto, ON)
David Vaillancourt, Affleck, Greene McMurtry (Toronto, ON)
Robert Topel, University of Chicago (Chicago, IL)
Yoram Beck, Cohen Hamilton Steger & CO (Toronto, ON)
Linda Visser, Siskinds Law Firm (London, ON)

Moderator: Andrea Roulet, Slater Vecchio LLP (Vancouver, BC)
 

SESSION 3B: Structural Presumptions Workshop – How to Calculate Concentration and Market Definition (1.25 hours of substantive law)
Renaissance Room

• Brief level-set re structural presumptions and concentration index levels in new amendments (description of HHI, illustrative examples of what sorts of concentration will meet the standard)

• With the new structural presumptions, will market definition become the central battleground for merger cases?

• Discussion of various approaches to market definition – is the SSNIP approach appropriate in all cases? When is it insufficient?

• How have similar structural presumption/concentration indices been interpreted/applied in the US? What does the market definition debate look like in recent years/enforcement cases?

• What lessons can we take from US enforcement/interpretation for Canada?

Speakers:
Markus Von Wartburg, Analysis Group (Montreal, QC)
Emrys Davis, Bennet Jones LLP (Toronto, ON)
Pauline Kennedy, Bates White (Washington, D.C.)
Matthew Strathearn, Competition Bureau Canada (Gatineau, QC)

Moderator: Robin Spillette, Fasken (Toronto, ON)
 

SESSION 3C: Hot Topics in Deceptive Marketing (1.25 hours of substantive law)
MacDonald Room

• Discussion of greenwashing amendments in Bill C-59. What is the standard for supporting environmental claims? What types of “internationally recognized standards” will be accepted?

• Will the amendments chill sustainability commitments?

• What kind of claims is the Bureau most concerned about? What level of generality/specificity is required to attract enforcement attention?

• Lessons learned from the Bureau’s enforcement proceedings against Cineplex

• Role of AI generated content / deepfakes in deceptive marketing practices investigations – is the Bureau seeing a rise in complaints? How is it approaching this emerging area?

• How will the new private right of action affect the enforcement of these provisions?

Speakers:
Josephine Palumbo, Competition Bureau Canada (Gatineau, QC)
Joey Zukran, LPC Avocats (Montreal, QC)
Jonathan Bitran, Blake, Cassels & Graydon LLP (Toronto, ON)

Moderator: Jasmine Adhami, Dollarama (Montreal, QC)

REFRESHMENT BREAK
French Corridor

CLOSING PLENARY
Mentor/Mentee Debate (1.25 hours of substantive law)
Ballroom

Mentor/Mentee tag-team debate. Three topics, six speakers. “Old Guard” vs. “Rising Stars”

Potential Topics:

• The Bureau should designate all mergers resulting in a market share under 30% as non-complex.

• The Bureau should leave greenwashing complaints to private parties seeking rights of access as opposed to allocating Bureau resources.

• The implementation of Bill C-59 will hinder the growth of the Canadian economy.

Speakers:
Camila Maldi, Dentons (Toronto, ON)
Adam S. Goodman, Dentons (Toronto, ON)
Denis Rothschild, Borden Ladner Gervais LLP (Toronto, ON)
Mohit Sethi, Borden Ladner Gervais LLP (Toronto, ON)
Joshua Krane, McMillan LLP (Ottawa, ON)
Seema Sidhu, McMillan LLP (Toronto, ON)

Moderator: Reba Nauth, Osler, Hoskin & Harcourt LLP (Toronto, ON)

Women in Competition Law Lunch
Ballroom

• Greenwashing should be specifically regulated under the Competition Act; and

• The implementation of Bill C-59 will hinder the growth of the Canadian economy.

Speaker: The Honourable Catherine McKenna, Former Minister of Housing, Infrastructure and Communities of Canada