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Beer, Butter, and Barristers: How Canadian Governments Put Cartels before Consumers
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Journal Article
Beer, Butter, and Barristers: How Canadian Governments Put Cartels before Consumers
2013
Overview
In most cases, regulatory responses to market failures restrict competition.17 This is because it is the alleged failure of competitive forces that is the target of government intervention in the first place. In this respect, regulation \"ensure[s] socially desirable outcomes when competition cannot be relied upon to achieve them... replacing] the invisible hand of competition with direct intervention - with a visible hand, so to speak\" (Train 1991,2). This formulation of regulatory responses implies a trade-off between regulation and competition. In cases where competition is the best method for achieving socially optimal outcomes, regulatory responses should be limited to refereeing' competitive forces - a role played by the Bureau and other facilitative regulators.18 However, where the public interest favours intervention, competition may take a secondary role to correcting market failures. Competition, as Dickson C.J. observed in General Motors, \"is not an issue of purely local concern but one of crucial importance for the national economy.\" It is a \"genre of legislation that could not practically or constitutionally be enacted by a provincial government.\" Competition law is not confined to a set group of participants in an organized trade, nor is it limited to a specific location in Canada. Rather, it is a diffuse matter that permeates the economy as a whole, as \"[t]he deleterious effects of anti-competitive practices transcend provincial boundaries.\" Anti-competitive behaviour subjected to weak standards in one province could distort the fairness of the entire Canadian market. This national dimension, as the Court observed, must be regulated federally, or not at all. Failure by one province to legislate or the absence of a uniform set of rules applicable throughout the country would render the market vulnerable.20 8 The purpose clause in the Competition Act, while stating a number of different objectives, expressly recognizes two primary stakeholders that the legislation aims to protect: consumers and small and medium-sized enterprises - see s. 1.1 of the Competition Act (R.S.C. 1985, c. C-34). In the United States, the Supreme Court has described antitrust laws as a \"consumer welfare prescription\", see: Reiter v. Monotone Corp., 442 U.S. 330,343 (1979). In Canada, the then-Commissioner of Competition emphasized the consumer interest in the Bureau's investigation leading up to a S 12.5 million fine for a polyurethane foam price fixing cartel: \"this investigation highlights the Bureau's reinvigorated mandate to stop consumer harm caused by price-fixing\".
Publisher
C.D. Howe Institute
