Commissioner of Competition Bureau Canada Matthew Boswell in Ottawa on Dec. 14.Dave Chan/The Globe and Mail
Wherever Matthew Boswell goes for work, he carries around a folder affixed with a sticky note that is inscribed with a quotation: “Canada has been identified as a country that does not place sufficient importance on competition in the conduct of its affairs.”
It’s not exactly “live, laugh, love,” but we’re talking about a federal official here. The quotation comes from a 2008 report commissioned by the federal government called Compete to Win, and it serves as both motivation and a reminder of how little has changed. “That’s been the situation for decades,” Mr. Boswell says in an interview. “That’s why we see a very concentrated economy and we see multiple oligopolies that control our economy in different sectors.”
Mr. Boswell, head of the Competition Bureau since 2019, hardly needs the reminder. As he sees it, he’s been living with the flaws in the country’s approach every day for more than 11 years, when he first joined the bureau.
He’s loudly decried how federal legislation hobbles the bureau when it comes to maintaining and encouraging competition, and how that framework needs to change. He’s done so through speeches, wading into policy debates, and through actions such as taking his opposition to the $26-billion merger between Rogers Communications Inc. RCI-B-T and Shaw Communications Inc. SJR-B-T all the way to the Competition Tribunal this year in hopes of blocking the transaction.
“His impact has been quite substantial,” says Robin Shaban, co-founder of economic consulting firm Vivic Research. “He’s taking decisive action to modernize the bureau and bring it out of 1992.”
While Mr. Boswell is far from the only one pushing for reform, the agitation is paying off. Earlier this year, Innovation, Science and Industry Minister François-Philippe Champagne announced a review of the Competition Act. (The public consultation period closes at the end of February.) But the true test of whether Mr. Boswell’s needling has any affect will be in what, if any, reform emerges from the federal review process.
He didn’t always have such strong feelings about competition law. He grew up in Ottawa, and his father worked in the forest products industry while his mom had a variety of careers, including a brief stint at what was then called the Department of Indian Affairs. She left because she couldn’t handle bureaucracy. A question about whether Mr. Boswell has any tolerance for bureaucracy elicits from him what sounds to be a pained groan. “Did I say I had tolerance?” he says.
He studied law and joined a firm in Toronto before high-tailing out of Bay Street and into a courtroom for a position as a Crown prosecutor. “It was an amazing job,” he says. “Very difficult at times, though, dealing with the worst day of other people’s lives every day of your life.” He later joined the Ontario Securities Commission as litigation counsel before moving to the Competition Bureau on secondment. “The plan was to be there for two years,” he says. “Somewhere along the way, that plan went out the window.”
Once there, he experienced firsthand how Canada’s competition law falls short. In 2020, for example, the bureau reached a settlement with Facebook in which the company agreed not to make false or misleading representations about the disclosure of Canadians’ personal information. As part of the deal, Facebook agreed to pay a $9-million penalty, just shy of the maximum of $10-million. For similar conduct in the United States, the Federal Trade Commission imposed a penalty on Facebook of US$5-billion. “That’s the most glaring example of how our act isn’t fit for purpose for the modern economy,” Mr. Boswell says.
Market studies are another sore point. When it comes to investigating the state of competition in a particular industry, the bureau cannot compel companies to provide information. “It puts us at a real handicap compared to basically all of our G7 counterparts,” Mr. Boswell says. As such, the bureau seemed to be lowering expectations in October when it announced a study into the grocery sector, noting it has to rely in part on information provided “on a voluntary basis” and that it might not have enough to “draw firm conclusions.”
But the topic for which Mr. Boswell has arguably received the most attention is his broadside on the efficiencies exception, which allows mergers to proceed if private benefits, such as cost savings for the merging parties, outweigh harms to consumers through higher prices or less choice. Mr. Boswell took aim at the provision in a speech last year before the Canadian Bar Association, and the bureau has since proposed it be eliminated. Efficiencies should be considered as just one factor when evaluating a transaction, the bureau has argued, and not trump everything else.
Events, such as the Rogers-Shaw deal, have also helped Mr. Boswell in his quest for reform. “Matthew has a good ability to seize on the things that play in the public imagination. He’s been able to present his reforms in a way that catches the attention of people,” says Jennifer Quaid, an associate professor at the University of Ottawa’s Faculty of Law.
The Competition Tribunal, meanwhile, recently wrapped up four weeks of hearings into the Rogers-Shaw transaction. Mr. Boswell attended frequently early on, but commitments at the bureau eventually pulled him away. Still, the bureau’s lawyers did an “amazing” job, he says.
His unyielding desire to stop the transaction has no doubt rankled some (lawyers for the telecom companies called the bureau’s arguments “hyperbolic” and “troubling” in closing statements) and many analysts believe he has a weak case. Mx. Shaban says he wins no matter what. “If he takes the case and he wins, then he’s a hero,” they say. “If he loses the case, then he demonstrates how bad the law is and everyone’s outraged.”
It’s hard not to wonder if that’s the goal – knowingly waging a losing battle to prove a point. “I completely disagree,” Mr. Boswell says. “We can’t just go by a flight of fancy and file an application at the tribunal and say, ‘Well, you know, let’s just file and this will help us.’ ” Sure, the timing is fortuitous, but there’s no ulterior motive: “We base our cases on the evidence that actually shows what we’re alleging is going on.”
Whichever way the tribunal decides, there will inevitably be more transactions for Mr. Boswell to probe. Royal Bank of Canada, for example, struck a deal in November to acquire the Canadian division of HSBC Holdings for $13.5-billion. The bureau later tweeted it would review the deal – a rare public statement, given it tends to remain silent on which cases it’s looking into.
But Mr. Boswell wants the bureau to open up. “We’re trying to be more transparent to Canadians,” he says. That includes trying to ensure communications are written in plain language, and not in overly academic or lawyerly jargon that makes eyes glaze over.
If there’s one point he wants to emphasize, it’s that competition policy is not an abstract concept but something that affects every Canadian. The more attention, the better, as he sees it. “It puts more pressure on the bureau because we’re more in the public eye,” he says, “but that’s not a bad thing.”