Toronto Star and National Post newspaper boxes in Toronto on Oct. 29, 1999.KEVIN FRAYER/The Canadian Press
Keldon Bester is the director of the Canadian Anti-Monopoly Project (CAMP) and a fellow at the Centre for International Governance Innovation (CIGI).
Just days before Google announced it would be following Meta’s lead in blocking Canadian news content in the wake of Bill C-18′s passing, word came that Nordstar Capital, owners of the Toronto Star and Metroland newspaper chains, had begun talks of a possible combination with Postmedia.
You would be hard-pressed to find a more pivotal week for the future of journalism in Canada, but the announcement of merger talks will have special resonance for one Canadian in particular: Commissioner of Competition Matthew Boswell.
With less than a year left as commissioner, challenging Nordstar-Postmedia could cement Mr. Boswell’s legacy as a defender of competition in Canada – even if he has little chance of winning in this landscape constrained by a set of laws often considered toothless.
In his tenure, Mr. Boswell has overseen a marked expansion of his agency, the Competition Bureau, into public life. Last week it released a comprehensive study of Canada’s retail grocery market, calling out consolidation as a factor in high grocery prices. Earlier this year the bureau broke with tradition and authored a public list of more than 50 recommendations to address the problems it sees with the Competition Act.
But Mr. Boswell’s bureau is likely still bruising from its failure to block the Rogers-Shaw deal – the largest Canadian merger in recent memory – and it may have to shell out tens of millions to the telecom giant as a result of an adverse cost awards process that could see the agency liable for its opponents’ legal fees if it loses in court. The bureau’s recommendations to the federal government to intervene in major transportation mergers have also gone unheeded, with the Minister of Transport choosing to ignore its advice in both the Air Canada-Air Transat and WestJet-Sunwing mergers.
A challenge of Nordstar-Postmedia could be a chance for Mr. Boswell to redefine his legacy in a market potentially more consequential for Canada’s democracy than for our economy.
It would not be the first time that the bureau has tangled with the two companies. In 2017 the parties engaged in a swap and shutter of more than 30 local news outlets that carved Ontario up into Torstar and Postmedia regional newspaper markets. The bureau investigated what appeared from the outside to be a clear case of collusive market allocation, but closed the investigation without pressing charges three years later.
The fight at the centre of this current Nordstar-Postmedia merger will be over whether our competition laws allow the result of that carve-up to be recombined under a single entity.
No surprise to watchers of the Rogers-Shaw saga, any challenge to the proposed newspaper merger will be an uphill battle. Unlike in the United States, Canada’s competition law has not valued a diverse news media landscape for its own sake. Instead, previous cases have focused on competition in advertising markets that newspapers now play a relatively small role in compared with digital advertising giants Google and Meta.
The permissive treatment of newspaper consolidation in the history of Canada’s competition law is most clear in 1976′s R. v. K.C. Irving. There, the Supreme Court allowed for the total monopolization of English-language daily newspapers in the province of New Brunswick.
Still, the challenge presented by such a bold proposed merger is likely too good to let it simply pass by for Canada’s premier trustbuster and the assertive enforcement style that has characterized his tenure. When it comes to mergers, competition law agencies around the world are shifting away from a decades-long view that saw them primarily as dealmakers rather than enforcers, and Mr. Boswell can certainly count himself within that emerging camp.
As the fallout from Bill C-18 begins to be felt by the Canadian news media landscape, Nordstar-Postmedia could be a bellwether for the future of the industry. It may end up being just as pivotal to the legacy of a public servant who has shaken up a sleepy status quo.