The Canadian government has recently implemented numerous amendments to the Competition Act. Some changes went into force earlier this year, while others are impending in June 2023. Several of the recently enacted amendments are rife with implications for how organizations monitor and access electronically stored information. Organizations that are working to take a proactive approach to compliance must now consider the impact ever-expanding volumes of ESI will have on their ability to monitor behaviour that may indicate violations as per the provisions recently added to the Competition Act.
The Canadian Bar Association recently hosted its Competition Law Fall Conference, which covered extensive discussions around the Competition Act amendments and their implications for proactive compliance monitoring and ESI handing in investigations. In the opening remarks, Anthony Durocher from the Competition Bureau laid out an important theme that persisted through the conference: the intersection of technology, innovation and competition. Durocher explained the importance of innovation as a driving force of competition and that technology enablement will drive innovation, which in turn will drive competition in the economy.
During a subsequent session, panellist Thomas Ross from the University of British Columbia discussed how certain small and medium industries are fostering innovation through technology enablement. Ross emphasized the fact that policymaking should encourage the rise of new, emerging technologies that fuel innovation to drive competition in the economy. He concluded with the question of whether it is time to rethink policy in the context of technological advancement.
Among additional topics discussed during the conference is a new Competition Act provision (effective June 2023) that dictates it is a criminal offence for unaffiliated employers to enter into any form of wage-fixing agreement. With this, organizations must now consider how all wage and compensation-related discussions between employees, external parties and decision makers may impact competition compliance. Notably, many of these conversations take place over email and internal chat and collaboration tools. Monitoring these tools for wage-fixing conversations, and reviewing any conversation threads that may signal a potential violation, can be extremely onerous, especially if the organization does not have strong data retention and defensible disposal policies and processes.
As data sources become more varied and complex, and data volumes grow persistently and rapidly, analytics capabilities have become integral to establishing efficient and accurate workflows for proactive compliance monitoring and conducting investigations into suspicious behaviour.
Such tools may also be useful in monitoring compliance for “drip pricing,” another area of compliance that has been expanded under the recent Competition Act amendments. Drip pricing involves the representation of a price that a consumer cannot attain due to mandatory fixed charges and fees. Electronic communications between employees can often be revealing in terms of the true intent or overall scheme of a particular marketing or sales initiative that may lead to drip pricing. A combination of AI and e-discovery tools can serve as means to investigate these activities and proactively address them before they escalate to regulators.
Throughout the conference sessions, technology was a common denominator. The majority of discussions demonstrated consensus that technology is a binding factor for economic progress, policymaking and governance. As such, it can be leveraged to review complex data in competition investigations. At the same time, the use and advancement of technology will prompt a greater need for scrutiny and transparency of M&A transactions and competition compliance across industries.
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