When Canada’s competition laws underwent a series of major changes in 2024, Matthew Boswell was at the helm of Canada’s Competition Bureau. Now, he’s using his knowledge of the legal ins and outs to help businesses understand and adapt to the new context.
When Canada’s competition laws underwent a series of major changes in 2024, Matthew Boswell was at the helm of Canada’s Competition Bureau. Now, he’s using his knowledge of the legal ins and outs to help businesses understand and adapt to the new context.
Last month, Boswell joined law firm Norton Rose Fulbright as a partner in its antitrust and competition practice, based in Ottawa. He brings an extensive resume, which includes more than 25 years of experience in private practice, criminal prosecutions and securities regulations.
Most notably, he spent the past seven years serving as Canada’s commissioner of competition, during what he describes as a “pivotal moment” for competition law.
“The legal framework has evolved, markets are changing quickly and expectations around compliance are higher than ever,” he said in a recent interview with OBJ. “That creates challenges — but also opportunities — for businesses that want to get it right.”
In his new role, Boswell said he’ll be working with clients across the country, helping them navigate the new landscape while avoiding the pitfalls.
This transcript has been edited for length and clarity.
What’s one thing that’s been top of mind for you recently?
Let me start at a high level. The Competition Act is a federal law that applies across the country to pretty much all businesses and business activity. So for businesses of all sizes, it's very important to have an awareness of the Competition Act for two purposes: to make sure that you don't breach the act, because there are serious potential penalties for breaching, and for being aware of how other businesses you deal with could be breaching the act in their behavior towards you. That's a high-level comment about competition generally.
But what's even more important for businesses and businesspeople to understand is that in the last four years, there have been very significant changes to the law in multiple different ways that people need to be aware of, depending on what their business is all about. Different things will apply to different types of businesses.
If we’re looking at businesses in Ottawa, are there any changes that might be particularly relevant?
For any businesses involved in retail or selling goods and services online, there have been pretty significant changes to the deceptive marketing provisions of the law, particularly with respect to something we call drip pricing. That is advertising unattainable prices, where, after the main price is advertised through the buying process, other fees get added in. This is particularly common in the digital space. Mandatory fees get added like a delivery fee, or these types of things that aren't disclosed upfront. They get added as you get closer to check out.
A series of amendments to the act made that illegal, and the Competition Bureau has brought multiple cases over the years about drip pricing. They had a case against Cineplex, where Cineplex was fined $39 million. They have an ongoing case now against DoorDash and a case against Canada’s Wonderland. So if you’re making price representations to the public, you need to be aware of that.
The other general (change) that businesses in the Ottawa-Gatineau area need to know about is that wage fixing and no-poach agreements — agreeing not to steal each other's employees — have been made a crime in Canada. Anybody who's involved in employment needs to know that they can't get together with other employers and say, okay, let's not pay more than this for this type of employee. They can't get together with other employers and say, okay, I won't steal your employees, you don't steal mine. That’s anti-competitive in terms of getting people to come work for you, and anti-competitive in the sense that if employers are agreeing on what wages they'll pay, they're keeping the wages down artificially and hurting workers.
These all seem like the kinds of things companies could accidentally engage in, without realizing they’re illegal.
Certainly. In my experience, unfortunately, people are often taken by surprise that what they're doing is against the law. And so the more that people can be aware, the better. There are really good materials available to small and medium-sized businesses on the Competition Bureau's website about how to comply with the law. But some of those materials only go so far. If people are concerned or want to know more, they should get professional help so that they don't go offside. In those cases, it's a crime punishable by up to 14 years in jail and no limit on the amount of financial penalty the court might make you pay if you get convicted. And then you have a criminal record for the company.
How can businesses protect themselves from anti-competitive activity in their industry? What kinds of offences can they look out for from their competitors?
It's only about a year old, this much broader ability to bring your own cases to something called the Competition Tribunal. It's an administrative court, basically, under the federal court system. If you are the victim of certain anti-competitive behaviours and you can put together the evidence, you can sue your suppliers or others for that behaviour. It's a formal-type lawsuit, so you should get advice on that before you go down that road, but we've already seen six cases in the eight months since this became available last June, six cases. That's like an explosion of cases.
I've already talked about wage fixing and no-poach agreements, but two other areas are also criminal: if you are bidding on contracts, you have to be very careful to stay onside the bid rigging laws, which are also crimes in Canada that carry significant penalties. That's where two or more competitors bidding on contracts get together and do one of several prohibited things, like agreeing on the bids they're going to submit, agreeing that one party won’t submit a bid, or withdrawing a bid. So you definitely don't want to be involved in that conduct.
The other, of course, is price fixing, another crime under the Competition Act, which involves competitors agreeing on the price they'll charge for products sold to the public or sold to other businesses, or even agreeing on how much the price will go up.
I think bid rigging and price fixing are more clearly, obviously wrong, and people realize that. So there's probably more awareness that they’re illegal. But another issue that the bureau has pursued and that has changed under the law is greenwashing, which is false or misleading representations about the environmental benefits of your product or your service. A while back, there was a case brought by the bureau against Keurig, the coffeepot-maker, for saying that their pods were recyclable everywhere and, in fact, in parts of Canada, they weren't recyclable. They ended up paying a several-million-dollar fine. If businesses are going to make claims about the environmental benefits of their products or their services, they need to be able to substantiate that claim.
What advice do you have for businesses and entrepreneurs who advertise themselves as sustainable or environmentally friendly?
It basically comes down to making sure what you’re saying is true. Before putting something on your product or in an advertisement, make sure it’s accurate. And make sure you can back it up. There’s no set of specific standards you need to follow, or anything like that. You just need to be able to prove what you’re saying.
Competition law is something that might be top of mind for local companies as we’re seeing more M&A activity. What kind of changes have been made to regulations around M&A that those businesses need to know about?
The efficiencies defence (which allowed mergers that reduce competition to proceed if they produced innovation, cost savings or economic benefits) was a sort of economic analysis under the Competition Act and Canada was the only country in the world that had it. At the time it was put in, which was 40 years ago, people thought that it made sense and the rest of the world would follow Canada. But it became something like an outlier and it was very hard to use in practice for everybody involved. The parliament decided that it should be taken out of the act.
But what's more important is that, in 2024, parliament changed the merger law to put in some very significant changes. One is where a merger results in a certain amount of concentration in a market — and there are tests set out in the law to determine that — the court is required to presume that it's anti-competitive. If certain concentration levels are exceeded, then it's on the merging parties to establish that, no, it's not anti-competitive. That's a really big change, certainly for mergers in areas that are already concentrated.
The second thing is how you have to fix an anti-competitive merger. The requirements are much stricter now under some changes to the law in 2024 as well. So there's been a bunch of changes to the mergers and acquisitions review provisions, and if a company is going down that road, you want to be aware of how they might factor into a deal that you're looking to enter into with another business or buying another business, and whether or not there are also rules on when you have to formally notify the Competition Bureau. Generally speaking, it's only in bigger transactions, but you need to know what the rules are to make sure, because if you don't, it's an offence.
Anything else you’d like to add?
The public’s awareness of competition has become much higher. As businesses, if you’re not following the law, the odds of someone in the public taking notice of what you’re up to have gone way up. The bread price-fixing case is one of those things that has really brought attention to these issues. There’s just more public awareness around the importance of competition to the economy for businesses to consider. 
