Green Competition: Introduction to the Interactions between Competition and Environmental Policy in Canada

Abstract

More than ever, environmental issues have a predominant influence on the elaboration of public policies in Canada, impacting governmental intervention in matters traditionally less associated with sustainable development. However, Canada's competition policy seems to resist to this tendency. For instance, the Competition Act (the "Act") does not include any specific provision pertaining to the promotion of sustainability, and the Competition Bureau (the "Bureau") has not committed to the achievement of any express environmental objective. Nevertheless, there are indications that some of the objectives stated in the Act and Canada's environmental commitments are not irreconcilable, as demonstrated by the courts' recognition of certain environmental effects as gains in efficiency, as well as the few enforcement actions led by the Bureau against greenwashing. Similarly, certain provisions of the Act, even if they have not yet been interpreted in that context, could provide leeway for an enforcement approach that promotes sustainable business practices. This begs the question of whether the incorporation of environmental objectives in Canadian competition law, either through a legislative reform or through the creative interpretation of the current legislative framework by the enforcer and the Competition Tribunal (the "Tribunal"), could dilute the effectiveness of the Act, and be incompatible with the Bureau's and the Tribunal's respective mandates and expertise. On the other hand, however, a total rejection of these considerations could impede competitor collaborations aimed at developing new eco-friendly products and sustainability-oriented industry standards. As such, some jurisdictions have started to promote an interpretation of pre-existing competition rules that takes into consideration environmental concerns. In that context, Canada should modernize its competition law policy to better reflect its international environmental commitments, either by updating the Bureau's mandate and reviewing its current enforcement guidelines, or through minor legislative amendments designed to incorporate environmental concerns into the Act.