A Justice as Fairness Framework for a Revised Efficiencies Defence

Abstract

The efficiencies defence is at a crossroads. There is uncertainty about how it works. There is uncertainty about whether it will continue to exist after the next round of legislative amendments. Now is a good time to take stock and assess whether it is still necessary, and how to make it work in the modern economy and for all Canadians.
This article argues that there is still value in enabling Canadian companies to reach scale. The efficiencies defence should not be jettisoned. However, to make it work in the modern economy, the focus needs to be changed from static efficiencies to dynamic efficiencies. Equally importantly, to make it fair to all Canadians, the defence should expressly incorporate Rawlsian fairness. Ultimately, this article presents a concrete proposal that would achieve both of those goals.