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Those offences —known as hardcore cartel conduct — are considered “per se”illegal,which means agreements that are“so clearly offensive,” prosecutors don’t need to prove it had a harmful impact,said William Wu, a lawyer at McMillan LLP in Toronto who defends against criminal cartel cases.
Pecman suggested legislators could change the act to make wage fixing and other labour offences per se illegal, though only in cases where the workers are not already protected by a labour union.
Competition commissioner Matthew Boswell, Pecman’s successor at the bureau, noted in a recent letter to Erskine-Smith that the current requirement to prove an offence has harmed competition made for a high bar.
“Proving a substantial lessening or prevention of competition is not a low threshold,” Boswell wrote on Monday, responding to Erskine-Smith’s August request for an investigation.
To prove a negative impact in wage-fixing cases, Boswell noted the bureau looks at how the agreement affected “competition between employers for similar labour,” he said.
After reviewing Boswell’s letter, Pecman suggested it wasn’t likely the bureau would be proceeding with any investigation. “That’s the way I would read it,” he said.
The bureau has repeatedly declined to comment on whether or not it is investigating and referred questions about possible gaps in the legislation back to the government.
But Pecman said the bureau during his tenure as commissioner had started to explore issues around labour after the U.S. Federal Trade Commission (FTC) released guidance on wage fixing in the U.S. Any change in Canada, however, needs to come from legislators, he said.