Honourable senators, it is my privilege to speak at third reading as sponsor of Bill C-59, An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023.

As you know, this legislative proposal would help stimulate the national economy by making life more affordable for Canadians. It would do so by creating conditions conducive to housing construction and generating quality jobs.

In this speech, I will first summarize the work of the Standing Senate Committee on National Finance, and then I’ll address the measures I didn’t have a chance to cover during second reading of the bill.

I would like to begin by taking the time to express my sincere thanks to the members of the National Finance Committee who, despite a busy schedule at the end of this session, conducted a diligent and rigorous study of a voluminous bill. Thank you, esteemed colleagues.

As part of its study, the National Finance Committee heard from several witnesses and reviewed briefs from numerous stakeholders, including the Business Council of Alberta, the Canadian Fuels Association, Ecojustice, the Canadian Association of Physicians for the Environment, the Centre québécois du droit de l’environnement, the Canadian Consumer Specialty Products Association, and the list goes on. It also heard from officials from the various departments affected by the bill, as well as the Canadian Chamber of Commerce.

The pre-study of the bill made it possible to identify the main issues and to better understand the various measures proposed.

When the bill was referred to committee following second reading, the committee focused on the measures that were amended in the House of Commons. In addition, one of the measures related to the section amending the Competition Act, specifically Division 6 of Part 5, raised concerns among certain stakeholders. The committee therefore paid particular attention to those concerns and to the potential consequences of the amendment in question.

Before diving into the details of this amendment and the discussion at committee, I will briefly outline the fundamentals of the competition regime and its functioning in Canada.

The federal Competition Act serves as an economic framework law designed to foster greater competition through civil and criminal provisions addressing various forms of harmful anti‑competitive conduct in the marketplace. The act is administered and enforced by the Competition Bureau, an independent law enforcement agency dedicated to protecting and promoting competitive markets and enabling informed consumer choice.

In recent years, particularly following the government’s consultation on the future of competition policy in Canada, initiated in late 2022, many stakeholders and members of the public have expressed concerns about increasing corporate concentration in Canada, rising prices and the disproportionate powers of corporate giants.

The changes brought forward by Bill C-59 are in carefully selected areas and can directly contribute to addressing these long-standing issues.

I would like to discuss the work of the House Standing Committee on Finance and address the concerns raised by stakeholders after the adoption of a set of amendments to clause 236 of the bill that aims to strengthen the fight against greenwashing. Some stakeholders expressed concerns, indicating that the added requirement based on internationally recognized methodology was too vague and lacked clarity in its definition. It is worth noting that a significant portion of the testimony presented at the House Standing Committee on Finance supported the enhancement of the criteria outlined in clause 236 of the bill. This approach was also consistent with briefs received by our Standing Senate Committee on National Finance, notably from the Canadian Association of Physicians for the Environment, the Centre québécois du droit de l’environnement and Ecojustice.

The Competition Bureau, in its testimony to the House Standing Committee on Finance, also addressed the importance of strengthening the criteria, recognizing the scale of the greenwashing problem in Canada. At the House Standing Committee on Finance, the initial set of proposed amendments brought forward drew on amendments advocated by environmental groups, expanding the provisions to include general environmental claims and requiring companies to publish evidence and proof of testing to substantiate the claim. A subamendment was then proposed to require organizations making environmental claims to produce testing for products or substantiation for general business activities only if challenged by the bureau, rather than making them available at the time of the claim, the objective being to avoid undue administrative burdens on small and medium-sized enterprises, or SMEs.

Therefore, the current set of amendments reflects balanced language that maintains the intent and directionality of the amendments but avoids any unintended consequences and burdens for the companies. A substantiation requirement protects competition by ensuring that consumers can trust the statements made about businesses and business activities.

It is also noteworthy that the amendment and subamendment to clause 236 adopted at the House Standing Committee on Finance reflect cross-party support and were subsequently passed unanimously at third reading in the House of Commons. A letter from the Competition Bureau sent to the Standing Senate Committee on Banking, Commerce and the Economy on May 31, 2024, and later to the Standing Senate Committee on National Finance, explicitly addresses the amendments in question. The bureau stated:

Although we recommended further study, we respect the decision by the House of Commons Standing Committee on Finance to make amendments to Clause 236(1) on this important issue. As noted above, it took this decision after hearing from various stakeholders. The amendments were ultimately adopted unanimously by the House of Commons at third reading on May 28, 2024.

The letter continues, stating:

In our view the proposed amendments to the Competition Act made in Bill C-59 represent a long-awaited and much‑needed upgrade in our competition law framework that will better serve the needs of Canadians.

This letter and subsequent intervention from the bureau indicate that with the current language proposed in Bill C-59, Canada’s independent competition authority is ready and equipped to fulfill its mandate to defend and protect Canadian consumers and foster a competitive and innovative marketplace in which Canadian businesses can thrive.

In this regard, the committee also heard at length from officials at Innovation, Science and Economic Development Canada. In their view, the introduction of the new concept of internationally recognized methodology in the greenwashing provision is not problematic, as the Competition Act is a principled market-independent framework. The general terms of the act are clarified first by the Competition Bureau through guidelines developed with stakeholders and then by the courts through case law.

More importantly, the Competition Bureau expressed its commitment to reviewing and developing guidelines to incorporate the amendments in Bill C-59, as well as in Bill C-56, following consultation with stakeholders.

The Competition Bureau will strive to implement a solid and predictable framework to ensure that the law is implemented fairly. It is common practice, particularly in competition law, to include in the legislation a broad, liberal, principles-based terminology that will later be defined and clarified by the Competition Bureau based on consultation.

Although the expression “internationally recognized methodology” may seem vague, if we interpret it according to the ordinary meaning of the words and based on the submissions from stakeholders, we can get a better idea of the legislator’s intention here. For example, the stakeholders refer in their submissions to the methodologies used by the European Union.

To ensure Canada’s competitiveness at the international level, it is essential that we adopt a legislative framework that provides the flexibility necessary to incorporate global advancements in environmental matters and adjust our guidelines, policies and regulations accordingly. This approach will enable us to stay on the cutting edge of best practices and remain responsive to the progress achieved elsewhere. Ultimately, this plays a vital role in our ability to remain competitive on the global market and ensure a prosperous future for Canada.

The committee made an important observation in response to stakeholders’ concerns. I thank Senator Dalphond for proposing it, and I also commend Senator Gignac, who worked with him on this.

I also want to thank Senator Ross, who courageously proposed an amendment aimed at addressing this issue. I will now read the important observation adopted by the committee in its entirety:

The Committee notes that a meaningful proportion of industry players active in Canada have made real efforts to support the move to a net-zero economy and to differentiate their products and firms on this basis. These legitimate efforts should not be deterred or impeded, for fears of the unintended consequences of the pursuit of greenwashing actions.

Your committee believes that meaningful consultation by the Competition Bureau, to set out clear guidelines in this area, is important, and for any private right of action to be informed by such guidelines as to what may be considered deceptive in the area of environmental pursuits.

Furthermore, while clause 236 (1) of Bill C-59 notes the importance of internationally recognized methodology to substantiate such claims, the Committee believes that the analysis should also include federal and other Canadian best practices, such as those set out by Environment and Climate Change Canada.

This observation, the interventions of the Competition Bureau following the adoption of the amendment and the work carried out by the Standing Senate Committee on National Finance should instill in us confidence that the bill contains all the necessary safeguards to ensure proper implementation, particularly regarding the section amending the Competition Act.

The amendments to the Competition Act in Bill C-59 are just one part of a broader legislative reform of the competition law regime in Canada. Initiated from a consultation led by a former colleague, former senator Howard Wetston, the Budget Implementation Act, 2022, No. 1, formerly Bill C-19, introduced several significant changes. Subsequently, Bill C-56 also proposed various amendments to the Excise Tax Act and the Competition Act, thereby fitting within the framework of this reform. Therefore, Bill C-59 represents the continuation of a long-awaited reform, built upon the work of our former colleague. I express my gratitude to former Senator Wetston for his tireless efforts. He has been a pioneering force in modernizing our competition regime in Canada.

Let’s now move on to observations on affordability. This brings me to the second observation adopted by the committee concerning affordability, which is also important to mention. This observation highlights numerous provisions within the bill, encapsulating its spirit and purpose while emphasizing the significance of our dedication to realizing these objectives through concerted efforts. I thank Senator Pate for proposing the following observation, which was also adopted by the committee:

Since the government has identified housing and food affordability as priorities in Bill C-59, it must ensure its policy decisions are supported by adequate implementation of the bill’s proposed tax fairness measures and that they effectively address income security and inclusion for Canadians experiencing financial instability and most in need.

With respect to access to affordable housing and measures to improve the quality of life of Canadians, I would like to remind senators of some of the important measures in Bill C-59.

The bill would provide an investment tax credit for carbon capture, utilization and storage, as well as an investment tax credit for clean technologies.

These measures are designed to stimulate investment in order to create good jobs. They will position our country as a leader in attracting investment, while building a stronger, low-carbon economy.

The bill would temporarily remove the GST from the construction of new rental housing built for or by cooperative housing corporations that offer long-term rentals.

Bill C-56 implemented such a measure for new rental housing projects. The current bill goes even further to increase the new housing supply even more.

I will now address some of the measures that I did not have the opportunity to address in my speech at second reading.

Regarding the excessive interest and financing expenses limitation, part 1(a) of Part 1 of Bill C-59 introduces rules to limit excessive interest and financing expenses, known as the EIFEL rules. These rules are designed to prevent the erosion of the Canadian tax base through excessive interest deductions. They target large multinational corporations and are consistent with the recommendations of action 4 of the OECD’s action plan on tax base erosion and profit shifting. By adopting these rules, Canada is harmonizing with its G7 international partners, including the United States, the United Kingdom and several European Union member states.

Regarding hybrid arrangements, part 1(b) of Part 1 of Bill C-59 also aims to prevent the erosion of Canada’s tax base by neutralizing the tax advantages of hybrid arrangements. Hybrid arrangements are cross-border tax avoidance structures that exploit differences in the tax treatment of business entities or financial instruments under the laws of two or more jurisdictions, with the aim of generating deduction/non-inclusion mismatches or double-deduction mismatches. The former refers to a deduction in respect of a payment in one country without taxable income for the recipient in another, while the latter refers to deductions available in several countries in respect of a single expense.

By adopting these rules, Canada is harmonizing with its G20 international partners, including the United States, the United Kingdom and several European Union member states.

Let’s turn now to intergenerational business transfers, something that Senator Forest really cared about. Part 1(d) of Part 1 of Bill C-59 aims to facilitate the intergenerational transfer of a business while protecting the integrity of the tax system.

You may recall Bill C-208, An Act to amend the Income Tax Act (transfer of small business or family farm or fishing corporation), which was passed by the Senate in June 2021 and received Royal Assent on June 29, 2021. The rules introduced by Bill C-208 contain ineffective safeguards and apply in the absence of a legitimate transfer to the next generation. Bill C-59 aims to correct these shortcomings, while retaining the spirit and intent of the bill.

More specifically, Bill C-59 would ensure that the exception to the anti-surplus stripping rule only applies when a genuine intergenerational business transfer takes place.

To offer some flexibility to taxpayers interested in undertaking a genuine intergenerational transfer, two options are available: Either an immediate transfer over three years based on arm’s length conditions of sale, or a gradual transfer over five to ten years based on the traditional characteristics of estate freezing. Immediate transfers offer greater certainty earlier in the process, but entail more stringent conditions, whereas the progressive transfer approach offers added flexibility.

Let’s now turn to the sharing of confidential taxpayer information for the purposes of the Canadian Dental Care Plan. Part 1(o) of Part 1 of Bill C-59 seeks to change the tax law to give Public Services and Procurement Canada access to confidential taxpayer information so as to help implement the permanent Canadian Dental Care Plan. Employment and Social Development Canada will be able to retain the services of Public Services and Procurement Canada to help administer the Canadian Dental Care Plan.

Senators will recall that the government’s plan includes the Canada Dental Benefit, which gives families with incomes below $90,000 direct payments of up to $1,300 per child under the age of 12 years, over the next two years, to cover their dental care costs.

Employee ownership trusts are Senator Omidvar’s special initiative. Part (q) of Part 1 of Bill C-59 aims to establish a standard framework for what constitutes an employee ownership trust and its associated tax treatment. These rules define which employees qualify as beneficiaries of an employee ownership trust, or EOT, and their rights to receive distributions from the trust and to vote on the trust’s basic affairs. It also contains provisions to prevent former owners of the company from participating as beneficiaries or exercising undue influence on the governance of the EOT.

Regarding federal financial institutions, Division 1 of Part 5 of Bill C-59 would introduce legislative amendments to allow federal financial institutions to hold virtual-only shareholder meetings, and to allow the introduction of conditions guaranteeing adequate participation.

This amendment would align the laws governing financial institutions with the Canada Business Corporations Act, which allows federally incorporated companies to hold virtual-only shareholder meetings.

Division 5 of Part 5 of the bill amends the Canadian Payments Act to extend eligibility for membership in Payments Canada to three types of regulated entities, specifically payment service providers supervised under the Retail Payment Activities Act, local credit unions that are members of a central cooperative credit society, and operators of clearing houses designated under the Payment Clearing and Settlement Act and supervised by the Bank of Canada.

This measure will enable local credit unions and payment service providers to access Payments Canada systems, thus improving their electronic payment services and offering faster, more predictable transfers to and from unaffiliated accounts. It also demonstrates progress towards stakeholder-supported payments modernization.

Public post-secondary educational institution insolvency is my project. In Division 7 of Part 5, the government is proposing to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act to exclude public post-secondary educational institutions from becoming subject to proceedings under these laws. The government has engaged with provinces and territories and sought feedback from universities, colleges, experts, lenders and other post-secondary education stakeholders to explore ways to better protect the public interest functions of post-secondary educational institutions in insolvency and restructuring situations.

The amendments propose preventative solutions to financial distress that consider the important public interest functions of these institutions, as well as the provincial and territorial jurisdictions over post-secondary education.

I will now speak on Division 8 of Part 5, which concerns money laundering, terrorist financing and sanctions evasion. The government is committed to maintaining a robust anti-money laundering and anti-terrorist financing, or AML/ATF, regime to protect Canadians and the financial system’s integrity. The 2023 Fall Economic Statement proposed several legislative amendments to strengthen this framework.

In a nutshell, Bill C-59 proposes the following changes:

On sanctions evasion, it amends the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or PCMLTFA, to enable the Financial Transactions and Reports Analysis Centre of Canada, or FINTRAC, to combat sanctions evasion and to disclose findings to law enforcement.

On operational effectiveness, it amends the Criminal Code to target third party money laundering, update crime-related search and seizure provisions, and adopt financial data production orders for digital assets.

On trade-based money laundering, it amends the PCMLTFA and the Customs Act to enhance the Canada Border Services Agency’s authority to regulate trader compliance and enforce laws.

On white label ATMs, it broadens the PCMLTFA framework to include intermediary companies offering cash withdrawal services for white label ATMs. 

On environmental crime, it amends the PCMLTFA to allow FINTRAC to share intelligence with Environment and Climate Change Canada and Fisheries and Oceans Canada.

On strategic intelligence, it improves FINTRAC’s intelligence products by listing foreign entities and addressing technical inconsistencies.

These measures will improve the AML/ATF regime and help modernize financial crime prevention.

Division 9 of Part 5 of Bill C-59 seeks to amend the Federal‑Provincial Fiscal Arrangements Act to clarify the government’s intention to publish details regarding payments related to the major transfer programs in order to meet its publishing obligations. This will give Canadians access to detailed and up‑to-date information on equalization payments and the other major transfers to the provinces and territories.

Division 10 of Part 5 of Bill C-59 makes adjustments to the composition of the board of directors of the Public Sector Pension Investment Board and to the process for recalling funds. Under the new version, the number of directors would increase from 11 to 13, and the two new seats would be occupied by labour representatives.

Honourable senators, Bill C-59 advances key components of the government’s economic plan by delivering on the main elements of the 2023 Fall Economic Statement. It represents a significant step toward achieving our economic objectives and it strengthens our commitment to the prosperity and well-being of all Canadians.

The number of projects that I spoke to you about today gives you a good idea of the scope of this bill and the elements it contains.

With that, I thank you for your attention.

Will Senator Moncion take a question?

With pleasure.

Colleague, thank you for your leadership on this file. Thank you as well for your open-mindedness when we come to you voicing our concerns and looking for reassurance.

One of the tax measures in this bill that concerns me a great deal relates to the 3% tax on digital services. Although the Minister of Finance tabled a notice of ways and means motion in December 2021, it took almost two and a half years before a bill was introduced. I think the minister wanted to negotiate a multilateral agreement with other OECD countries, but that did not work out. As a result, companies are being charged a 3% tax, retroactive over two years. To the extent that the businesses involved are large American companies, like Netflix and Disney, which boast 30% profit margins, no one is shedding any tears for them. However, for smaller businesses, like travel agencies, which have a 6% profit margin, a 3% retroactive tax could hurt.

Given that the American ambassador to Canada has warned our government that it is embarking on something contentious — he even used the words “big fight” when talking about what could happen — can you give us some reassurance, especially on the verge of a change in Washington? Do you have any guarantees that all these measures will not be challenged and that, ultimately, we will not be forced to amend this bill?

Thank you for the question, Senator Gignac. You’re asking me to give you guarantees. I can never give you any guarantees, either as a senator or from a decision‑making standpoint.

Thank you for reminding us of the chronology of events. The digital services tax was announced in the fall of 2020. At that time, a sort of agreement was reached whereby the government would try to negotiate with the various companies to reach an agreement. In October 2021, the government postponed the imposition of the digital services tax until late 2023. At the end of 2023, the government presented its economic statement for 2023 and announced its plans. This gave businesses time to begin setting aside funds to pay this tax.

In the meantime, given the absence of a firm timeline for implementing pillar 1, and since other countries continue to collect the tax — because other countries have this tax in place — the government said it would protect Canadians by ensuring that companies pay their fair share of taxes. That is what we heard. The bill, published in draft form in December 2021, with amendments made in December 2023, comes into effect on January 1.

I cannot give you any guarantees, and I just gave you the chronology of events. Businesses could get ready. This may affect the negotiations with the government and the government is the one that will have to deal with those businesses on the basis of this situation when negotiations are held. We know that intimidation tactics can be used during negotiations to get a government to back down in situations like this. However, I believe that the government is well placed to negotiate an agreement that could eventually be acceptable for both countries, regardless of who is leading the country.

Thank you for your reply. I understand that you can’t offer any guarantees. I’m sure you will agree that the way things are being done now is definitely not great. For a bill to be introduced so long after a notice of ways and means motion is not ideal. Yes, companies were aware of this, but when I read what was published at the time, it said that, in the meantime, the government would do this and didn’t intend to introduce anything before 2024, but hoped to negotiate a treaty with the other OECD countries.

If I understand correctly, companies like Expedia and Booking were supposed to have set aside money or collected a 3% tax in case the government went ahead with the bill if talks with other OECD countries didn’t work out. That’s not an easy thing for companies to do given the delay between tabling a ways and means motion and introducing the bill. When a bill is introduced, lawmakers can debate it, hear witnesses, submit amendments and take action. With a ways and means motion, people can take notes, but things can change.

Do you agree that this way of proceeding is not ideal and is detrimental to businesses?

Thank you for the question, senator.

We can debate about how this might not be the ideal approach, but it is the approach that the current government decided to take.

From what we have seen from the negotiations with Australia and Europe, there were delays in the negotiations, but in the end the parties came to an agreement and found some common ground. I think that Canada is at that point with its American partner.

This may not be ideal, but you’re a banker, just as I was, and you know that we had no choice but to include provisions for all sorts of scenarios and contingencies. I would imagine that the businesses that do their accounting properly and that know that such contingencies exist must put money away to prepare for such situations.

Honourable senators, what a day of robust discussion about competition law reform in the Senate. That’s a great day from my standpoint, and I’ve long awaited the arrival of Bill C-59, the fall economic statement implementation act, 2023. Bill C-59 includes several specific measures that will increase competition, drive innovation, improve productivity growth and, ultimately, improve our prosperity. However, I think it is worth repeating our collective frustration in receiving not one but two complex spending bills from the House of Commons in the last couple of weeks.

The 546-page Bill C-59 was tabled in November — nearly seven months ago. Yet, it arrived just before the 686‑page Bill C-69, the current budget implementation act, 2024, No. 1, which was tabled only two months ago. I think it’s irresponsible to force the Senate to rush our study of these highly consequential bills.

That aside, I am thrilled to be speaking about three of Bill C-59’s legislative changes that I think will drive innovation into our economy. These include changes to the Canadian Payments Act and the investment tax credits for clean technology projects. I will delve into those in a moment, but first I want to review the important changes to the Competition Act and the Competition Tribunal Act.

Over the past two years, this government has introduced the most consequential changes to Canada’s competition laws since the Competition Act was first introduced in the 1980s. Why is this important? Last October, the Competition Bureau released a 20-year analysis of the steadily diminishing levels of competition and steadily increasing levels of corporate concentration right across Canada. More and more sectors now have too few competitors, much to the benefit of our largest firms and to the detriment of consumers. Consumers are finally becoming frustrated, because profits and markups have steadily risen in every industry where concentration is high. Hard-working innovators are frustrated because regulations, initially designed to protect consumers, now represent an all too costly barrier to entry. This regulatory barrier protects oligopolies from competitive threats posed by new innovators, and the lack of robust competitive threats means the incumbent oligopoly feels less pressured to innovate.

Stronger competition policy across the whole of government is now broadly seen as being crucial to stimulating market forces that will do the following: first, help increase business investment; second, improve fairness in the marketplace; and, third, reduce prices for consumers.

What are the proposed changes in Bill C-59, and why are they important? Division 6 of Part 5 includes several important changes to the Competition Act and the Competition Tribunal Act. These changes are the final elements of those considered in Innovation, Science and Economic Development Canada’s consultation on the future of competition policy in Canada, conducted between November 2022 and March 2023. It was a consultation that — as Senator Moncion mentioned — was very much encouraged by Senator Howard Wetston’s earlier work.

The changes in this bill build upon amendments first introduced in Bill C-19, the Budget Implementation Act, 2022, No. 1, which was on wage-fixing and no-poaching agreements, and Bill C-56, the so-called Affordable Housing and Groceries Act, which enabled the initiation of market studies by the Competition Bureau and removed the efficiencies defence.

I entirely support the government and the House of Commons Standing Committee on Finance’s amendments to the Competition Act and the Competition Tribunal Act.

Critics often observe that these legislative changes have occurred in a piecemeal manner over the last two years. In my opinion, this criticism overlooks the fact that these amendments have been intensely focused on giving our competition cops meaningful enforcement powers.

Allow me to share some data to illustrate how incredibly bad things were prior to 2022. The Competition Act amendments in section 92, section 93 and section 97 focus on changing how mergers will be reviewed, primarily by the following: First, the criteria that triggers the requirement for parties to send the Competition Bureau a pre-merger notification are being widened.

For context, Keldon Bester, a fellow and researcher at the Centre for International Governance Innovation, identified that there were 16,000 mergers in Canada between 2016 and 2022. However, he found that the bureau was notified in only 8% of those mergers, and our laws at that time enabled the bureau to challenge only 33 of those mergers in some way. In the last six years in this country, 33 mergers were challenged out of 16,000. That is only 0.2%.

Second, market concentration and dominant market position will now be explicit factors for the tribunal to consider. For context, the C.D. Howe Institute found that since the 1980s, the tribunal heard only eight merger cases. Seven involved concentration levels that created or preserved market shares above 60%, and four of these mergers would create monopolies or near-monopolies. Yet, the tribunal only ordered remedies in two of those cases.

Third, the time frame when the commissioner can challenge a non-notified merger will increase from one year to three years, giving the Competition Bureau the ability to more broadly address “killer acquisitions” and harmful mergers. An especially egregious recent example is Dye and Durham’s purchase of real estate software. The company behaved for a year until the bureau no longer had the ability to act. Over the following months, the company introduced a massive, tenfold price hike.

Fourth, it will ensure that merger reviews consider the effects on labour markets. This will force the tribunal to explicitly consider the lessening of competition in the labour market as a factor in a merger review.

Bill C-59 also introduces private rights of action. This is a highly consequential change because, under specific circumstances, it would allow for private claimants to apply to the tribunal to exercise this right.

Importantly, the tribunal holds a gate-keeping role as it relates to these new rights and could deny cases, particularly if they are considered frivolous or vexatious. This gate-keeping role is not new to the tribunal. Additionally, these rights will come into force one year after the bill receives Royal Assent.

Bill C-59 also responds to growing calls to empower a consumer’s right to repair their products by broadening the “refusal to deal” provisions in the Competition Act. These amendments complement the proposed amendments to the Copyright Act in the two right-to-repair bills currently at committee stage here in the Senate, Bill C-244 and Bill C-294. I’m sure you all recall my riveting speech on Bill C-244 as it relates to technological protection measures.

Lastly, and very importantly, Bill C-59 includes a timely response to the shocking decision rendered by the Competition Tribunal on August 28, 2023, when the tribunal awarded Rogers Communications and Shaw Communications $13 million to offset their legal fees. You may recall that beginning in April 2022, the bureau undertook to challenge the Rogers and Shaw merger under Canada’s completely outdated Competition Act. When the bureau lost this challenge, the tribunal ordered the bureau to pay the merging parties’ legal fees because of how vigorously the bureau fought this merger based on compelling evidence. I think the decision caused a “WTF” moment across the country — that stands for “what the fuddle duddle” — because of the realization that taxpayers would be paying these legal fees.

As a result of this outrageous decision, I was especially pleased to see the government amend the Competition Tribunal Act to ensure that, in the future, the robust defence of competition in case adjudication would not result in legal cost awards.

Those are, broadly speaking, the government’s proposed amendments introduced in Bill C-59.

Additionally, the Competition Bureau submitted several recommendations to further strengthen Bill C-59, and most of these were accepted at committee stage in the House of Commons. These amendments included, firstly, removing legislative loopholes to further prevent companies from hiding additional fees through drip pricing and to encourage price transparency. We’ve all seen drip pricing cause prices to creep up as much as 30% through the addition of a convenience fee, a processing fee, a cleaning fee, a resort fee — you name it. The bureau’s objective is simple: Businesses should advertise and compete based on their fully costed price.

The second amendment recommended that businesses who promote their interests using environmental claims be required to substantiate those claims if and when challenged by the bureau. I think we heard our colleague speak strongly about this.

The third involved adopting a reverse onus approach where businesses must prove their discounts are legitimate if challenged by the bureau.

The fourth dealt with implementing new remedies for anti‑competitive mergers specifically intended to restore or preserve the level of competition that existed prior to an anti‑competitive merger.

I want to pause for a second on this one. Historically, increased concentration was guaranteed in the Canadian economy. Why? Because until now, if a merger was expected to cause a substantial reduction in competition, the remedy could only remove the word “substantial,” not the word “reduction.” We were guaranteed that every merger in this country would make an industry less competitive and more concentrated. With the implementation of this amendment, the pre-merger levels of competition must be restored. That’s a very good thing and a big change.

Finally, the House Finance Committee went beyond the original request from the Competition Bureau and made an amendment in clause 236 that broadened deceptive marketing practices to include environmental misrepresentations that would be assessed using, and we heard this before, “. . . internationally recognized methodology . . . .” This was intended to capture greenwashing claims, but instead the definition introduces uncertainty because no specific methodology exists. Uncertainty is anything but helpful for anyone, including the Competition Bureau.

At the Senate’s National Finance Committee, Senator Ross introduced an amendment to remove these three words but it was defeated. I completely support the concerns that were compellingly argued by Senator Ross and Senator Tannas and that were cited in the committee’s observations. However, I believe that we will be seeing clarifying guidance well before this provision comes into force, which the bureau committed to in a letter to the committee.

The fact that we were only able to discover and address this problematic issue at the last minute is yet another illustration of the challenges created when the Senate is not provided with sufficient time to fulfill our legislative responsibilities.

Colleagues, over the past two years, tremendous progress has been made in competition law reform. I commend the government for their efforts. However, we are far from done. We still require a robust, whole-of-government approach to removing anti-competitive policies, programs, regulations and legislation across each department and agency. Why? Because Canada has Organisation for Economic Co-operation and Development, or OECD-leading levels of regulatory burden. We have too many command-and-control regulations that describe the process that must be followed rather than the desired outcome to be achieved. This eliminates the ability to innovate.

We need to act with national urgency across our government and economy. A leading researcher in this field, Professor Thomas Ross, provided compelling testimony at the House Industry Committee on June 10 when he observed that:

. . . the Competition Act, the bureau and the tribunal really just take care of one big slice of competition in Canada but not the whole pie.

Outdated and anti-competitive programs, policies and regulations exist across the whole of government, and Canada’s global competitiveness will never improve until we begin to streamline this burden.

I’ve long said that you can never regulate a company into becoming customer-centric; only competition can achieve that all-important goal. I want to give you an example that I was just reminded of today. Australia’s National Competition Policy encompasses all levels of government and has reviewed and updated over 1,800 laws and regulations. Federal transfer payments enable states and territories to be important partners, and the effort has been conservatively estimated to result in a permanent 2.5% increase in Australia’s GDP worth roughly $5,000 per household per year.

The return on investment from streamlining our regulations and our legislation is significant. Australia has proven it, and Canada can do it.

Continuing on the theme of increased competition driving innovation, Part 5, Division 5 of Bill C-59 includes changes to the Canadian Payments Act. These changes will allow new members to join Payments Canada, specifically those who are payment service providers supervised by the Bank of Canada under the Retail Payment Activities Act, which was an important part of Budget 2022.

The Bank of Canada’s accreditation process for payment service providers has been developed in a robust and inclusive manner. Many of these new regulated participants are innovative, Canadian-based financial technology companies that will introduce responsible regulated innovation into Canada’s payment systems, which manage roughly 20 billion transactions worth about $10 trillion a year in this country.

They also include credit unions that are part of a credit union central. A credit union central is a service provider that manages the financial infrastructure for multiple member institutions. Credit unions can often be the only financial institution in our rural and remote communities, and they’ll finally have a direct voice at Payments Canada. They’ll also be able to access the Bank of Canada’s liquidity support.

Additionally, proposed changes to the Canadian Payments Act will make sure that the Payments Canada Stakeholder Advisory Council cannot include any Payments Canada members. This change will help the advisory council to better represent the views of all users in the payment system, like merchants, when giving advice to the Payments Canada board. It’s a small step towards good governance in the Payments Canada world, and good governance is crucial to establishing trustworthy payment systems.

My consistent concerns with Payments Canada’s governance are primarily due to repeated delays in implementing Canada’s Real-Time Rail payment system. Canada is now dead last in the G7 in introducing real-time payments, something that is crucial to providing Canadian businesses and citizens with instant financial transaction processing, improved cash flow and better and quicker fraud detection.

While it was first initiated in 2015, Payments Canada says it now expects Canada’s Real-Time Rail to begin to be implemented in 2026. I’m compelled to note that 56 other countries never had these lengthy delays that put their citizens and businesses at a competitive and costly disadvantage, so I’m glad that we’re seeing progress, but I continue to worry that tomorrow may never come.

Lastly, I’m incredibly happy to see Part 1 of Bill C-59 includes clean technology investment tax credits that were first introduced in the 2022 Fall Economic Statement and then again in Budget 2023. This is a refundable tax credit for businesses that invest in eligible clean technology equipment, including things like carbon capture, low-carbon heating equipment, zero-emission equipment and other energy systems that do not consume fossil fuels, systems like wind power.

How does this work? Businesses investing in these technologies can get a refundable tax credit of up to 30% on their investment costs, making it easier to support clean technology projects that might otherwise be too expensive. With the federal government’s goal of reaching net-zero emissions by 2050, including attaining net-zero electricity by 2035, it’s imperative that we continue to align incentives to catalyze innovation.

The Nova Scotia government expects these tax credits to generate, in our province, more than $450 million in construction activity and create about 1,700 direct and indirect jobs over their lifetime, mostly in rural Nova Scotia. Additionally, they’re expected to deliver tangible savings to Nova Scotians by lowering the average cost of electricity, saving taxpayers an estimated $100 million annually over the next 25 years — that’s $100 million annually in reduced electricity costs. The projects will be operational by the end of 2025 and will reduce Nova Scotia’s greenhouse gas emissions by more than one megatonne annually, continuing to accelerate Canada’s net-zero transition.

Colleagues, each of these initiatives in Bill C-59 harnesses innovation to improve the lives of Canadians. For this reason, I’m very happy to support this bill — thrilled, in fact.

One other thing came to mind when Senator Moncion was speaking. You may recall in 2021, three years ago, we were debating Bill C-208, a private member’s bill from the House of Commons. It was working to make fair the intergenerational transfers between farming, fishing and small business operations that were not being given access to the lifetime capital gains tax exemption that everybody else in Canada had access to. There was significant pushback on this bill from the government in June 2021, but we held firm in the Senate and supported that bill supported by the House of Commons. A lot of us felt a lot of pressure at that time, and Minister Freeland was very concerned that this would unlock a whole series of inappropriate transactions, inappropriate intergenerational transfers. In fact, she fought back even on the coming-into-force date.

In the end, two and a half years later, there wasn’t evidence of a whole lot of fraud, but she did come through and put in place restrictions in this bill to make sure those would not occur in the future. We held firm. We did our job and were independent from pushback against that bill, and in my mind, we did the right thing. It’s wonderful to see the loop being closed now, eventually by the government, and we can be very proud of the work that we did.

I want to congratulate Senator Moncion for her speech, for her work and also for her work around bankruptcy and insolvency in post-secondary institutions. It’s great to see that in the bill as well, Senator Moncion. Congratulations.

Thank you, colleagues.