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‘Gap in legislation’: Stronger law needed to launch wage-fixing probe into grocers’ behaviour

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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 Bureau Commissioner Matthew Boswell.
Competition Bureau Commissioner Matthew Boswell. Photo by James Park for Postmedia News

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.

U.S. authorities are also very concerned about employers exchanging information regarding compensation

Mark Katz, Davis Ward Phillips & Vineberg

In the U.S., wage fixing and other labour-related schemes are consideredper se illegal and don’t require any proof of a negative impact,according to a comparison of the Canadian and American approaches to wage fixing written by Mark Katz, a partner at Davies Ward Phillips & Vineberg LLP.

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