Melanie AitkenQ & A with Melanie Aitken, LLB 1991, Competition Bureau commissioner, on working in the public sector, mapping out your career and keeping the ‘compete’ in competition

This Q & A is the complete version of the one that appears in the Spring/Summer 2012 issue of Nexus.

What made you leave your partnership at Bennett Jones LLP in Toronto to join the Competition Bureau?

I was working on a lengthy case against it. I recognized that the experience on the other side looked pretty interesting and challenging, and more complex in terms of the considerations you had to take into account— the policy dimensions—which, by definition, is simply not your concern when working for a private client. I was anxious to see what it looked like. So Davies [where I was at prior to Bennett] was very supportive of sending me on a secondment at the Department of Justice, as senior counsel, and I worked on a lot of competition cases, and other kinds of judicial review and classic government litigation. At the end of that, I returned to private practice and I took what I learned and funneled it into my practice. And two years later, the then-commissioner approached me about joining the bureau. I think it’s best that you don’t overthink these things, and I really wanted to take on the challenge, and I was convinced, in the long run, it would make me a better counsel, and I have never looked back.

What were your goals as commissioner?

There were some very significant amendments to the Competition Act, so necessarily my first priority as commissioner was to smoothly implement the amendments that had come along somewhat quickly. It was very important to get those off to a good start, to take advantage of the opportunity to enact them in the most effective and efficient way. Secondly, I’m a big believer–and obviously, it’s a bit of a function of my background—in promoting enforcement, certainty and predictability for all of those who are affected by our work. And thirdly, at a high level, I was determined to mix-up the capacity of the bureau, to bring in some folks from elsewhere in government and from the private sector, to complement the already strong team here, so that we would be more agile in meeting the challenges we confront with the new amendments and in an increasingly globalized environment.

What was the most significant thing you’ve had to learn?

There’s lots of process, process and process. But more seriously, it’s a complex place—Ottawa and the public service—and while many of the skills sets are transferable between the private and public sector, in both cases, there are specific things you just have to learn. And it’s not intuitive. But more importantly, you have to be open to learning. By the time you take on a job like this, you think you know a fair bit, but I think you have to be very aware of what you don’t know. And that’s true always, but particularly jumping into this environment. I was very fortunate that I could find a few mentors to help me navigate through that. I think that was my biggest challenge.

What’s been your biggest frustration?

Wishing I could do more. There are a lot of worthwhile things you can take on, and never enough time in the day, plus there are competing priorities, and finite resources to choose among what you take on.

What are your proudest achievements to date?

It’s tough to select just one, as each case is unique. More generally, I get a real charge when we’re working on a case that has a definite impact on the public. I think one of the great rewarding things is I feel there’s an increase in understanding what we’re doing—a growing recognition that we are fighting for the benefit of all Canadians. I like to see a resolution, not endless investigations, and that doesn’t necessarily mean a conviction. There are many positive solutions in terms of changing behaviour, because most businesses are actually trying to comply with the law.

What riles Canadians?

No one wants to be taken advantage of. When I’m looking at cases, considering whether to investigate and potentially take action, I think: can I as a consumer relate to it? I have exactly the same frustrations everyone else does. And if I don’t understand an advertisement, or if I was misled, chances are, I’m not alone in that. A really good example was the Bell case, where after our investigation, we concluded that Bell had been misrepresenting what customers had to pay for various services, such as Internet and TV, and they were hiding information in fine print disclaimers, mandatory charges that obviously made the amount bigger than what they were advertising in a promotion. To Bell’s credit, when we confronted them with that, they agreed to enter into a consent agreement which required them to pay a $10M penalty, which is the maximum we could get, but more importantly, they would immediately cease that conduct. So, if you’re going to advertise things to consumers, don’t lie to them; put the information upfront, so they can make an informed decision.

How do you feel when the bureau takes on big companies, and the changes affect Canadians?

It’s obviously a team effort. My dedicated staff deserve the credit for pursuing the investigations. Really, it’s about doing what we can to educate businesses about what is right and what is wrong, and when it’s wrong, educating them so they stop doing what they’re doing. It’s actually very satisfying, and I think we have an important role to play in productivity and competitiveness in Canadian markets, in trying to make advertisements transparent, and to ensure M&A activities don’t substantially reduce competition.

How does the Competition Bureau balance its role in an increasingly globalized economy, without establishing a business chill in Canada?

That’s a really good question. Luckily I have a very clear role: my role as commissioner is not to pass judgment on transactions, not to pick a preferable transaction over others, but rather in those very few mergers where there is a very real risk of a substantial prevention or reduction in competition, to ensure we pay attention. Typically mergers most often are a positive means to increase competitiveness and achieve synergies and the like, but we need to ensure those under review do in fact have that outcome.  More than 90 percent of mergers that we look at every year are cleared in 14 days. It’s interesting, sometimes those with the worst competitive effects are in smaller markets, so don’t always hit people’s radar screen. But it’s just as important to protect competition in smaller markets as it is in major markets.

What’s a typical day like?

I’m not sure there is one [laughs]. Lots of meetings, as there’s a significant management role to this job, obviously case investigations, strategy meetings and a lot of internal and external stakeholder meetings. But every day I try to stick in some strategic thinking on cases in particular, and how to plan ahead. I see that very much as part of my responsibility. And as a litigator, I can evaluate what the case would look like before the tribunal if we had to take it on. So there’s a fair bit of time spent on strategic planning for the organization. I also run, to deal with my stress.  And on a personal front, I have two little boys, that like all parents, I’m very proud of. I’m lucky.

What would you like to say to the Class of 2012, in terms of mapping out a career?

Well, I always feel a little humbled by that question because I’m still a work in progress. I would say: Don’t be afraid to take risks because you’re afraid you might fail. That’s how you learn most about yourself and certainly about your work. People talk a lot about making a difference, and making a difference with your law degree, and it’s important to recognize that this can take a lot of different forms.  It can be teaching, it can be organizing a moot court for students still in law school, it can be simply supporting your law school, all while in very traditional practice. So I don’t think that if you’re in traditional practice that you can’t make a difference.  I think you can have it all, you probably can’t have it all at the same time. That’s true for men too. How do I do the kids and career thing? On some days,  not very elegantly.

Photo: Tony Fouhse