Counterfactual

In this episode of the Counterfactual Podcast, we hear from Paul-Erik Veel of Lenczner Slaght LLP about his recent report, Two Decades of Tribunal Decisions: Data-Driven Insights.  After crunching the numbers from 20 years of litigation before the Competition Tribunal, Paul-Erik is here to discuss what the trends can tell us about competition litigation in the past two decades, and what may change in the next two.  If you’re interested in reading the report, you can find it here: https://litigate.com/assets/uploads/20250618-142233-7576-Two-Decades-of-Competition-Tribunal-Decisions-Data-Driven-Insights.pdf.

In this episode of the Counterfactual Podcast, host Julia Potter sits down with Ryan Manucha, author and expert on interprovincial trade, to unpack why Canada still struggles with domestic trade barriers. They discuss the historical roots of these restrictions, the political and economic forces driving recent reform efforts, and how leadership from both Ottawa and the provinces is shaping the future of internal free trade. 

In this Episode, new Section Chair, Dominic Thérien, provides a brief overview of the Section and its committees; reflects on his journey in the Section over two decades; explains the nature and importance of the Section’s interactions with key stakeholders and counterparts, including the Competition Bureau, the Foreign Investment Review and Economic Security Branch, the CBA, the ABA and other bar associations; reflects upon recent developments in the practice area, including multiple rounds of significant amendments to the Competition Act and the Investment Canada Act and related Section accomplishments, including commenting on the proposed amendments before they were passed and commenting on related draft guidelines; and offers his thoughts on what promises to be an exciting year ahead that is expected to include, among other things, more draft guidelines and exciting conferences and other in-person events.

In this episode of the Counterfactual Podcast, we hear from Bruce McCulloch from Freshfields Bruckhaus Deringer and Joe McGrade from Blake, Cassels & Graydon LLP provide US and Canadian perspectives on the key highlights and additional insights from the panel discussion at the 2025 Annual Criminal Matters Committee Town Hall hosted by the CBA Criminal Matters Committee. They discuss emerging trends in criminal enforcement, including declining use of leniency programs, the growing scrutiny of ESG and DEI-related collaborations, and cross-border coordination amid shifting political landscapes. 

In this episode of the Counterfactual podcast, we hear from Kristen McLean, a Senior Competition Law Officer in the Monopolistic Practices Branch about her background and role within the Competition Bureau. This is the latest episode of the new “Better Know the Bureau” series where we “demystify” the Competition Bureau and better get to know the people that make up the Competition Bureau. 

This episode also includes a “sneak peak” of the CBA Competition Law Section’s upcoming Spring Conference taking place May 8 in Toronto.  Register here: https://www.cbapd.org/details_en.aspx?id=na_na25com01a.

The government’s approach to foreign investment in the critical minerals sector, including in circumstances where the target minerals are located outside of Canada, has evolved significantly over the last three years. Niall McGee shares his perspectives based on first hand experience reporting on key developments in this area, including, among others: the government’s October 2022 Policy Regarding Foreign Investments from State-Owned Enterprises in Critical Minerals and the circumstances that led up to it; the government’s November 2022 announcement that it had required three Chinese companies to divest critical minerals investments; some Canadian companies with mineral projects outside of Canada redomiciling to other jurisdictions, in one case prompting the then ICA Minister to warn “it’s never smart to try to circumvent the rules”; the government’s Statement on Net Benefit Reviews of Canadian Critical Minerals Companies on the same day in July 2024 that it announced its approval of Glencore’s Acquisition of Teck’s Coal Assets; the addition in March 2025, the day after some US tariffs took effect, of economic security as a risk factor in the National Security Review Guidelines; and the cumulative potential implications of these developments for the financing of Canadian mining companies and the development of critical minerals projects in Canada.

In this episode, host Kirsten Cirella and guests Majid Charania, Director of Competition Compliance and Outreach with the Competition Bureau, and Beth Riley, partner in the Competition and Foreign Investment Group at McMillan LLP dive into the world of competition law compliance. This episode kicks off our compliance series, providing timely insights into how the recent significant amendments to the Competition Act impact businesses across Canada. Majid and Beth discuss the fundamentals of competition law, practical compliance measures and strategies for promoting a culture of compliance within organizations. This episode aims to provide valuable insights for non-experts and experts alike, helping businesses navigate the complexities of competition law and stay compliant in a rapidly evolving legal landscape.

For further reading on the Bureau’s guidance on developing credible and effective compliance programs, please refer to the Bureau’s Compliance Hub: https://competition-bureau.canada.ca/en/how-we-foster-competition/compliance-and-enforcement/compliance-hub

Host Kate McNeece speaks with Professor Meredith Lilly of Carleton University about the topic that is top of mind for everyone in North America: trade policy!  What does the shift from the Biden Administration to the Trump Administration mean for North American competitiveness?  How does trade policy impact foreign investment in Canada and interact with the national security provisions of the ICA?  What other trade and investment tools does Canada have to improve Canadian productivity and competitiveness?  Is this the end of “North Americanism” or is there still some hope for multilateral relationships?  These topics and more are covered on this episode of Counterfactual.

Listener note: this episode was recorded prior to the announcement of U.S. tariffs on March 4. Please excuse any comments that have fallen out of date in today’s fast-moving political climate.

For further reading on North American competitiveness, see the report of the North American Competitiveness Working Group at the UCSD Center for U.S.-Mexican Studies, authored by today’s guest Professor Meredith Lilly: https://usmex.ucsd.edu/_files/240626.1_WEB_Report_NorthAmericanCompetitivenessWorkingGroup-24Q2.pdf.

Host Charles Tingley speaks with Competition Bureau counsel Irene Cybulsky, lawyer Michael Osborne and Professor Alix Barasch about the Competition Tribunal’s recent decision in the Cineplex case, which is the first litigated proceeding involving allegations of deceptive or misleading “drip-pricing” and resulted in a Tribunal order to pay nearly $39 million in monetary penalties. This episode continues the discussion among panelists from a Canadian Bar Association Marketing Practices Committee brown bag session held on December 10th 2024 entitled "Straight from the Box Office: Perspectives on the Cineplex Decision". We discuss the legal implications of the Cineplex decision and relevant compliance considerations for online marketers.   

In this episode of the Counterfactual podcast, we are joined by Denise Hearn, author, applied researcher, advisor, and resident senior fellow at the Columbia Center on Sustainable Investment, and Vass Bednar, the Executive Director, Master of Public Policy Program at McMaster University and host of the Globe and Mail podcast Lately to discuss corporate concentration, “kayfabe competition”, the financialization of the economy, and more challenges for competition policy to address in Canada.Denise’s and Vass’s new book “The Big Fix” was released on October 15; more information can be found here: https://sutherlandhousebooks.com/product/the-big-fix/ .

This is the final episode in the fall half of our Counterfactual season. Make sure you subscribe to Counterfactual wherever you get your podcasts to ensure you don’t miss our upcoming episodes.