Weekly Roundup: Google Loses Again in Canada's Competition Court
Plus: Airlines caught in one scandal after another, Amazon scores a win in fake review case, and did the CIA conspire to make a more compliant music industry?
Google has suffered more defeats on the way to its online monopoly trial in Canada, which begins in January, 2027.
The Competition Tribunal this week threw out nine motions made by the company in the case brought by the Competition Bureau, which is arguing that Google is harming the online marketplace by abusing its dominant positions in search and advertising. Google was trying to avoid having some of its top executives provide the same testimony used in a similar 2024 U.S. antitrust trial, and to disqualify some of the Bureau’s existing evidence.
In both instances, Justice Andrew Little mostly dismissed Google’s arguments, handing the Bureau several small wins and $10,000 in legal costs.
Lawyers for the Bureau had requested that 12 Google employees, some of whom are top executives, review around 600 pages of transcripts from the U.S. District Court proceeding, in which the company was ultimately found to be a search and online advertising monopoly.
Google countered by saying that such a request was “voluminous and overly burdensome.” The Bureau said the company’s response and motion was disingenuous and “nothing more than a baseless tactical move.”
Little agreed, for the most part, and ordered Google to confirm whether the testimony given in the U.S. case by three executives – Nirmal Jayaram and Nitish Korula, both senior engineering directors, and YouTube chief executive Neal Mohan – remains true and accurate now, or whether and how it has changed.
Little also dismissed a number of Google’s motions related to the Bureau’s previous three-year investigation, which concluded in 2016 without finding sufficient evidence that the company had engaged in anti-competitive conduct in online search and advertising.
Google was looking to question Bureau staff how that previous investigation had affected the decision to launch a new case against the company. But Little ruled that “Google’s questions are not proper… and need not be answered.”
This week’s defeats follow a more significant loss by Google last month, in which Little also dismissed an attempt by the company to qualify the case against it as criminal rather than civil, which would have granted it protections under the Charter of Rights and Freedoms.
🥊 COMPETITION
Speaking of the COMPETITION TRIBUNAL, the federal government has quietly reappointed two of the lay members who make up the court’s panel. Stephen Law, an economics professor at Mount Allison University, and Ted Horbulyk, an associate professor emeritus of economics at the University of Calgary, were set to have their terms expire on Apr. 15, but both have been extended until Apr. 14, 2030. Two other lay members – Wiktor Askanas, a business professor at the University of New Brunswick, and Binah Nathan, a corporate director – are also due for term expiration this month, though neither appear to have been extended as of this writing. The department of Innovation, Science and Economic Development is responsible for Tribunal hiring. Due to the Easter holiday, we weren’t able to find out if any other candidates were considered or what’s happening with the other terms.
And speaking of hiring, Jeanne Pratt has been upgraded from “acting” to “interim” COMPETITION COMMISSIONER. Pratt took over from long-time commissioner Matthew Boswell, who left the job early in November before his term was set to expire in February. Boswell has since landed as a partner at legal firm Norton Rose Fulbright. ISED is currently taking applications for the full-time commissioner role, until Apr. 8. Pundits suggest that the government’s real position on competition – whether it truly will be as “hawkish” as promised – will largely be revealed by who it chooses for the job.
💾 BIG TECH
The Competition Bureau may have scored some small wins against Google this week, but it also took it on the chin in its separate fake review case against AMAZON. The Federal Court of Appeal has upheld a decision that prevents the Bureau from accessing company data related to health, personal care, home and electronic products sold by the e-tailing giant. The company argued that providing such info would be excessively burdensome, as the request covered a broad array of items. The judge agreed that the Bureau had failed to justify the wide scope of its request. The Bureau says it is assessing its next steps and that its case is ongoing.
In case you missed it, Spencer Callaghan from the CANADIAN INTERNET REGISTRATION AUTHORITY is the guest on the Do Not Pass Go podcast this week. He warns of the dangers of entrepreneurs and businesses relying too heavily on online platforms and their ever-changing whims, and shares advice for what they should do instead. Spoiler: build your own online presence. It’s required listening for anyone doing business online:
✈️ AIRLINES
Canada’s airlines had a hellish week, starting with AIR CANADA announcing the retirement of its embattled chief executive, Michael Rousseau. The news came on Monday, a week after Rousseau posted a video in which he expressed condolences to the families of the two pilots who died in the recent crash at LaGuardia Airport in New York. The video, which was in English only, sparked a fresh firestorm over Rousseau’s continued inability to speak French, a cardinal sin for the head of the Montreal-based airline.
But wait, there’s more! AIR CANADA also got dinged with a $426,000 fine for multiple violations of Air Passenger Protection Rights (APPR) regulations related to cancellations from its flight-attendant strike last summer. The Canadian Transportation Agency this week said the airline had improperly handled re-booking and reimbursing passengers who were affected by the labour dispute in August. Industry critics say the fine is insignificant, but Air Canada plans to appeal it anyway.
We’re not done with AIR CANADA yet. In case you missed it, we had the scoop here at Do Not Pass Go on how the airline used “scare tactics” last summer to get the feds to proactively intervene in that flight-attendant strike. As revealed in documents obtained through a freedom of information request, Air Canada told Jobs and Families Minister Patty Hajdu that the disruption would be worse than those that followed the 9/11 and Covid-19 shutdowns. Hajdu did in fact intervene by ordering attendants back to work just hours after the strike was called. It’s a bit inside baseball, but it’s worth adding here that the minister’s department took two days to respond to three questions we put forward – why she invoked the code so fast, which of Air Canada’s arguments persuaded her to do so, and how much weight she gave to the 9/11 and Covid-19 warnings. The response we eventually got largely ignored the first question and completely ignored the other two. A spokesperson said “our response stands” after we reiterated the questions.
CTV News also this week reported that the federal government, under at least two successive transport ministers, had intervened to limit the compensation that airlines have to pay passengers. Following updates to the APPR in 2023, then-transport minister Anita Anand told the Canadian Transport Agency that she was “disappointed” that the regulator was trying to add mechanical issues and labour disruptions to the list of grounds for which passengers could claim compensation. Her position is linked to heavy lobbying by the airlines, including AIR CANADA and WESTJET, and follows revelations in January by CBC that the feds also worked to undermine efforts to have the companies pay for the passenger complaints system.
And then there’s this whopper: WESTJET has been nailed for lying about supposed maintenance issues with planes and denying passenger compensation for resultant cancelled flights. As one passenger who took the airline to small claims court tells CBC, WestJet cancelled his Edmonton-to-Fort-McMurray trip on the grounds that there were mechanical problems with the plane, only for that passenger to then discover that same aircraft flying later the same day through a publicly available flight tracker. It turns out that the airline had reassigned the plane in question to a more profitable route that did indeed have a mechanical issue, turning the situation into a “business decision.” As CBC notes, this sort of gamesmanship may be widespread.
📱 TELECOM
Several of Canada’s larger cable companies are putting the screws to smaller wholesale-based competitors again by decommissioning copper networks, thereby stranding those providers’ internet customers or forcing them into much costlier services. Montreal-based COGECO has ignored a request by CRTC staff to maintain copper-based wholesale connections for Ontario-based TEKSAVVY, and will cut the service off on Apr. 14. A similar situation is happening in the Maritimes, where EASTLINK is decommissioning copper wholesale services used by FIBERNETICS. Both of the larger cable companies say that affected customers can be migrated to available wholesale fibre services in their respective areas, but the smaller companies are quick to point out that the access costs on those newer networks are still astronomically high – which inevitably means higher prices for customers. “TekSavvy is very concerned not only about how Cogeco’s decommissioning activities affect our customers, our business, and competition as a whole,” says Andy Kaplan-Myrth, the company’s vice-president of regulatory and carrier affairs, “but also about the CRTC’s ability to regulate incumbents that increasingly behave like they are too big or powerful to regulate.”
Fans of competition-policy-as-entertainment have reason to be excited, with the acclaimed Rogers v Rogers one-man play returning to Crow’s Theatre in Toronto this fall. The show, which sold out during its initial run last year and which just completed a stint at Winnipeg’s Royal Manitoba Theatre Centre, returns to Crow’s on Nov. 8 and goes till Dec. 13. It is, of course, based on the book of the same name by Globe and Mail reporter Alexandra Posadzki and focuses on the ROGERS family succession saga that unfolded a few years ago at the same time as the company was trying to complete a mega-merger with SHAW. If you missed it, check out our podcast interview with playwright Michael Healey and our review. Spoiler: it’s amazing, go see it.
🕺 ENTERTAINMENT
While we’re on the topic of entertainment-as-competition-policy, there’s a fascinating narrative – some would say possible conspiracy theory – germinating about how corporate consolidation in radio and television has purposely worked to breed a more compliant culture. It started with SMASHING PUMPKINS front-man Billy Corgan recently suggesting on his podcast that rock music was purposely pushed out of the cultural spotlight in the late 1990s by MTV and the rest of the music industry in favour of rap and then pop, despite still being immensely popular, as a way of promoting artists who were more easily controlled by corporate labels and radio station owners. Charlie Benante, drummer for heavy metal band ANTHRAX, seconded that motion this week in an interview where he noted that consolidation in the radio industry – particularly by CLEAR CHANNEL COMMUNICATIONS, now known as IHEARTRADIO – also served to push out heavier music in favour of corporate-controlled pop. “There was a coup,” he said. It gets even juicier – or wackier, take your pick – with Corgan’s suggestion that the CIA may have been involved. In the context of the ongoing antitrust case(s) going on against LIVE NATION, it’ll be fascinating to see if this narrative gathers any steam or if it just turns out to be sour grapes from a handful of aging rock stars.
🚨 COMING UP
Do Not Pass Go is six months old and we just hit 1,000 subscribers! This Monday on the podcast, we take a quick peek back at a few of the highlights and look forward at what’s to come. In between, we host Canadian SHIELD Institute director VASS BEDNAR and The Hatchet’s ARSHY MANN to dissect the Carney government’s “hawkish” performance on competition issues so far.