Stikeman's Lawson Hunter reflects on his time as 'dean' of competition law in Canada

Lawson Hunter’s long history as one of the preeminent lawyers in Canada in competition and regulatory law might not have happened if it had not been for a fortuitous decision to move to Ottawa 50 years ago.

“It’s like a lot of things in life, where if you hadn’t been in a particular place at a particular time, your whole life might have turned out differently,” says the long-time senior counsel at Stikeman Elliott LLP. He recently was honoured with the Order of Canada “for his distinguished career in government, business and private practice as one of the country’s leading competition and antitrust lawyer.”

Hunter moved to Ottawa in 1972 after getting his master’s degree from Harvard University and spending a year at the famous Woods Hole Oceanographic Institution (his master thesis was on oil pollution and the oceans). “I was heavily into international law and environmental law at the time,” he says, having been called to the bar in 1971 after studying at the University of New Brunswick.

Instead of practising in this area, Michael Pitfield, perhaps one of the most influential civil servants of the 1970s and early 1980s, hired Hunter as his executive assistant in the department of consumer and corporate affairs. (Pitfield later became Clerk of the Privy Council of Canada and Secretary to the Cabinet under Prime Minister Pierre Trudeau from 1975 to 1979, and again from 1980 to 1982.)

At the time, the consumer and corporate affairs department was helping to develop amendments to the Competition Act, and Hunter played a crucial role. He later went to work for the head of the Competition Bureau, then spent a bit of time with the Justice Department before returning to the Competition Bureau to become head of its legal services division.

By 1981, Hunter was appointed Commissioner of the Competition Bureau, and eventually, the government passed amendments to the Competition Act. “That was a significant achievement,” says Hunter, “because the federal government had been trying since the 1960s to amend competition policy and had not been able to do so.” While there have been further amendments since then, Hunter says that today’s Competition Act is essentially the same.

“It’s an important piece of legislation because it has so much impact on business and different parts of economic life — mergers, price-fixing, collusion, for example,” he says. One significant change in the amendments to the Competition Act was that it took it out of the exclusive realm of criminal law and developed a civil law basis for reviewing transactions and other aspects of competition policy.

After the bill was based, the Supreme Court of Canada ultimately upheld the federal government’s jurisdiction to pass competition legislation under its trade and commerce powers. That was an important step, Hunter said, as it gave the federal government jurisdiction over competition law “whether it related to two hairdressers merging in Fenlon Falls, or Rogers and Shaw merging across Canada.”

For Hunter, dealing with competition law meant he met the most senior levels of management in the business world. “With so many other parts of the bureaucracy, you’re a bureaucrat dealing with other bureaucrats, but with competition issues, you’re dealing with very senior businesspeople.”

Hunter eventually moved to practise law within the private sector. From 1993 to 2003, he was a partner of Stikeman Elliott and head of the firm’s competition and antitrust group. From 2003 to 2008, Hunter served as executive vice-president and chief corporate officer of Bell Canada and BCE Inc, responsible for overseeing regulatory, governmental relations and corporate affairs.

“Working for a big company like Bell, you really learn accountability,” Lawson says. “If you are working inside a firm, rather than on a consultant or outside adviser basis, you really understand that what you do or don’t do has ramifications for the company, and you have to take responsibility.”

Hunter took this understanding of accountability with him when he returned to Stikeman in 2008 as counsel. From April 2010 to May 2012, Hunter stepped in as head of the competition and foreign investment group at Stikeman before returning to his current role as senior counsel, advising Canadian and multinational corporations on all aspects of federal regulatory law and policy.

Today's bones of the Competition Act are very similar to what Hunter helped develop in the 1970s and 1980. But the man who many call the “dean of competition law in Canada” says we are likely entering a period where many countries, including Canada, are considering how to make changes in competition law to reflect the current environment of technology and the role of Big Data.

Lawson points to the so-called “hipster antitrust” movement as one of the factors that might drive competition policy in the future.

Traditionally, competition watchdogs have focused on the consumer welfare standard, identifying anti-competitive behaviour that hurts customers, typically by raising prices. But recently, a movement began to push for a more expansive view that would consider how companies’ behaviour impacts socio-economic problems like low wages and unemployment.

Critics of this view have derided competition policy that tries to address societal ills, lacks traditional economic analysis, and generally sees big as bad. Proponents of the progressive theory say the standard of impact on consumers falls flat when, for example, online platforms like Amazon use low prices to entrench dominance. It is essential to consider factors like data, these critics say.

“Whether it’s fair or not fair to characterize these firms as monopolies is a very good question,” says Hunter, “Most of the time, I don’t think they are, but I think that big data has been an impetus for some to think we should do something, and that has become a topic for debate.”

Typically, competition policy is an economic policy and represents an attempt to map a particular aspect of our economy, Hunter says. “But now people are saying, well, ‘what about privacy?’ or ‘What about the environment?’”

He adds: “I have to say I certainly lean against this view. Because I think it will politicize the process. But some people are saying [competition policy] is too narrow. We need to make it broader. The question is, how do you make it broader without throwing the baby out with the bathwater?”

When he is not practising law, Hunter takes an active interest in the local arts scene. His roles have included chair of the Ottawa Art Gallery, 2009 to 2018 and 2003 to 2006, and director of the Ottawa Art Gallery, 1997 to 2003. He’s also involved in an advisory group for a new portrait gallery in Ottawa.

“I have a fairly large art collection and developed interests with the arts community,” he says. “I think it is so important that the nation’s capital has important venues for art.”