THE SUPREME COURT AND STRENGTHENING THE CONDITIONS FOR EFFECTIVE COMPETITION IN THE CANADIAN ECONOMY
AbstractThis paper evaluates the contributions of the Supreme Court of Canada to strengthening the conditions for effective competition in the Canadian economy. It proceeds by first examining the evolving position of the Supreme Court with respect to the federal government's external treaty making powers, specifically trade liberalization treaties, and notes indications that the Court is prepared to reconsider the scope of the Labour Conventions doctrine which precludes the federal government from implementing external treaties that encroach upon provincial jurisdiction. The paper then describes and evaluates the contributions of the Supreme Court to strengthening the Canadian economic union by constraining internal trade barriers. Again, the paper notes significant evolution in the Supreme Court's thinking on both negative integration i.e. constraining the ability of the provinces to adopt policies that create inter-provincial barriers to trade, and positive integration i.e. the ability of the federal government to adopt legislative or regulatory policies designed to promote the fuller integration of the Canadian economy. The paper then contrasts the approach of the Agreement on Internal Trade entered into between the provinces and the federal government in 1995 to promote the fuller integration of the Canadian economy through both negative and positive integration commitments and through adoption of a non judicial form of dispute resolution. Finally the paper examines the contributions of the Supreme Court to the development of Canadian Competition Policy, concluding that in general the pre-Charter Court's jurisprudence on mergers, monopolies, and conspiracies weakened Canadian Competition Law in undesirable ways, while post-Charter decisions of the Court have generally shown much more economic sophistication in the interpretation of Canadian Competition Law. In all of the areas reviewed the paper concludes that major institutional substitutes for the courts have emerged over time, thus underscoring the existence of actual or potential institutional competition and the importance of avoiding judicial complacency in the discharge of the Court's functions with respect to the Canadian economy.
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