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In an online Leger poll this spring, Canadians were asked about the current state of free speech in our country. Shockingly, 57 per cent of people surveyed felt free speech is ‘somewhat’ or ‘seriously’ under threat in Canada.

There are many reasons Canadians might feel this way. A quick news search will give you plenty of examples. But who would have thought a serious threat to free speech would come from Canada’s Competition Act?

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Most Canadians don’t know or care much about the Competition Act. It doesn’t make for great reading, unless you’re a lawyer, and it’s hard to see how it affects people’s daily lives. But it does. It provides important protection for consumers by making sure companies don’t get so big they control the market or engage in anti-competitive practices like price-fixing. It also protects consumers against false or misleading advertising.

In late June, the Act’s advertising rules were expanded to take aim at “greenwashing,” requiring that companies be able to prove any claims they make about how a product or business activity might benefit the environment. Sounds reasonable – so what’s the problem? As with everything, the devil’s in the details. Or in this case, the complete lack of details.

It’s telling that these legislative changes were introduced with little notice, no consultation and no time for Canada’s business sector to provide input. They were quietly buried in a larger bill, along with changes to other pieces of legislation, and one of the most concerning changes was added at the last minute before the bill was passed into law on June 20.

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Laws are better when their intent is clear and not open to too much interpretation. With these latest revisions to the Competition Act, the barn door was left wide open to interpretation.

For example, in just about any sector across the country, you’ll find businesses that have spent a lot of time, effort and money on plans to get their greenhouse gas emissions down to net zero by 2050 to help Canada achieve its climate goals. Under the revised Competition Act, talking publicly about those plans gets a lot harder and a lot riskier.

With the threat of significant penalties, including fines of up to three per cent of annual worldwide gross revenues, companies are now on the hook to prove their environmental representations based on “adequate and proper substantiation” – terms which are vague and open-ended – and in accordance with an undefined set of “internationally recognized” methodologies which in many cases may not exist. Companies have been left to figure out for themselves how to meet a new standard of proof that is so broad and ambiguous it is essentially meaningless and unprecedented in Canadian competition law.

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But there’s more …

The Commissioner of Competition is responsible for enforcing the misleading advertising provisions in the Act. However, under the new rules, private groups, including activists, will also have new powers to enforce the Act themselves. A private person or group will be able to launch legal action directly by applying to the Competition Tribunal making allegations regarding a company’s environmental claims and asserting that the case is “in the public interest.” This public interest test is something else that was just added to the Act which could set a pretty low bar, depending on how it’s interpreted.

Bottom line – you take a vague and meaningless standard of proof, open the door to anybody who wants to abuse it and you’ve got a recipe for frivolous lawsuits that will make any company in Canada think twice before communicating about environmental initiatives, even when they have solid evidence to back their claims. It’s just not worth the time, money, effort and risk it would take to defend lawsuits that could drag on for years.

To some, this may sound like an overreaction. But in the oil and gas industry, where we’ve been the focus of activist groups for a long time, it’s a real and present danger to our ability to be transparent with Canadians. And it comes at a time when all Canadian businesses are under increasing pressure from governments, investors and the public to communicate more about their environmental plans and performance, not less.

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To be clear, the member companies of the Pathways Alliance agree that public communications should be accurate and supportable, and we have no issue with setting clear rules to achieve that. While it may already be law, the Competition Bureau is under increasing pressure to provide guidelines to at least reduce the significant uncertainty that’s been created for industries like ours and we’re glad to see they’ve launched consultation. We hope they get it right.

This not only impacts Pathways Alliance and the oil and gas industry, but all industries in Canada that want to share the great work they’re doing. We should all care about the further erosion of the right to free speech, whether it’s intended or not.

Derek Evans is executive chair of Pathways Alliance which represents Canada’s six largest oilsands producers.

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