Counterfactual: Recent Episodes
Canadian Bar Association
Counterfactual is a podcast presented by the Canadian Bar Association’s Competition Law and Foreign Investment Review Section. The Counterfactual podcast strives to inform and entertain about topics of interest that lie at the core, intersection or even periphery of competition law and policy.
Host Julia Potter speaks with conference co-chairs Josh Chad and Laura O’Laughlin about highlights from the recent CBA Competition Law Section Spring Conference in Montreal. They discuss key themes across panels, including the growing intersection between competition law and national economic strategy, evolving merger review practices, and the anticipated expansion of private access to the Competition Tribunal. The conversation also explores the role of political will in major projects, practical insights from the keynote on foreign investment review, and competition across the AI stack.
In this episode of the Counterfactual Podcast, we hear from Beth Riley of McMillan LLP and Sultana Bennett of RBC for the second installment of our competition law compliance series. In this episode, we focus on risks: how to identify and assess the quantum of risk and how to mitigate risk while achieving business objectives. Our guests also review some hypothetical risk situations to provide additional practical advice.
The first installment of the Competition Law Compliance Series can be found at: https://counterfactual.simplecast.com/episodes/compliance-compass-guiding-your-business-through-canadas-competition-laws.
In this episode of the Counterfactual Podcast, Valeska Rebello and Kevin Hong sit down with Professor Anthony Rosborough, Assistant Professor of Law and Computer Science at Dalhousie University, to discuss the “Right to Repair”. They discuss the recent amendments to the Competition Act, compare Canada’s approach to other jurisdictions, address practical enforcement challenges, and examine the broader social and economic impacts on repair restrictions. This episode is a collaboration with the Young Lawyer's Committee of the CBA's Competition Law and Foreign Investment Review section.
In this episode, host Julia Potter continues the Better Know the Bureau series with an in‑depth conversation with Jonathan Hood, Senior Counsel at the Department of Justice for Competition Bureau Legal Services (CBLS). Jonathan shares his winding path from private practice to competition enforcement, to leading major litigation files in Canadian competition law.
In June 2024, the Competition Act was amended to require businesses to have testing or substantiation to support certain environmental claims, and in June 2025, the Competition Tribunal became empowered to grant leave to private parties to bring deceptive marketing cases, including in relation to environmental claims, if the Tribunal is satisfied that it would be in the “public interest.” In November 2025 the Government proposed further amendments to the environmental claims provisions of the Competition Act that would walk back some of the earlier amendments not long after they took effect. Julien Beaulieu, who was our guest in previous episodes about environmental claims that aired in April 2023 and September 2024, returns to share his insights on this important development.
In this episode of the Counterfactual Podcast, we travel to Ottawa for our annual live episode! In this political special, we are joined by Patrick Weiler, Liberal MP for West Vancouver – Sunshine Coast – Sea to Sky Country. With MP Weiler, we discuss the Federal budget, the differences between legal advocacy and law making, and learn the behind the scenes scoop on the greenwashing amendments in Bill C-59.
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.
In this episode of the Counterfactual podcast, we hear from Matt Chaisson, a Senior Policy Advisor, about his career and responsibilities at the Competition Bureau, particularly relating to the process and experiences around the adoption of recent amendments to the Competition Act. This is the second 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 and the work that they do.
Join us for a spirited discussion with three participants in the Competition Bureau’s 5th Annual Competition Summit entitled “Market Dynamics in the AI Era”. We review the highlights of the AI Summit from the perspectives of a senator, journalist and competition law practitioner. What are the Competition Bureau, domestic regulatory agencies and foreign competition enforcers thinking about the opportunities and challenges of artificial intelligence? Is there a plan? What’s next?
One of the many consequential recent amendments to the Competition Act, the so-called “structural presumption” for the identification of anticompetitive mergers has been the subject of robust debate. Join us for this episode as we speak with U.S. practitioner and former FTC attorney Jamie France for a rundown of the approach taken to the structural presumption in U.S. merger law – how is it applied in ordinary course merger reviews and how can it impact the advocacy of parties in merger litigation? – and a discussion of the potential impact of the presumption on Canadian law and practice.
In this episode of the Counterfactual podcast, we hear from Anu Lalith-Kumar, a Competition Law Officer in the Mergers Directorate and a part of the Mergers Intelligence and Notification Unit (MINU) about her background and role within the Competition Bureau. This is the first 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.
On June 20, 2024, the Competition Act was amended to require businesses to have testing or substantiation to support certain environmental claims. The Competition Bureau is currently engaged in a public consultation process to assist it in providing guidance on the interpretation of the new provisions. Soon, the Competition Tribunal will be able to grant leave to private parties to bring deceptive marketing cases, including in relation to environmental claims, if the Tribunal is satisfied that it would be in the “public interest.” In our fifteenth episode of the Counterfactual podcast, Julien Beaulieu, who was our guest in a previous episode about environmental claims that aired in April 2023, returns to share his insights on these important developments.
In the fourteenth episode of the Counterfactual podcast, we host a follow-on conversation from the recent CBA Competition Law Spring Conference, Old Port – New Tech: Exploring the Future. The conference co-chairs provide the key highlights from the panel discussions (Private Access – A New Frontier in Canadian; A fireside chat with Canada’s AI leaders; Abuse of Dominance v. Unfair Competition – What’s the Difference?; and Merger Review - Does competition law and Canada’s foreign investment review enable or hinder innovation?), the luncheon keynote Fireside Chat with Members of the Competition Tribunal/Federal Court of Canada, and ancillary events.
In March 2024, the Canadian government issued new guidelines concerning foreign investment review of investments into Canadian interactive digital media companies. In this episode, we dig into the reasons for the government’s concerns with Mariana Olaizola Rosenblat, the author of the recent report “Gaming the System, How Extremists Exploit Gaming Sites and What Can be Done to Counter Them”: What is interactive digital media anyway? How is it susceptible to foreign influence?And, what can companies – and investors – do to address these risks?
In this episode of the Counterfactual podcast, we host a follow-on conversation from the recent CBA Mergers Committee Brownbag session on sector-specific merger reviews (for the transportation, financial services, and telecom industries) that take place in parallel to the Competition Act merger review process. The panelists (from government, private practice, and government relations) provide the key messages from the brownbag session and dive deeper into the key topics. The panelists explore how parallel sector-specific reviews present unique substantive and procedural challenges both for merging parties and government agencies, offering advice to merging parties on their counsel to best prepare for sector-specific reviews.
What makes the Adam F. Fanaki Competition Law Moot so special? Host Charles Tingley speaks with moot organizers Katherine Rydel and Majid Charania to learn more about Canada’s premier competition law event for aspiring jurists. Find out what makes the Fanaki Moot tick and why law students, judges, enforcement officials and private practitioners are so keen to be a part of this treasured fixture on the Canadian competition law calendar.
Join us for an exciting dive into the world of regulatory eDiscovery. In this episode of the Counterfactual podcast, we unpack key questions, including where to look for documents, how best to collect them, and how to choose the right technology for your review. Nyah King and Eric Robinson of KLDiscovery, two experts in the field, share their insights on a variety of facets of regulatory document productions. Nyah and Eric also fill us in on new technological advancements that may soon further shake up the eDiscovery landscape.
This episode focuses on current hot topics relating to Canada’s grocery sector and intersections with competition law, with a focus on rising food prices. Dr. Charlebois provides insights into food price forecasting and its challenges, food inflation trends, the affordability of groceries and whether Canada’s large grocery chains have engaged in profiteering. He also shares his views on how competition law should - and should not - be used to encourage food affordability and spur competition in Canada’s grocery sector.
Join us for a special double-episode to kick-off the second season of the Counterfactual Podcast! We go behind the scenes with Canadian Competition Tribunal Chair, Justice Andrew D. Little, and his recent law clerk, Umang Khandelwal. The discussion covers the waterfront from Competition Tribunal practice and priorities to the future of competition law advocacy and points in between. This episode and will be of special interest to those considering a judicial clerkship, serving on the bench, appearing before the Tribunal or pursuing a career path in competition law generally.
In the fourth quarter of 2022, Canada’s federal government proposed significant amendments to the Investment Canada Act’s national security review powers, including mandatory pre-closing notification for some control and non-control level acquisitions, implemented a new critical minerals policy, ordered three Chinese companies to divest critical minerals investments and, departing from past practice, announced that it will publicly name parties subject to national security reviews in certain circumstances, all during a time of heightened tensions with China. In our seventh episode of the podcast, Phil Harwood, Partner at Longview Communications and Public Affairs, joins us to share his perspectives on these important developments.
In our sixth episode of the podcast, Julien Beaulieu, Lecturer in Law at the University of Sherbrooke, drops in to discuss environmental claims, greenwashing, green hushing, net zero pledges, and much more. Julien shares his insights into the legal regimes that apply to greenwashing, regulatory and compliance challenges regarding environmental claims, treatment of environmental claims in other jurisdictions, and other important topics in this complex and evolving area of competition law.
You can access the report that Julien authored with the Quebec Environmental Law Center (CQDE) on climate washing and greenwashing in Québec and Canada here.
In our fifth episode of the podcast, Majid Charania, Director of Compliance with the Competition Bureau of Canada, drops in to discuss the Bureau's revamped compliance program guidance with Counterfactual host, Julia Potter. Majid shares useful insights on the impetus for the updated guidance, the key changes from the 2015 edition, the value of compliance programs for companies of all sizes, and the essential elements of a credible and effective program. The revamped guidance is available online through the Bureau’s new Compliance Portal. The feedback link is open until June 9, 2023, and the Bureau encourages you to participate!
In our fourth episode of the podcast, Professor Joshua Gans of the University of Toronto’s Rotman School of Management drops in to discuss the economics of artificial intelligence with Counterfactual host Charles Tingley. Professor Gans shares his expert insights to clarify the nature, power and limitations of AI when it comes to business applications and the potential to influence competitive conduct in the marketplace. In addition to canvassing the potential competition law implications of AI, discussion extends to broader societal implications of machine learning and even to the must-have gadget recommended by Professor Gans in case listeners are looking for that special holiday gift.
In our third episode, we sit down with the former national security and intelligence advisor to the Prime Minister, Vincent Rigby, and Associate Professor and security expert at the University of Ottawa’s Graduate School of Public and International Affairs, Thomas Juneau, to discuss their recent report on the threats to Canada and Canadians’ security, the sufficiency of Canada’s current strategy to protect its national interests, and how the Investment Canada Act fits into the broader national security toolbox.
In our second episode, two-time Competition Bureau Chief Economist, Dr. Lilla Csorgo, speaks with Counterfactual host Charles Tingley about her experiences and reflections in practice and within different enforcement agencies as a globetrotting economist…and also her creative side and recommendations for a top Kiwi travel experience.
In our inaugural episode, Counterfactual host Charles Tingley invites former Competition Commissioners, Lawson Hunter and George Addy, to discuss the current competition policy landscape in Canada and potential amendments to Canada’s Competition Act…as well as their favourite places to visit and their ‘alternate universe’ career ambitions.
Digital Media Committee Chair, Charles Tingley, announces the launch of the Counterfactual Podcast and provides a sneak peak at what listeners can expect to hear in future episodes of the podcast.
Brought to you by the CBA Competition Law and Foreign Investment Review Section.