Omar Wakil is “an excellent lawyer” who sources “would certainly rate” for his superb understanding of Competition Act matters and merger review.
Omar is the co-chair of the competition and foreign investment review group of the Canadian law firm Torys LLP. He is widely regarded as one of the country’s leading lawyers and is the author of the standard reference text on Canadian competition law, The Annotated Competition Act. He is on the executive committee of the national competition law section of the Canadian Bar Association, and is a non-governmental adviser to the International Competition Network.
What attracted you to a career in competition law?
My interest was initially academic – I have an LLM in competition law – but I also had the good fortune to start practising during the merger wave of the mid-1990s. My first file involved the proposed combination of two of Canada’s largest banks and after that, I was hooked.
How has the competition market changed since you started practising?
On the enforcement side, the Canadian Competition Bureau has adopted a more sceptical and analytical approach to its assessment of cases. When I started practising there was more deference and fewer document production orders. The volume of material assessed by the Bureau today was unheard of in the 1990s. Partially in response to that, the number of competition lawyers has increased exponentially. It is sometimes said half-jokingly that a dozen lawyers attended the first Canadian Bar Association competition law conference. Now we attract hundreds.
How are changing thresholds for merger review affecting the competition market?
Threshold increases have led the Bureau to think that more mergers are “slipping through the net”. The Canadian authority has jurisdiction to review all mergers, but historically dealt with smaller mergers on a reactive, complaint-driven basis. That’s changing, and the Bureau is now proactively and regularly assessing small non-notifiable mergers.
What is the significance of the Vancouver Airport Authority case for abuse of dominance matters in Canada?
I think the case is evolutionary not revolutionary. It builds on the recent Toronto Real Estate Board decision. It helpfully clarifies important elements of the abuse provision, such as the extent to which having a legitimate business justification for engaging in exclusionary conduct will insulate such conduct from remedial action. There is relatively little abuse jurisprudence in Canada, so virtually every case helps to clarify the law.
There are concerns that global tensions may impact on the international M&A market. How are these uncertainties affecting your work in competition?
We haven’t seen an impact on our competition practice, but we also handle foreign investment reviews and the effects there appear to be more significant. In particular, we’ve seen a tail-off in interest from Chinese investors in Canadian assets due to political and national security concerns. Deals are still getting done, but the volume is not what it was five years ago.
Where, in your opinion, does the future of the practice area lie?
In Canada, the growth is in competition litigation. Private actions were possible but unusual when I started and that’s changed dramatically. The legislation has been amended to allow for more private access and class actions have made litigation more prevalent.
How does Torys distinguish itself from the competition?
Our collaborative approach to practising law and depth of knowledge about our clients. We view all clients as firm clients and staff files according to who has the best expertise. Over 60 per cent of our clients have been clients for at least 10 years, so we tend to be well acquainted with their businesses and industries.
What is the best piece of career advice you have received?
That it’s important to improve and reinvent yourself throughout your career; that you shouldn’t be doing the same thing you were doing five years ago.