Submission by the Commissioner of Competition to the Government of Ontario – Digital Health Interoperability

July 23, 2020

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  1. The importance of digital health care has never been more pronounced. The COVID‑19 pandemic has demonstrated the instrumental role that digital solutions can play in meeting Canadians' health care needs, and the need to integrate these solutions into our health care systems.
  2. Interoperability is the backbone for successful digital integration in the health care sector. The Digital First for Health strategy adopted by the Government of Ontario aims to facilitate more effective coordination within Ontario's health care system, by enabling the seamless exchange of data.
  3. The Competition Bureau (Bureau) welcomes the steps the Government of Ontario is taking to promote interoperability through proposed amendments to the Personal Health Information Protection Act (PHIPA) regulation 329/04. The Bureau supports the establishment of interoperability specifications, which can enable health care providers, innovators and Ontarians to harness the power of data.

About the Bureau

  1. The Bureau, as an independent law enforcement agency, seeks to ensure that Canadian businesses and consumers prosper in a competitive and innovative marketplace. Headed by the Commissioner of Competition, the Bureau is responsible for the administration and enforcement of the Competition Act, Consumer Packaging and Labelling Act (except as it relates to food), Textile Labelling Act and Precious Metals Marking Act.
  2. As part of its mandate, the Bureau promotes and advocates for the benefits of a competitive marketplace. Submissions to government bodies, such as the Government of Ontario, form a key part of the Bureau's advocacy strategy. Such submissions aim to assist decision‑makers in formulating and implementing rules that satisfy legitimate policy objectives, while respecting competition's central role in the Canadian economy.
  3. As part of its continued commitment to focus on areas that matter most to Canadians, the Bureau will work with decision‑makers in the health care sector to provide evidence‑based recommendations on ways to enhance choice and innovation for CanadiansFootnote 1. Through this submission, the Bureau aims to provide guidance to the Government of Ontario, through a competition lens, on how the proposed amendments to the PIHPA regulation related to interoperability can benefit competition, and how to tailor the regulation appropriately to maximize the benefits of competition in the health care sector.

Interoperability can improve the quality of patient care, empower consumers and reduce health care costs

  1. The health sector produces nearly 30% of the world's dataFootnote 2. Yet, while a large number of industries have effectively harnessed the power of data to deliver better, cheaper and more innovative products and service to consumers, studies suggest that most health systems remain 'data rich but information poor'Footnote 3.
  2. The effective and efficient use of data is critical to the future of health care in Ontario. Fragmented datasets that cannot "speak to each other" can create frictions that reduce the ability to effectively leverage the benefits of data, and can act as a major barrier to digital transformationFootnote 4.
  3. Research has shown that the establishment of interoperability specifications in health care can facilitate the effective exchange of information, which can:
    • Improve patient care: Establishing data standards in health care can improve the quality of care patients receive by allowing for better coordination and integration between service providers, and access to accurate and timely patient informationFootnote 5.
    • Empower patients: Enabling access to health information can empower patients to take a more active role in their health, and make more informed choices. It can also ease switching between service providers, and provide patients with better access to the services they need.
    • Reduce health care costs: According to the Financial Accountability Office of Ontario, the average annual growth in Ontario's health spending doubled over the past two years. As the cost of health services continue to rise, it will be more important than ever to find new and innovative ways to keep Ontarians healthy, while at the same time minimizing the increasing burden on taxpayers.

      Leveraging data and digital technologies can help reduce waste by improving efficiency and limiting duplicationFootnote 6. For example, it is estimated that digital technology in the National Health Service (NHS) of the United Kingdom has the potential to deliver efficiencies amounting to GBP £13 billion a yearFootnote 7.

Interoperability specifications can spur competition and innovation in health care by reducing barriers to entry and expansion

  1. Facilitating frictionless access to data, with appropriate privacy protections in place, can enable health care providers to develop new and innovative ways to serve their patients and reduce barriers to entry and expansion for innovative businesses.
  2. For businesses, data can be a precondition to entering and competing in the marketplaceFootnote 8. A business' ability to compete increasingly depends on timely access to data, and the ability to use that data to develop new, innovative applications, products, and servicesFootnote 9.
  3. Shared standards, such as interoperability specifications, help to ensure effective oversight and a level playing field that minimizes the risk of abuse. Establishing interoperability specifications in the health care sector can spur competition by lowering costs, increasing efficiency and consumer choice, reducing barriers to entry and expansion, and enabling new and innovative business modelsFootnote 10.

Standards should minimize negative effects on competition

  1. As mentioned above, standards, such as interoperability specifications, could bring procompetitive benefits in the health care sector. However, standards can also pose competition concerns, such as the reduction of price and/or non‑price competition, the foreclosure of innovative technologies and the restriction of firms' ability to compete by denying access to the standard or providing access on discriminatory termsFootnote 11.
  2. Standards can create barriers to entry when the cost of compliance is disproportionately high, especially for small and medium‑sized businesses that may lack resources or when the cost to switch to another standard and/or alternative technology is prohibitiveFootnote 12. Standards can also create barriers to entry when intellectual property rights, such as patent rights, are incorporated into a standard and become essential to compliance with the standardFootnote 13.
  3. As described in the Bureau's submission in support of the Ontario Data Strategy, to avoid unnecessarily increasing compliance burden, standards should be proportionate to the risks they aim to mitigate and should be cast narrowlyFootnote 14. Appropriate governance structures should also be put in place to mitigate the negative effects of standards on competitionFootnote 15.

Unlocking the full value of digital health care in Ontario

  1. The future of health care is digital. The adoption and integration of digital solutions in health care systems will rely on a strong foundation of standards to enable interoperability and innovation. The Bureau supports the establishment of interoperability specifications, which can spur competition, enable new and innovative business models, and help deliver better and more affordable health care products and services to Ontarians. To maximize the benefits of competition in the health care sector, standards should avoid creating barriers that can reduce choice and innovation.