I INTRODUCTION

This chapter provides an overview of the merger control regime in Canada, highlights noteworthy developments in 2015 and offers case and enforcement insights and strategies for the upcoming year.

From an enforcement perspective, on 1 April 2015, the Competition Bureau (The Bureau) saw its eight branches combined into four: the Mergers and Monopolistic Practices Branch, the Cartels and Deceptive Marketing Practices Branch, the Competition Promotion Branch, and the Corporate Services Branch.

Over the past year, five key themes emerged in the Bureau’s review of mergers. First, the Bureau continued to show a willingness to accept behavioural remedies to address competition concerns including as part of mediated resolution proceedings. Second, the Bureau continued to closely coordinate its enforcement efforts in cross-border transactions with its international antitrust counterparts, particularly those in the United States. Third, as a result of a 2015 Supreme Court of Canada (Supreme Court) decision on merger efficiencies (described below), the Bureau is increasingly using econometrics to quantify anticompetitive effects and shifting considerations of efficiencies to an earlier stage of merger review. Fourth, the Bureau has indicated a particular interest in innovation and the digital economy, noting the increasing importance of digital formats in its review of a number of media mergers. Finally, the Bureau has continued to pay close attention to the pharmaceutical industry, imposing remedies in two mergers.

II YEAR IN REVIEW

In fiscal year 2014/2015, the Bureau reviewed a total of 244 mergers (compared to 233 merger reviews in the previous fiscal year), the highest total number since fiscal year 2007/2008.2 A no-action letter (NAL) was issued in 29.4 per cent of all non-complex reviews and an advance ruling certificate (ARC) was issued in 70.6 per cent of all non-complex reviews, both of which are brief notices to the parties that their deal may proceed as planned. In the case of a NAL, the Commissioner of Competition (Commissioner)3 retains the right to challenge the merger within one year of closing. In the case of an ARC, the Commissioner may challenge the merger if it is not substantially completed with one year after the ARC is issued or new information arises that differs substantively from the information provided in the ARC.

An increasing number of reviews are complex (approximately 33 per cent of transactions in 2015 were classified as complex, compared to approximately 20 per cent in previous years). The average review time for non-complex transactions was 10 days, which is consistent with previous years. However, the review time for complex transactions has increased (approximately 44 days in 2015, compared to approximately 33 days in 2014). In the first three-quarters of fiscal year 2015/2016, average filings decreased slightly by two filings per month.

The major merger and enforcement themes from 2015 are discussed in further detail below.

i Use of behavioural remedies

Historically, the Bureau has expressed a preference for structural over behavioural remedies. In 2015, however, the Bureau relied on behavioural remedies as a means of resolving market concerns in important cases, particularly where structural remedies were either insufficient or inefficient.

For example, the Bureau agreed to a behavioural remedy in a May 2016 consent agreement relating to the proposed acquisition of wireless retailer Glentel Inc (Glentel) by BCE Inc (BCE) and Rogers Communications Inc (Rogers) (Canada’s two largest wireless carriers). The consent agreement requires administrative firewalls to be put in place between BCE, Rogers and Glentel to ensure that competition for the retail sale of wireless telecommunications products is preserved. Further, BCE and Rogers are required to maintain exclusive control over their respective pricing and promotion in Glentel. The confidentiality protocol in the consent agreement also prevents BCE and Rogers from obtaining information from Glentel’s management relating to any subscriber or forward-looking pricing, promotions or marketing strategies of other carriers. Finally, it also limits the historic sales and revenue information that Glentel management can share with BCE and Rogers. A monitor has been appointed to ensure compliance with the consent agreement.

Additionally, in the first mediation undertaken in a Competition Tribunal (Tribunal) proceeding, the Commissioner and Parkland Fuel Corporation (Parkland) reached a consent agreement that resolved the Commissioner’s allegations that the acquisition by Parkland of the assets of Pioneer Energy LP (Pioneer) would result in a substantial lessening or prevention of competition in 14 local markets in Ontario and Manitoba. (The Commissioner’s application was novel in that it alleged that the merger would increase the ability and incentive of both the merged entity to unilaterally increase prices and of all competitors in the markets to more effectively coordinate pricing, to the detriment of competition.)4

The April 2016 consent agreement resolved competition concerns through both structural and behavioural remedies. In certain markets, Parkland agreed to divest a station or gasoline supply agreement in order to remove the overlap resulting from its merger with Pioneer. In two additional markets, Parkland agreed not to increase any profit margin that it earns on the wholesale supply price of gasoline to two of its dealers. These recent examples illustrate the Bureau’s willingness to resolve competitive concerns through creative behavioural remedies, potentially in combination with more traditional structural remedies.

ii Coordination with international antitrust authorities in resolving merger concerns

Several key mergers involved international cooperation in the past year. In May 2015, the Bureau reached a consent agreement relating to the acquisition by Holcim Ltd (Holcim) of Lafarge SA (Lafarge), two of the world’s largest manufacturers of cement and related products with operations in Canada. The Bureau’s review focused on determining whether Holcim’s assets located outside of Canada were important to the effectiveness of Holcim’s Canadian business. The Bureau noted that Holcim’s cement operations in Alberta relied extensively on cement supply from Holcim assets in the United States. Accordingly, the consent agreement required the sale of all of Holcim’s Canadian operations and all associated assets, together with Holcim’s US-based cement plant in Three Forks, Montana, to address the substantial lessening or prevention of competition that would have resulted from the merger.

In February 2015, the Bureau issued a no-action letter with respect to the proposed three-part cross-conditional transaction between GlaxoSmithKline plc (GSK) and Novartis AG (Novartis) involving their consumer healthcare, vaccines and oncology businesses. The Bureau concluded that the consent agreement between the United States Federal Trade Commission (FTC) and Novartis requiring the sale of certain oncology assets to Array BioPharma were also sufficient to resolve competition concerns in Canada. However, the Bureau noted that a global remedy imposed in Europe (i.e., GSK committing to sell its global Meningitis Quadrivalent vaccine) would not have been sufficient in the Bureau’s view if the same competitive concerns were present in Canada without the ability to ensure that the buyer had the intention and ability to compete effectively in Canada.

In addition, the Bureau coordinated closely with the US Department of Justice (DoJ) and Mexico’s Federal Economic Competition Commissioner (COFECE) during the review of the acquisition by Continental AG (Continental) of Veyance Technologies, Inc (Veyance). Continental and Veyance primarily supplied Canada from manufacturing and final assembly plants located in the US and Mexico. Although the Bureau had concerns that that the overlap in air springs for commercial vehicles would have resulted in a substantial lessening of competition in Canada, it was satisfied that the divestitures required in the settlement agreement with the DoJ would also resolve Canada-specific concerns. Overall, these mergers are practical examples of the Bureau’s ongoing emphasis on international coordination as the circumstances warrant to resolve Canadian market issues and concerns.

iii Increasing quantification of anticompetitive effects and consideration of efficiencies

On 22 January 2015, the Supreme Court provided guidance on the test for prevention of competition and the efficiencies defence in Commissioner of Competition v. Tervita Corporation.5 The Supreme Court determined that in order for the assessment of efficiencies to be as clear and objective as possible, the Commissioner must, as a first step, quantify all quantifiable effects of a merger and then weigh them against quantified efficiencies to be able to determine whether the merger efficiencies will outweigh the anticompetitive effects to meet the defence.6

Post-Tervita, the Commissioner has signalled that the Bureau will prioritise the use of advanced econometric analyses to quantify anticompetitive effects and efficiencies. For example, in September 2015, the Bureau issued a NAL to Groupe Renaud-Bray Inc (Renaud-Bray) and Groupe Archambault Inc (Archambault) in connection with its acquisition of the retail assets of a division of Archambault as a result of the Bureau’s determination that the wholesale price elasticity of publishing trade books was relatively low, making it unlikely that the number of titles would be reduced significantly as a result of the merger. Various other analyses were performed using transactional level data sourced from each of the parties’ 44 French-language book stores as well as the exact location of the parties’ and their competitors’ bookstores, in order to assess the impact of competition on Archambault’s retail prices for trade books. Further, the Bureau also noted that it took into account the efficiencies submissions by Renaud-Bray, suggesting that the proposed transaction is likely to bring about cognisable efficiencies.

In June 2015, the Bureau explained its use of econometric analysis in its review of the proposed merger between HJ Heinz Company (Heinz) and Kraft Foods Group (Kraft). In order to assess the degree of substitutability between the merger parties’ brands of barbecue sauce and pourable salad dressing, the Bureau used econometric techniques to estimate own-price and cross-price demand elasticities for both categories of products. The Bureau then relied on these elasticity estimates to simulate the effects of the proposed merger. This analysis demonstrated that the Heinz and Kraft brands of barbecue sauce and pourable salad dressing were highly differentiated products leading the Bureau to issue a NAL.

In addition, even though the Bureau concluded in March 2015 that Postmedia Network Inc’s acquisition of the English-language newspapers, specialty publications and digital properties of Quebecor Media Inc (QMI) would not result in a substantial lessening or prevention of competition, it nevertheless noted that Postmedia made persuasive submissions suggesting that the effects of any lessening or prevention of competition would be offset by meaningful cognisable efficiencies.

iv Innovation and the digital economy

The Commissioner has recently signalled that the Bureau is paying close attention to the digital marketplace, noting that although historically, the Bureau’s analysis of mergers has focused on price effects, it is increasingly considering the effects of mergers on product quality, convenience, choice and innovation. For instance, in the GSK/Novartis merger described above, the Bureau explicitly focused on whether the transaction was likely to increase prices in the relevant markets or decrease another dimension of competition such as innovation.

In October 2015, the Bureau concluded that the National Hockey League’s (NHL) C$5.2 billion 12-year broadcast and multimedia rights agreement with Rogers Communications Inc (Rogers), which gives Rogers exclusive rights to all national NHL games, did not result in a substantial lessening or prevention of competition with respect to advertising. In arriving at this conclusion, the Bureau took into account the evolving dynamics of the broadcasting landscape, characterised by a shift away from the traditional ‘linear’ model of watching television towards watching content via various new emerging service options such as web streaming, noting the corresponding shift in advertising practices.

Further, the Bureau has identified the digital economy, disruptive business models and the sharing economy as key priority areas going forward. In 2015, the Bureau approved two mergers in the newspaper and bookstore industries (Postmedia/QMI and Renaud/Archambault, discussed above). In both transactions, the Bureau acknowledged the declining market shares of traditional media sources and the increasing importance of online formats. However, given sufficient remaining effective competitors in the relevant industries, the Bureau did not make its decision based on the competitive constraints imposed by new digital competitors. Accordingly, it remains to be seen whether the Bureau would consider digital competition to be sufficient to avoid a remedy.

Most recently, in May 2016, the Bureau launched a market study into technology-led innovation in the Canadian financial services sector that will focus on how innovation is affecting the way consumers and businesses use financial products and services. The study will explore the competitive impact that technology is having on the industry, barriers to entry faced by companies and whether there is a need for regulatory reform to promote greater competition while maintaining consumer confidence in the sector.

v Close scrutiny of pharmaceutical industry

The Bureau has continued to pay close attention to mergers in the pharmaceutical industry. For example, only one part of the GSK/Novartis transaction described above was notifiable. However, the Bureau noted that ‘given the importance of pharmaceutical products to Canadians, changes in the pharmaceutical industry are of significant interest to the Bureau. Accordingly, the Bureau undertook a full review of the proposed transaction.’7

In August 2015, the Bureau reached a consent agreement with respect to the proposed transaction between Pfizer Inc (Pfizer) and Hospira, Inc (Hospira) pursuant to which Pfizer agreed to sell the Canadian assets relating to its marketed injectable cytarabine, injectable epirubicin and oral tablet methotrexate products and Hospira’s pipeline injectable voriconazole product. The Bureau determined that the parties’ products should generally be considered within the same relevant product market where they are identical at the molecular level (i.e., constitute the same chemical compound) and are supplied in the same format (e.g., injectable or tablet). The Bureau concluded that Pfizer’s acquisition of Hospira would likely have resulted in a substantial lessening or prevention of competition for the supply of these four pharmaceutical products in Canada.

In April 2016, the Bureau reached a consent agreement in connection with Teva Pharmaceutical Industries Ltd’s proposed acquisition of Allergan plc’s generic pharmaceuticals business, finding that the transaction would likely have resulted in a substantial lessening or prevention of competition for the sale of two generic pharmaceutical products in Canada. Consistent with recent pharmaceutical reviews, the Bureau found that the parties’ products should generally be considered within the same relevant product market where they contain the same molecule or active ingredient and are supplied in the same format. However, the Bureau noted that in some instances, it may be appropriate to differentiate products based on other factors such as differences in dosage strength.

Overall, the trends identified above are likely to continue to shape the competition law enforcement landscape in Canada in 2016.

III THE MERGER CONTROL REGIME

The Bureau, headed by the Commissioner, is an independent government agency responsible for the enforcement of the Competition Act. All mergers, whether notifiable or not, are reviewable by the Commissioner to determine their competitive impact, but only those that exceed the thresholds require notification to the Commissioner. These thresholds include a ‘size-of-parties’ test and a ‘size-of-transaction’ test, both of which must be satisfied to trigger the pre-merger notification (PMN) requirement, as well as a third test that applies in respect of a proposed acquisition of any of the assets in Canada of an operating business or in respect of an acquisition of voting shares.

If exceeded, the parties to the transaction must comply with the PMN framework in the Competition Act, which requires parties to notify the Commissioner prior to completing the merger, to provide specified information and to wait a specified period of time before completing the transaction. In addition, there are non-binding policies that the Bureau generally follows, such as merger review timelines, and certain practices that parties are encouraged to follow, such as cooperation and transparency.

i Thresholds

Section 109 of the Competition Act sets out the ‘size-of-parties’ test, which requires that the aggregate Canadian assets of the parties to the transaction (together with their affiliates) exceed C$400 million or that the aggregate Canadian turnover of the parties exceed C$400 million. Section 110 of the Competition Act sets out the ‘size-of-transaction’ test, which changes yearly and which, in 2016, requires the Canadian assets or revenues, or both, of the target (together with its affiliates) to exceed C$87 million. Section 110 of the Competition Act also sets out the third component of the test that triggers the PMN requirement, and it describes the acquisition event, generally, as the acquisition of assets, or the acquisition of 20 per cent of the voting shares of a publicly traded company or 35 per cent of the voting shares of a privately held company (or more than 50 per cent if the acquiror already owns between 20 and 50 per cent).

Irrespective of whether a transaction triggers the requirement to notify or if the Commissioner has issued a NAL, the Commissioner retains the statutory authority to challenge a merger. In the case of a non-notifiable transaction or where a NAL has been issued under Section 114 of the Competition Act, Section 97 of the Competition Act provides that the Commissioner may bring a challenge within one year after the transaction has been substantially completed if it raises competition concerns. In the case of an ARC, Section 103 of the Competition Act provides that the Commissioner may not challenge a merger based on the same facts if the merger is substantially completed with one year after the ARC is issued.

ii Exemptions

Section 111 provides for several narrow exemptions from the PMN requirement, the applicability of which must be assessed on a case-by-case basis. Parties can be exempted from the PMN requirement if the Commissioner issues an ARC pursuant to Section 102 of the Competition Act or where, for example, the parties to the transaction are all affiliates. A number of other exemptions to the requirement to notify are also provided for in the CA, including certain types of joint ventures and acquisitions of:

  • a real property or goods in the ordinary course of business;
  • b shares or interests for the purpose of underwriting;
  • c receivables (or an acquisition forming a part of any debt work-out); and
  • d Canadian resource property.

In 2015, the Bureau published guidance on the circumstances in which a proposed acquisition of loans, mortgages or receivables will be notifiable.8 The new guidance clarifies that for the purpose of the paragraph 111(a) exemption, the word ‘goods’ includes intangible goods where the acquiror, as a result of the transaction, will hold all or substantially all of the assets of a business or of an operating segment of a business. On the other hand, an acquisition will not be notifiable where it is an acquisition of real property or goods in the ordinary course of business (e.g., original equipment manufacturers switching commercial finance providers for dealer programmes or commercial finance providers buying and selling accounts receivable and loan portfolios more generally).

iii PMN forms and ARC applications

Subsection 114(1) of the Competition Act provides that parties to a notifiable transaction are required to notify the Commissioner and supply the prescribed information set out in Section 16 of the Notifiable Transactions Regulations and reflected in the Bureau’s template form (PMN form). For a PMN form to be complete, each party is required to certify under oath or solemn affirmation that the information it has supplied is correct and complete in all material respects pursuant to Section 118 of the Competition Act, and explain if information cannot be supplied.

In straightforward transactions, the merger parties can request an exemption from filing the PMN form by applying for an ARC, which is a letter describing the transaction and the parties and explaining why there are no substantive competition law concerns. Most ARC applications are processed within the Bureau’s two-week ‘non-complex’ service standard period (described below). Parties can close with relative comfort by receiving either an ARC (typically for non-complex matters) or a NAL (typically for complex matters).

iv Filing fee and non-compliance

Section 65(2) of the Competition Act imposes a C$50,000 fee for an ARC application and a PMN (the fee is the same whether one or both are filed). Failure to comply with the PMN requirement ‘without good and sufficient cause’ is a criminal offence that carries a C$50,000 fine. Parties would also be in contravention of Section 123 of the Competition Act, which prohibits completing a merger before the expiry of the applicable statutory waiting period. The Commissioner could respond to such breach by seeking an order to prohibit the implementation of a merger or requiring the dissolution of a completed merger, as well as imposing a monetary fine of up to C$10,000 for each day that the parties are in breach of the waiting period.

v Non-notifiable mergers

A merger can be reviewed by the Bureau under Part VIII of the Competition Act even if it is not notifiable. The Bureau monitors non-notifiable transactions to ensure compliance with substantive competition laws. Non-notifiable mergers that are reviewed are detected mainly through complaints from market stakeholders (e.g., customers, suppliers and competitors) or market monitoring (e.g., media sources and mergers and acquisitions databases). Under Section 9 of the Competition Act, the Bureau can be compelled to conduct an inquiry into a merger if six Canadian residents initiate a complaint, although the Commissioner retains the discretion to decide whether to commence a challenge before the Tribunal. Additionally, parties themselves may voluntarily notify the Bureau by way of an ARC request to have written confirmation that the Commissioner will not take action with respect to an upcoming merger.

vi Statutory waiting period

Under Part IX of the Competition Act, once parties to a proposed transaction have submitted completed PMN filings, an initial statutory 30-day waiting period commences during which time the parties are prohibited from closing. The Commissioner has discretion to effectively terminate the waiting period early if he does not intend to make an application to the Tribunal by issuing an ARC or NAL.

Conversely, the waiting period can be extended where the Bureau requires more information to review the proposed transaction. In such circumstances, the Bureau issues a supplementary information request (SIR) under Section 114(2) of the Competition Act. The waiting period is suspended upon the issuance of an SIR, and a new 30-day waiting period commences from the date the SIR is certified complete. The Commissioner can seek to prevent a transaction from closing by applying to the Tribunal for an order to that effect, if he chooses to challenge it.

vii Cooperation and collaboration

Regular and open dialogue and cooperation with the Bureau can help expedite the merger review process. Voluntarily providing additional information that is requested, supplying competitive analyses and working proactively with the Bureau to resolve any potential concerns will generally provide for a more efficient review. For example, in transactions involving purchasers that are private equity funds, counsel can expedite the process by confirming whether the fund holds an interest of 10 per cent or more in a competing business. In complex matters, parties may agree to an additional 30-day waiting period upfront to give the Bureau case team additional time, particularly in a document-heavy file. This will assist the Bureau case team and potentially avoid a SIR issuance.

viii Merger review policies

Once a filing is received, the Bureau designates the case as ‘non-complex’ or ‘complex’. In non-complex cases, the Bureau aims to complete its review within 14 days of receiving the filing and provide an ARC or NAL that effectively terminates or waives the waiting period. For complex cases, the period is 45 days. However, where a SIR is issued, the service standard is an additional 30 days from the date on which the Commissioner has received a complete response to the SIR from all recipients. This results in overall review periods in the range of four months or longer where SIRs have been issued.

While these are not statutory timelines, the Bureau has generally met its service standard in over 90 per cent of concluded matters. Unless the Commissioner issues a SIR, parties are legally permitted to close their transaction without comfort and at their own risk once the initial 30-day waiting period has expired. In such circumstances, parties would continue to be subject to the risk that their transaction could be challenged by the Commissioner, who maintains the right to seek a court injunction to prevent closing and, within one year following closing, to challenge it under Section 97.

ix SIRs

SIRs are only issued in a minority of matters, as most matters are dealt with through informal information requests, questions and dialogue during the review process. In fiscal 2014/2015, the Bureau issued 12 SIRS, representing 4.9 per cent of all matters reviewed. In three-quarters of fiscal 2015/2016, 18 SIRs have been issued, representing 8.1 per cent of all matters reviewed. Post-issuance discussions with the Bureau may narrow the scope of the requested information and, for electronic searches, identify and limit the custodians and search terms to what is required for the SIR’s satisfaction.

x Merger registry

In 2012, the Bureau introduced a publicly available online merger registry that lists the names of the parties and other information relating to concluded transactions, despite concerns raised by the Canadian Bar Association about publicly identifying merger parties in non-public cases. In exceptional cases, where the publication may result in material harm, parties may request that the information be kept private, and the Bureau may oblige on a case-by-case basis.

xi Merger Enforcement Guidelines (MEGs)

The MEGs provide helpful guidance in determining what information should be provided to the Bureau to assist in its review of a merger. The objective of the MEGs is to set out current Bureau practice as well as its legal and economic thinking.

IV OTHER STRATEGIC CONSIDERATIONS

i The efficiencies defence

Where relevant, merging parties should anticipate being asked to provide detailed and progressively more specific information on efficiencies to enable the Bureau to conduct its analysis and, in certain cases, should consider making proactive efficiency submissions at the outset of the Bureau’s review. For instance, as noted above, in its review of Renaud/Archambault, the Bureau took into account the efficiencies submissions made by Renaud-Bray, suggesting that the proposed transaction is likely to bring about cognisable efficiencies. Otherwise, the Bureau has signalled a willingness to obtain information through such means as additional questions in SIRs or issuing Section 11 orders to merging parties after SIRs have been issued, something that it has not previously done.

ii Staggering international reviews

In recent years, there has been an increased emphasis placed by the Bureau on negotiating parallel consent agreements in the cross-border context. Recent examples include the Holcim/Lafarge, Teva/Allergan, Pfizer/Hospira and Iron Mountain Incorporated/Recall Holdings mergers. In fact, the Commissioner has noted that approximately one quarter of the Bureau’s complex merger reviews involve a significant level of cooperation with at least one international antitrust counterpart.9 As a result, to coordinate the negotiation of a Canadian resolution within international mergers where there are similar substantive considerations, parties may wish to sequence Canadian and foreign reviews to have the Canadian review benefit from the lead agency’s analysis. Such an approach, particularly involving US antitrust authorities, may help to ensure that remedies are aligned and resolution timing is coordinated.

iii Enforcement action where parties fail to notify

In May 2015, perhaps as a signal to other merging companies that meet the thresholds under the Competition Act but fail to notify, the Bureau took enforcement action against Parrish and Heimbecker, Limited (P&H), an agri-business company that failed to notify the Bureau of two proposed acquisitions. In light of P&H’s voluntary reporting once management learned of the failure to notify, the Bureau was of the view that P&H should adopt a compliance programme to ensure it complies with the Competition Act in the future. The compliance programme requires P&H to ensure that employees are familiar with the Competition Act, appoint two senior executives as compliance officers to be responsible for the development, implementation and maintenance of the programme, seek a legal opinion on all proposed transactions exceeding C$5 million in value to determine if they are subject to premerger notification and inform the Bureau of the progress being made on the implementation of the compliance programme. Accordingly, merger parties should be aware that the Bureau monitors and is prepared to take enforcement action where parties have failed to notify.

V OUTLOOK and CONCLUSIONS

i Continued willingness to litigate contested mergers

A trend that is likely to continue is a consistent number of litigated merger cases. From August 2009 to September 2012, six merger cases were initiated (based on number of notices of application filed with the Tribunal) and two proceeded to litigation. Under Commissioner Pecman, who was appointed in June 2013 for a five-year term, five merger cases have been initiated and two have proceeded to litigation. Most recently, and on the same day that the FTC filed an application in the US, the Commissioner filed an application with the Tribunal challenging Staples, Inc’s proposed acquisition of its main competitor, Office Depot Inc. The Bureau’s review found that if the acquisition were to proceed, Staples would account for over 80 per cent of sales of various office products to affected customers in Canada, including supplies such as pens, pencils, highlighters, staples, sticky notes and paper. (The Commissioner withdrew his application on 19 May 2016 in light of the decision by the parties to abandon the merger following the issuance of an injunction in the United States.)

Overall, the Bureau continues to demonstrate a willingness to litigate contested mergers. It remains to be seen whether the Bureau’s recent openness to mediation as a form of resolution will affect the number of contested mergers that proceed to trial.

ii Continued and increasing international cooperation

In 2015, the Bureau has continued its practice of signing cooperation instruments with a number of law enforcement agencies to promote international cooperation in the areas of competition policy and law.10 Most recently, the Bureau has signed memoranda of understanding (MOUs) with China’s State Administration for Industry and Commerce and the Ministry of Commerce of the People’s Republic of China. These MOUs will help to further develop communication with Chinese agencies that will facilitate technical and enforcement cooperation between the agencies.

iii Bureau’s Strategic Vision for 2016

In its 2015/2016 Annual Plan, the Bureau has identified safeguarding Canadians against anticompetitive conduct through active enforcement and increasing collaboration, openness and transparency as its key priorities for the upcoming year. Accordingly, a number of trends that have emerged in 2015 are likely to continue and evolve in the upcoming year.

Footnotes

1 Dany H Assaf is practice co-chair and Rebecca Moskowitz and Marina Chernenko are associates at Torys LLP.

2 Figures in this section are drawn from the Competition Bureau’s Merger Review Performance Report: Update on Key Performance Statistics (presented at the Canadian Bar Association Competition Section Annual Roundtable Meeting on 5 May 2016).

3 The current Commissioner of Competition is John Pecman.

4 In May 2015, following the filing of the application, the Tribunal issued the first contested injunction in a merger application, preventing Parkland from implementing the deal in six local markets in Ontario and Manitoba pending the outcome of litigation. The Tribunal found there was evidence to infer that, without the injunction, there would be harm to consumers and the general economy in six of the 14 markets at issue.

5 Tervita Corp. v. Canada (Commissioner of Competition) 2015 SCC 3.

6 Ibid at paragraph 147.

7 Competition Bureau Statement Regarding the Three-Part Inter-Conditional Transaction between GlaxoSmithKline plc and Novartis AG involving their Consumer Healthcare, Vaccines and Oncology Businesses (23 February 2015).

8 Pre-Merger Notification Interpretation Guideline No. 16: Definition of ‘Goods’ (Paragraph 111(a) of the Act).

9 Remarks by John Pecman, Commissioner of Competition, ‘Better Together – The Importance of Cooperation Amongst Competition Authorities’ (21 May 2015), North American Antitrust Authorities Conference (Mexico City).

10 The Bureau has negotiated cooperation instruments, which include MOUs with 12 jurisdictions, including Australia, New Zealand, Brazil, Chile, the European Union, India, Japan, the Republic of Korea, Mexico, Taiwan ROC, the United Kingdom and the United States.