Over the course of 2018 and the first half of 2019, the Competition Bureau (the Bureau), led by the Commissioner of Competition (the Commissioner), continued to pursue a rigorous enforcement strategy in all merger reviews: aggressively monitoring the media for information in connection with non-notifiable transactions and issuing a large number of formal and informal information requests during its reviews (including supplementary information requests (SIRs), which are analogous to US second requests). At the same time, while a few major transactions received close scrutiny by the Bureau, ultimately most of these transactions were cleared with no remedies required.
ii YEAR IN REVIEW
In 2018–2019, the Bureau opened 197 merger reviews – a 14 per cent drop in total reviews from 2017–2018, and the lowest number since 2004–2005. From April 2018 to September 2018, 114 merger reviews were concluded (including those carried over from the 2017–2018 year), 111 of which had no enforcement action taken. In the first term of 2018–2019, 49 merger reviews concluded with the issuance of an Advance Ruling Certificate (ARC) and 57 concluded with the issuance of a No Action Letter (NAL).
Although the Bureau initially anticipated issuing SIRs only in the case of 'those very few mergers that raise significant potential issues',2 in 2018–2019, 10 SIRs were issued, the same number as in 2017–2018. A SIR is not the Bureau's only method for obtaining large volumes of additional data and information in respect of a transaction. On the contrary, it is routine for the Bureau to issue voluntary information requests to the parties where no SIR is forthcoming. The Bureau reported that it clears 100 per cent of its non-complex reviews and 91 per cent of its complex reviews within its target time frame according to the complexity of the review (called a 'service standard'). The Bureau has reported that the average response time in 2018–2019 for SIRs was 78 days, and the average time to resolve matters after the date of SIR compliance was 131 days (but, in our experience, the time period to resolve after SIR compliance is typically much shorter – often one to three months after compliance – meaning the average is skewed upwards by a limited number of complex files). The Bureau's statistics also do not account for transactions where the parties and the Commissioner have entered into a timing agreement.
The issuance of a SIR does not signal that the Bureau will require a remedy. In 2018–2019, of the 10 SIRs issued, the Bureau estimated zero to two would reach the Competition Tribunal (the Tribunal) or result in a consent agreement. The Bureau further stated that it aims to engage in earlier and more substantive pre-SIR-issuance dialogue where possible. This effort aligns with the Bureau's stated goal of increased transparency during the information-gathering process.3
At the Canadian Bar Association Competition Law Section Mergers Roundtable on 22 May 2019, the Bureau stated it planned to increase its focus on evidence presented with respect to efficiency claims under Section 96 of the Act. Currently, many parties submit conversations with executives as evidence of efficiency claims. The Bureau announced that it will now examine and test such evidence as rigorously as it tests for anticompetitive effects. The evidence will necessarily be case-specific, but the Bureau may generally include analysis and planning documents related to implementation of the merger; analysis of merger efficiencies and claims being made; and the impact of similar efficiency claims on past mergers.4
In March 2018, the Bureau published a draft of a guideline on merger efficiencies.5 It is intended to inform businesses and their advisers of the Bureau's most recent experience conducting trade-off analysis under Section 96 of the Act, and the circumstances in which the Commissioner may exercise his discretion not to challenge an otherwise anticompetitive merger. The guideline on merger efficiencies is intended to apply to cases subject to a SIR and an analysis of efficiency claims.
The Bureau also continues to issue position statements describing its analysis in complex mergers and key transactions. Major transactions reviewed from June 2018 to February 2019 include the following.
i First Air/Canadian North
On 26 February 2019, the Bureau announced that, following a thorough review, it determined that the proposed merger of First Air and Canadian North was likely to result in a substantial lessening of competition in the provision of passenger travel and cargo services. First Air and Canadian North are airlines that primarily serve the Northwest Territories, Nunavut, and Nunavik, as well as the cities of Edmonton, Ottawa and Montreal. Many communities in northern Canada rely on air services because of the large distances between communities and limited road infrastructure in certain areas. On 13 November 2018, the Minister of Transport directed Transport Canada to examine the transaction with respect to public interest under Section 53.1(5) of the Canada Transportation Act. When such a referral is made, the Commissioner is required to provide a report to the Minister of Transport regarding any potential prevention or lessening of competition that may occur as a result of the transaction – this is the first time under the current legislative regime that the Commissioner has provided such a report. The Bureau's review focused on services offered by both airlines to communities in Nunavut and the Northwest Territories, and found that the transaction would likely result in significant competition concerns on almost all of the parties' overlapping routes. The Bureau found that the merged entity would likely have the ability and incentive to materially raise prices and lower the quality of service to passengers and cargo customers.6 The final decision of the proposed merger will be made by the Governor in Council (Cabinet) based on advice from the Minister of Transport.7
ii Metro Inc/Familiprix/McKesson
On 18 February 2019, as part of its April 2018 consent agreement with Metro Inc (Metro) regarding the acquisition of the Jean Coutu Group (PJC) Inc (Jean Coutu), the Bureau announced it had approved Familiprix Inc and Corporation Groupe Pharmessor (Familixprix) and its affiliate McKesson Canada Corporation (McKesson), as the purchasers of Metro Inc's (Metro) interests relating to 10 retail pharmacies in Quebec. Familiprix is a Canadian group of independent pharmacist owners that operates a network covering all of Quebec and parts of New Brunswick. McKesson is the largest wholesaler of pharmaceutical products in Canada. Metro provides distribution and franchise services to independent pharmacists, operating in Quebec under the Brunet, Clini Plus and Jean Coutu banners. Metro transferred property rights for five pharmacies each to Familiprix and McKesson in eight affected markets in Quebec.8
On 4 December 2018, the Bureau obtained a court order to advance its ongoing investigation into a deal between Postmedia Network Canada Corp (Postmedia) and Torstar Corporation (Torstar) involving the transfer and closure of newspapers in Ontario. Postmedia and Torstar are Canadian newsmedia companies that operate across multiple print, online and mobile platforms.9 On 27 November 2017, Postmedia and Torstar announced the completion of a swap transaction involving the transfer of 41 community and daily newspapers in eastern and southern Ontario. On the same day, Postmedia and Torstar announced that 36 of the 41 newspapers would be closed following the deal. On 12 March 2018, the Bureau confirmed that, in addition to a normal course review under the merger provisions of the Act, it was investigating the transaction under the conspiracy provisions of the Act. The Ontario Superior Court of Justice order requires one former and five current employees of Torstar to be interviewed under oath by Bureau investigators. There has been no conclusion of wrongdoing and no charges have been laid.10
iv La Coop fédérée/Cargill
On 23 November 2018, the Bureau announced that it had reached a consent agreement with La Coop fédérée (LCF) and Cargill Limited (Cargill) related to LCF's proposed acquisition of Cargill's Ontario grain business, retail crop inputs business and Cargill's 50 per cent equity interest in South West Ag Partners Inc (South West). LCF is the largest agri-food enterprise in Quebec, providing growers with goods and services to support crop and animal production operations. Cargill is one of Canada's largest agricultural input retailers and grain handlers. The Bureau concluded that the proposed transaction was unlikely to result in a substantial lessening of competition with respect to grain handling due to LCF's limited pre-existing grain handling infrastructure in Ontario and the existence of effective remaining competition from well-established grain-handling entities. However, the Bureau concluded that the proposed transaction would be likely to substantially lessen competition in the retailing of crop inputs – specifically fertilisers and crop protection products – in certain local areas of southwestern and central Ontario. The Bureau found that the relevant geographic markets for crop input retailing were narrow because of the scarcity of on-farm storage in Ontario caused by smaller-scale agricultural production. Despite the fact that barriers to entry are generally thought to be low in the retailing space, the Bureau believed that new entry would be unlikely. As such, the Bureau concluded that the parties were close rivals with combined high market shares in some local areas, and the proposed transaction would result in the closure of one or more of the parties' sites. To resolve the Bureau's concerns, LCF has agreed to divest four Cargill retail locations in Ontario.11
v Linde AG/Praxair
On 26 October 2018, the Bureau announced that it had reached a consent agreement with Linde AG (Linde) and Praxair Inc (Praxair) that resolved competition concerns in Canada related to their proposed merger. Linde and Praxair are global industrial gas companies who operate production facilities and a network of filling stations and retail branches across Canada, through which they distribute industrial gases to customers across a wide range of industries. The Bureau found that a local or regional presence is often critical to a supplier's ability to deliver industrial gases to customers in a reliable and timely manner. The Bureau identified Linde, Praxair and Air Liquide Canada Inc as the three major suppliers of industrial gases to customers across Canada and determined that the proposed merger between Linde and Praxair would likely result in a substantial lessening of competition in markets for the supply of specific industrial gases. To resolve the Bureau's concerns, the parties agreed to divest Linde's Canadian business, including production facilities, filling stations, retail sites, customer and supply contracts, and certain intellectual property. The Bureau approved Messer Canada Inc as an acceptable purchaser of Linde's Canadian business. Messer is a major supplier of industrial gases in Europe and Asia. Given that Linde and Praxair's businesses operate in many countries, the Bureau coordinated its review with other jurisdictions, including the United States Federal Trade Commission and the European Commission.12
vi United Technologies Corporation/Rockwell Collins
On 1 October 2018, the Bureau issued an NAL concerning the proposed acquisition of Rockwell Collins Inc (Rockwell Collins) by United Technologies Corporation (UTC), indicating that the Commissioner did not intend to make an application under Section 92 of the Act at that time. The terms of the NAL are subject to the implementation of a settlement agreement between the United States Department of Justice (US DOJ) and the merging parties. Rockwell Collins and UTC are global aerospace systems suppliers that develop and manufacture aircraft systems and components, as well as other industrial products. The Bureau determined that the transaction likely would have lessened competition substantially in the markets for pneumatic ice protection systems and trimmable horizontal stabiliser actuators in Canada. However, the Interim Commissioner (who has since been appointed to a five-year term as the Commissioner) was satisfied that the implementation of the settlement agreement between the US DOJ and the merging parties would adequately resolve Canadian competition concerns stemming from the transaction. The Bureau worked closely with the US DOJ Antitrust Division and the European Commission Directorate-General for Competition in conducting its review.13
On 2 October 2017, Pembina Pipeline Corporation (Pembina) acquired Veresen Inc (Veresen). The Bureau continued to review the transaction, as the Act permits the Bureau up to one year to review completed transactions. On 26 September 2018, the Bureau confirmed it had concluded its review of the acquisition and would not challenge the transaction. Pembina and Veresen are publicly traded pipeline transportation and midstream service providers operating in Western Canada and the Northwestern United States. Before the merger, Pembina and Veresen both provided pipeline processing and transportation of natural gas liquids in the Western Canadian Sedimentary Basin. The Bureau conducted an extensive review to assess whether the merger would likely result in a substantial lessening or prevention of competition with respect to ethane transportation in Western Canada. The Interim Commissioner determined that the evidence available was insufficient to support challenging the transaction before the Competition Tribunal (the Tribunal).14
On 20 July 2018, the Bureau announced that it would continue to review competition concerns related to Tervita Corporation's (Tervita) merger with Newalta Corporation (Newalta) despite the parties' announcement that the transaction had closed. Tervita and Newalta provide energy-focused waste disposal and environmental services in the Western Canadian Sedimentary Basin. The Act allows for a one-year period following the completion of a transaction during which the Commissioner may challenge a transaction. The Bureau is continuing to review the merger to determine whether it is likely to result in a substantial lessening or prevention of competition in the energy-focused waste disposal sector within the Western Canadian Sedimentary Basin.15
On 20 August 2018, the Bureau issued an NAL with respect to the proposed merger between Stewart Information Services Corporation (Stewart) and Fidelity National Financial Inc (Fidelity). Stewart and Fidelity are insurance providers in Canada and the United States. The Bureau's investigation related primarily to title insurance policies, which protect retail or commercial property owners and their lenders against losses related to the property's title or ownership. The Bureau concluded that the likely geographic market for title insurance is provincial, as title insurance is priced and sold differently in each province. The Bureau also concluded that title insurance products constitute product markets distinct from other forms of title assurance, particularly title opinions. On this point, the Bureau considered evidence regarding the degree of substitution between title insurance and title opinions and concluded that the two products likely form a single product market on most commercial real estate transactions. The Bureau concluded that for at least a subset of real estate transactions a title opinion is not a close substitute for title insurance, but that even if the product market were to be defined as narrowly as title insurance alone, the proposed transaction would be unlikely to result in a substantial lessening of competition.16
On 27 June 2018, the Bureau announced that it had reached a consent agreement with BASF SE (BASF) in connection with its proposed purchase of assets that Bayer AG (Bayer) must sell following its recent acquisition of Monsanto Company (Monsanto). BASF is a publicly traded company engaged in the production and sale of chemicals and agricultural solutions for crop protection. Bayer is a global pharmaceutical, consumer health, animal health and crop protection science company. BASF's Clearfield Production System for Canola (Clearfield) is a non-genetically modified weed control system used by leading canola seed growers in Canada. Nearly all canola varieties sold in Canada contain one of three herbicide tolerance traits: Bayer's LibertyLink, which is contained in all canola varieties sold by Bayer; Monsanto's Roundup Ready trait, which Monsanto uses in all its own canola varieties and broadly licenses to competitors; and BASF's Clearfield trait, which is contained in certain canola varieties of a number of seed companies. The Commissioner concluded that BASF's acquisition of the Bayer assets would likely have substantially lessened or prevented competition in the supply of canola seeds and traits in Canada.17 To address the Commissioner's concerns, on 28 February 2019, BASF agreed to sell its Clearfield trait and supporting assets to Corveta Agriscience.18
iii THE MERGER CONTROL REGIME
The Act contains two parts that apply to mergers. Part IX contains the pre-merger notification provisions and Part VIII contains the substantive merger review provisions.
i Pre-merger notification
A transaction that exceeds certain thresholds is subject to pre-merger review and may not be completed until the parties have complied with Part IX of the Act. Under Part IX, the parties must file a pre-merger notification with the Bureau and wait until the applicable waiting period has expired, been waived, or been terminated. Failure to file 'without good and sufficient cause' is a criminal offence, punishable by a maximum fine of C$50,000.19 Where the parties close prior to the expiry of the waiting period, the Commissioner can apply to the court for a range of remedies, including fines of up to C$10,000 per day for each day that the parties have closed in advance of the expiry of the waiting period.20
For a pre-merger notification to be required under the Act, a transaction must exceed certain thresholds. For acquisitions of shares or interests in combinations, the size of transaction threshold will be exceeded if the target (and any entities it controls) has assets in Canada, or revenues in or from Canada generated by assets in Canada, in excess of C$96 million.21 The size of parties test is met if the parties to the transaction, together with their respective affiliates, have assets in Canada or revenues in, from or into Canada in excess of C$400 million. For share transactions, the notification requirement is triggered by the acquisition of 20 per cent of the voting shares of a public company or 35 per cent of the voting shares of a private company (or, in each case, 50 per cent of the voting shares if the acquirer already owns the percentages stated above).22
Certain classes of transactions are exempted from notification, including transactions where all parties are affiliates of each other,23 an acquisition of real property or goods in the ordinary course of business,24 acquisitions of share interests in a combination for the sole purpose of underwriting the share or interest,25 acquisitions of collateral or receivables made by a creditor pursuant to a good faith credit transaction in the ordinary course of business,26 certain joint ventures,27 and where the Commissioner has issued an ARC.28
The filing of a notification requires information relating to the nature of the parties' businesses and affiliates, principal customers and suppliers of the parties and their affiliates and general financial information. Other than in the case of a hostile bid (where special timing rules apply),29 each party to the transaction must submit its completed notification form for the waiting period to begin. The information and documentation to be supplied with the form largely mirrors requirements in the United States, namely, all documents evaluating the proposed transaction with respect to competition (known as '4(c)' documents in the United States) as well as the most recent version of any legal documents to be used to implement the proposed transaction.
A transaction that is subject to notification cannot be completed until the expiry of the applicable statutory waiting period. Following the receipt of completed filings by both parties to a transaction, there is a 30-day waiting period. Within that initial 30-day period, the Bureau may issue a SIR if it determines that further information is required to complete its review.30 This power is discretionary and not subject to oversight by the Tribunal or courts.
The issuance of a SIR triggers a second 30-day waiting period, which commences when both parties have substantially complied with the SIR. A proposed transaction may not close until the expiry of this second waiting period (subject to certain exceptions).31
Upon expiry or waiver of the applicable waiting period, the transaction may be completed, unless the Tribunal has issued an order enjoining the completion of the transaction or the parties have otherwise agreed with the Commissioner to defer closing. The Tribunal will only make an order delaying closing where its ability to remedy the merger would be substantially impaired by closing. The waiting period may be terminated earlier if the Commissioner notifies the parties that he or she does not intend, at that time, to make an application to the Tribunal under the substantive merger provisions (by issuing an NAL), or if the Commissioner issues an ARC. The waiting period may be extended if the Commissioner seeks, and is granted, an order from the Tribunal delaying closing.32
The Bureau's non-binding Merger Review Process Guidelines (Process Guidelines) provide guidance on the Bureau's administrative approach to the merger review process. The Bureau aims to obtain the information it requires to complete its assessment as early in the process as possible. During the initial 30-day period, the parties to the transaction may wish to engage in consultations with the Commissioner, who may also request that the parties provide further information on a voluntary basis.33
Compliance with these requests may reduce the scope of, or potentially even the need for, a SIR. Where parties intend to rely upon exceptions set out in the Act, such as efficiency gains likely to result from the transaction, the Bureau encourages the parties to provide substantiating claims regarding those exceptions as early as possible during the review process. The Bureau may also seek information from third parties by issuing a voluntary information request or by obtaining court orders under Section 11 of the Act directing a third party to provide certain information in connection with the Bureau's review of the transaction.
The Process Guidelines establish standards for the scope of a SIR, including the relevant time frame for which the Bureau will generally request data, the number of custodians in respect of which records may be collected, and the potential for timing agreements, by which the parties and the Bureau may agree upon voluntary extensions to the review period. One aspect of the Bureau's dialogue with the parties prior to issuing a SIR centres on the appropriateness of requests the Bureau intends to make in the SIR. For example, the Bureau may seek feedback to determine whether the parties maintain data in the form in which the Bureau intends to request it and with whom or how such data is held. In addition, the Bureau may seek to identify any confidentiality concerns associated with the provision of such data, and ascertain whether there are any other issues that might impair the ability of the parties to comply with the SIR as a result of ambiguities or inconsistent terminology. Dialogue prior to the issuance of a SIR does not preclude post-issuance dialogue for the purpose of further narrowing issues or scope for production.
The number of custodians for the purposes of collecting records related to the transaction can be an important factor in the overall cost of complying with a SIR, and it is in the parties' interest to attempt to limit the number of custodians as much as possible. The Process Guidelines state that the Bureau will generally cap the number of record custodians to be searched in preparing a response to a SIR at a maximum of 30 individuals.34 However, this does not preclude the Bureau asking for information contained in central files (such as budgets, contracts and financial reports), in the files of predecessors and assistants of custodians (during the search period identified by the Bureau), and in the files of employees operating at the local level where it has determined that local markets are relevant to the merger review. In some situations, such as where operations are run at the North American level and there are no issues unique to Canada, the Bureau may agree to align custodians with those identified by US authorities for the purposes of a second request under the HSR Act. Generally, the Bureau limits the time period for the collection of records prepared by the party to the two calendar years immediately preceding the issuance of the SIR, and limits data requests to the three calendar years immediately preceding the issuance of the SIR.
The Process Guidelines also purport to establish an internal appeals process to deal with disputes over a SIR. If a party objects to the scope of a SIR and cannot resolve the issue with the relevant assistant deputy commissioner, the party may submit a written notice of appeal. The notice is forwarded to a senior Bureau official outside the mergers branch who, after hearing from the party and relevant assistant deputy commissioner, will either confirm the SIR or modify it. The same process can be used if the party and assistant deputy commissioner disagree over whether there has been compliance with the SIR (and therefore disagree over whether the second waiting period has commenced). If that disagreement persists, the Bureau may apply to a court35 for a determination on the question of compliance.
The Process Guidelines also emphasise the Bureau's desire to cooperate with its counterpart agencies in other jurisdictions. The Bureau's position is that it may share information with such agencies as required for the enforcement of the Act, and parties should assume that the Bureau will share information with any other jurisdiction where the parties have notified their transaction.
ii Substantive considerations
Regardless of whether a transaction is subject to pre-merger notification, the substantive provisions of the Act apply to all mergers. The substantive test the Bureau applies in reviewing transactions is whether the transaction is likely to prevent or lessen competition substantially in a relevant market. There is an express efficiency defence to anticompetitive mergers, which applies to cases where the efficiencies from the merger are likely to be greater than, and offset any effects of, the prevention or lessening of competition. Mergers may be challenged only by the Commissioner, who can apply to the Tribunal to delay or block closing and to unwind or seek other remedies for completed mergers for up to one year after their completion.
The expiry of the applicable statutory waiting period does not always mean that the Bureau has completed its substantive review of a transaction.36 It is often the case that the Bureau's review will extend beyond the waiting period in complex cases. However, unless the Commissioner is successful in obtaining an injunction under the Act to prevent the parties from closing, as a legal matter, the parties are free to close after expiry of the waiting period, or any extension thereof.
The Bureau has adopted non-binding service standards to indicate the expected time for the completion of its substantive review of a merger. 'Non-complex' transactions carry a 14-day time frame for review. 'Complex' transactions carry a 45-day time frame for review or, if a SIR is issued, the time frame is extended to 30 days from the date of compliance with the SIR.
iv OTHER STRATEGIC CONSIDERATIONS
Effective 5 March 2019, former Assistant Crown Attorney and Interim Commissioner of Competition Matthew Boswell was appointed as Commissioner of Competition for a five-year term. Mr Boswell joined the Bureau in 2011 and has held the role of Senior Deputy Commissioner since September 2012. Mr Boswell is replacing former Commissioner John Pecman, who retired at the end of May 2018.
Commissioner Boswell has recently outlined a more vigorous approach to enforcement regarding non-notifiable mergers, including the expansion of the Merger Intelligence and Notification Unit to increase its focus on detecting non-notifiable mergers.37 As such, we expect to see an increased number of post-closing investigations initiated by the Bureau.
v OUTLOOK and CONCLUSIONS
The Bureau continues its practice of actively scanning the Canadian marketplace for, and reviewing and challenging, mergers – even where they do not trigger a notification requirement under the Act. This highlights a number of considerations that parties contemplating a transaction should keep in mind, including the following.
- Regardless of whether a merger triggers a pre-merger notification requirement under Part IX of the Act, it may be challenged by the Bureau for up to one year after its completion. As such, substantive due diligence is critical in mergers between competitors and between suppliers and customers, even in circumstances where formal advance notice need not be given to the Bureau.
- Parties to a merger should be aware of the importance of documents in the Bureau's review of mergers, as a review of the parties' internal documents can affect both the length and outcome of the Bureau's assessment of a transaction.
- The Bureau is receptive to receiving the views of market contacts on mergers, whether those parties are customers, suppliers, competitors or others. While the Bureau is sensitive to strategic complaints, it will follow up on complaints and follow the evidence as appropriate in any given case.
The Bureau closely coordinates merger reviews with foreign agencies, particularly with the US Department of Justice and Federal Trade Commission as well as the European Commission. Coordination between the Bureau and foreign agencies generally involves a request that merging parties grant a waiver to foreign agencies reviewing the transaction to allow those agencies to share any information they receive with the Bureau. This facilitates the coordination of the agencies' reviews, including sharing analysis and holding frequent update calls or meetings.38 The Bureau will take into account remedies imposed in other jurisdictions to the extent that such remedies address competition concerns in Canada; however, the Bureau will continue to require separate or additional remedies in Canada where these are necessary to address Canadian specific concerns.
One word of caution, however: while coordination and cooperation with international agencies is on the rise, and the Bureau generally makes efforts to keep the length of its review in step with foreign agencies, the Commissioner's review can extend beyond the time for obtaining clearance in other jurisdictions, particularly where a merger raises unique substantive issues in Canada.
1 Julie A Soloway and Cassandra Brown are partners and Peter Flynn is an associate in the Competition, Antitrust and Foreign Investment Group at Blake, Cassels & Graydon LLP. The authors also thank summer student Kevin Dowse for his research assistance.
2 Competition Bureau, 'Speaking Notes for Melanie L. Aitken, Interim Commissioner of Competition' (12 May 2009); available online at: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03066.html.
3 Canadian Bar Association Competition Law Section, 'Mergers and Reviewable Matters/Unilateral Conduct Committees Joint Roundtable' (22 May 2019).
4 Canadian Bar Association Competition Law Section, 'Mergers and Reviewable Matters/Unilateral Conduct Committees Joint Roundtable' (22 May 2019).
5 Competition Bureau, 'A practical guide to efficiencies analysis in merger reviews' (20 March 2019); available online at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04350.html.
6 Competition Bureau, 'Report to the Minister of Transport and the Parties to the Transaction Pursuant to Subsection 53.2(2) of the Canada Transportation Act' (25 February 2019); available online at
7 Competition Bureau, 'Competition Bureau provides report to Minister of Transport outlining competition concerns in proposed northern airlines merger' (26 February 2019); available online at www.canada.ca/en/competition-bureau/news/2019/02/competition-bureau-provides-report-to-minister-of-transport-outlining-competition-concerns-in-proposed-northern-airlines-merger.html.
8 Competition Bureau, 'Competition Bureau approves transfer of interests in 10 Quebec pharmacies from Metro to Familiprix, McKesson' (18 February 2019); available online at www.canada.ca/en/competition-bureau/news/2019/02/competition-bureau-approves-transfer-of-interests-in-
9 Postmedia, 'Postmedia Announces Community Newspapers Transaction with Torstar' (27 November 2017); available online at www.postmedia.com/2017/11/27/postmedia-announces-community-newspapers-transaction-with-torstar/.
10 Competition Bureau, 'Competition Bureau obtains court order to advance ongoing investigation of Postmedia and Torstar' (4 December 2018); available online at www.canada.ca/en/competition-bureau/news/2018/11/competition-bureau-obtains-court-order-to-advance-ongoing-investigation-of-postmedia-and-torstar.html.
11 Competition Bureau, 'Competition Bureau statement regarding La Coop fédérée's proposed acquisition of Cargill Limited's grain and retail crop inputs business in Ontario' (14 November 2018); available online at: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04403.html.
12 Competition Bureau, 'Competition Bureau statement regarding the proposed merger between Linde AG and Praxair, Inc.' (26 October 2018); available online at: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04400.html.
13 Competition Bureau, 'Competition Bureau will not oppose aerospace systems acquisition' (1 October 2018); available online at: www.canada.ca/en/competition-bureau/news/2018/10/competition-bureau-will-not-oppose-aerospace-systems-acquisition.html.
14 Competition Bureau, 'Competition Bureau will not challenge acquisition of Verena by Pembina' (26 September 2018); available online at: www.canada.ca/en/competition-bureau/news/2018/09/competition-bureau-will-not-challenge-acquisition-of-veresen-by-pembina.html.
15 Competition Bureau, 'Competition Bureau continues Tervita and Newalta merger review' (20 July 2018); available online at: www.canada.ca/en/competition-bureau/news/2018/07/competition-bureau-
16 Competition Bureau, 'Competition Bureau statement regarding proposed merger between Stewart and Fidelity National Financial' (4 September 2018); available online at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04386.html.
17 Competition Bureau, 'Competition Bureau statement regarding BASF's purchase of assets from Bayer AG following its acquisition of Monsanto Company' (27 June 2018); available online at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04378.html.
18 The Western Producer, 'BASF sells Clearfield to Corveta Agriscience' (28 February 2019); available online at www.producer.com/2019/02/basf-sells-clearfield-to-corteva-agriscience/.
19 Section 65(2) of the Act.
20 Section 123.1 of the Act.
21 This threshold is subject to adjustment for inflation, and annual adjustments are published in the Canada Gazette. C$96 million is the applicable threshold as of 2019.
22 Section 110(3)(b) of the Act.
23 Section 113(a) of the Act.
24 Section 111(a) of the Act.
25 Section 111(b) of the Act.
26 Section 111(d) of the Act.
27 Section 112 of the Act.
28 Section 113(b) of the Act.
29 In hostile transactions, the 30-day waiting period begins to run when the offering party files a notification. A target company must still file a notification within 10 days of receiving notice from the Bureau to do so. In this way, a target cannot extend the timing of the waiting period by holding up its notification.
30 Section 114(2) of the Act.
31 Exceptions include situations where the transaction involves a hostile bid, where the parties receive a waiver that terminates the second statutory waiting period, and where the parties conclude a consent agreement with the Commissioner.
32 Section 100 of the Act. The Tribunal may only grant such an order in the limited circumstances set out in Paragraphs 101(1)(a) and 101(1)(b) of the Act.
33 Competition Bureau, 'Merger Review Process Guidelines' (8 September 2015) at Section 2; available online at: www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/merger-review-process-2015-e.pdf/$FILE/merger-review-process-2015-e.pdf.
34 ibid., at Section 3.4.2.
35 Subsection 123.1(4) of the Act defines 'a court' for this purpose to mean the Tribunal, the Federal Court or the superior court of a province.
36 See, for example, Pembina/Veresen and Tervita/Newalta.
37 Competition Bureau, 'No River too Wide, No Mountain too High: Enforcing and Promoting Competition in the Digital Age' (7 May 2019), Remarks by Commissioner of Competition Matthew Boswell at Canadian Bar Association Competition Law Spring Conference 2019; available online at: www.canada.ca/en/competition-bureau/news/2019/05/no-river-too-wide-no-mountain-too-high-enforcing-and-promoting-competition-in-the-digital-age.html.
38 It is the Bureau's view that it does not require a waiver to provide confidential information to foreign agencies if done for the purposes of the administration or enforcement of the Act (Section 29 of the Act).