Over the course of 2019 and the first quarter of 2020, the Competition Bureau (Bureau), led by the Commissioner of Competition (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 the Bureau heavily scrutinised a small number of major transactions, ultimately most of these transactions were cleared with no remedies required. Consistent with many global competition agencies, the Bureau also issued specific guidance with respect to its approach to merger review during the covid-19 global pandemic.
II YEAR IN REVIEW
In 2019, the Bureau concluded 216 merger reviews. From March 2019 to April 2020, 244 merger reviews were concluded. Of those, 109 merger reviews (45 per cent) concluded with the issuance of an advance ruling certificate (ARC) and 133 (55 per cent) concluded with the issuance of a no-action letter (NAL). In the first half of the Bureau's 2019–2020 year,2 116 merger reviews were concluded, of which 114 (98 per cent) had no enforcement action taken (42 ARCs (36 per cent) and 66 NALs (57 per cent)). The Bureau also reported that it cleared 98 per cent of its non-complex reviews and 90 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 review time in the first term of 2019–2020 for non-complex mergers was 11.6 days, and the average review time for complex mergers was 37.1 days.
Although the Bureau initially anticipated issuing SIRs only in the case of 'those very few mergers that raise significant potential issues',3 13 SIRs were issued in 2018–2019 and six SIRs were issued in the first half of the Bureau's 2019–2020 year. 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 issuance of a SIR does not signal that the Bureau will require a remedy.
The Bureau's response to the covid-19 pandemic has been focused on (1) protecting consumers and businesses from anticompetitive activity; and (2) providing guidance for competitor collaborations to support the crisis response efforts.4 It has been closely monitoring potentially harmful anticompetitive conduct seeking to take advantage of consumers and businesses during the covid-19 crisis, including deceptive marketing practices and collusion by competing businesses. Where there is a clear imperative for competitor collaboration in response to the crisis, and where the collaboration is executed in good faith and as a temporary measure, the Bureau has stated that it will generally refrain from exercising scrutiny. The Bureau has stated that it does not wish to see specific elements of competition law enforcement potentially chill what may be required to help Canadians. Notwithstanding this general approach, the Bureau has cautioned that it will have zero tolerance for attempts to abuse this flexibility or misuse its guidance regarding competitor collaborations as cover for unnecessary conduct that violates the Competition Act.
The Bureau also continues to issue position statements describing its analysis in complex mergers and key transactions. Major transactions reviewed from March 2019 to April 2020 include the following.
On 30 May 2019, the Bureau announced that it had concluded its review of the proposed acquisition of the assets associated with the natural cheese business of Kraft Heinz Canada ULC by Parmalat SpA. For the first time in a merger review since the 2009 amendments to the Competition Act, the Bureau obtained a federal court order requiring executives of the merging parties to be interviewed under oath by Bureau investigators. The Bureau also gathered evidence and obtained information through interviews with key market participants, including grocery retailers, food service companies, regulators, industry associations and cheese processors.5 The Bureau issued an NAL to the merging parties, confirming it would not challenge the proposed acquisition.
On 21 June 2019, the Bureau announced that it had issued an NAL concerning the proposed merger between Harris Corporation (Harris) and L3 Technologies, Inc (L3). The terms of the NAL were subject to the implementation of a consent decree between the United States Department of Justice (the US DOJ) and the merging parties. The Bureau's investigation concluded that the proposed transaction would likely substantially lessen competition in certain markets related to night vision operations. However, the US DOJ had ordered Harris to divest the entirety of its night vision business to proceed with the merger. This remedy resolved the Bureau's competition concerns with the transaction. The Bureau worked with the US DOJ and the European Commission in conducting its review, due to the parties' supply of defence technology and services to both Canadian and foreign jurisdictions.6
iii Thoma Bravo/Aucerna
On 20 August 2019, the Bureau reached a consent agreement with Thoma Bravo whereby Thoma Bravo agreed to sell Quorum's MOSAIC business to a purchaser acceptable to the Commissioner. Following Thoma Bravo's acquisition of Aucerna in May 2019, Thoma Bravo owned two of the largest oil and gas reserves software businesses in Canada (MOSAIC and Val Nav). Following closing, and after the expiry of the statutory waiting period, the Bureau applied to the Competition Tribunal on 14 June 2019 for an order requiring Thoma Bravo to sell either MOSAIC or Val Nav. The Bureau asserted that the two entities had been one another's closest rivals and that the rivalry between them incentivised the businesses to regularly enhance MOSAIC and Val Nav. The Bureau believed that the transaction resulted in a merger to monopolise the supply of oil and gas reserves valuation and reporting software to medium and large producers in Canada and that the transaction was likely to substantially lessen competition, resulting in higher prices, lower quality service, reduced product quality and less innovation for customers of reserves software in Canada.7
iv Parrish & Heimbecker/Louis Drefus Company grain elevator
On 20 December 2019, the Bureau announced that it was challenging Parrish & Heimbecker's (P&H) acquisition of a primary grain elevator in Virden, Manitoba from Louis Drefus Company. The Bureau filed an application with the Tribunal for an order requiring P&H to sell either its elevator in Moosomin, Saskatchewan or its newly acquired elevator in Virden, Manitoba. With the acquisition, P&H controlled both grain elevators along a 180km stretch of the Trans-Canada Highway. The Bureau alleges that prior to the acquisition, the elevators in Moosomin and Virden were close competitors, monitoring each other's wheat and canola prices and responding to competitive activity from each other by offering farmers better prices. As a result of the acquisition, the Bureau asserted that farmers in the corridor between Moosomin and Virden would earn less for their wheat and canola.8 The Competition Tribunal is currently expected to hear oral arguments on the Bureau's application in December 2020.
On 28 January 2020, the Bureau reached an agreement with Evonik Industries AG whereby Evonik agreed to sell PeroxyChem's hydrogen peroxide manufacturing facility located in Prince George, British Columbia, and related assets, to United Initiators (UI). The Bureau had concluded that Evonik's acquisition of PeroxyChem was likely to result in a substantial lessening of competition in the supply of hydrogen peroxide in Western Canada. The Bureau concluded that UI was an acceptable buyer and was satisfied that the agreement would preserve competition for the supply of hydrogen peroxide in Western Canada.9
vi Air Canada/Air Transat
On 27 March 2020, the Bureau announced its conclusion that Air Canada's proposed acquisition of Air Transat was likely to result in a substantial lessening or prevention of competition for the supply of air travel and holiday packages to Canadians. The Commissioner delivered a report to the Minister of Transport outlining the Bureau's concerns, which informed Transport Canada's public interest review of the proposed transaction as it relates to national transportation. The Bureau asserted that by eliminating the rivalry between the airlines, the transaction would increase prices, decrease service and choice, and significantly reduce travel by Canadians on 83 routes where the parties' existing networks overlap (including 22 routes where the parties were the only two carriers offering service). In its news release, the Bureau noted that its assessment was based on forward-looking analysis using data and information collected prior to the covid-19 pandemic. The Bureau recognised that the impact of covid-19 may be relevant to its views on the proposed transaction but said that it was impossible to know the full extent and duration of impacts at that time. The Governor in Council (Cabinet) will make the final decision regarding the Air Canada/Air Transat transaction. Transport Canada was required to provide its completed public interest assessment to the Minister by 2 May 2020.10
vii United Technologies Corporation/Raytheon
On 30 March 2020, the Bureau announced that it had issued an NAL to United Technologies Corporation (UTC) and Raytheon Company regarding their proposed merger. The NAL confirmed that the Bureau would not challenge the proposed merger at that time. The terms of the NAL were subject to the implementation of the settlement agreement between the merging parties and the US DOJ, as well as the European Commission Directorate-General for Competition (EC). The Bureau concluded that the proposed transaction would likely substantially lessen competition in certain markets retailed to the military airborne radio and military GPS businesses of the merging parties. However, remedies obtained by the US DOJ and EC required UTC to sell its military GPS business and Raytheon to sell its military airborne radio business in their entirety to BAE Systems, Inc or another approved buyer. The Commissioner found that those remedies adequately resolved the Bureau's concerns with the transaction. In light of UTC and Raytheon's distribution of products in both Canada and foreign jurisdictions, the Bureau carried out its review in cooperation with the US DOJ and the EC.11
viii Canadian National Railway Company/H&R Transport
On 22 April 2020, the Bureau released a position statement outlining its analysis conducted in the investigation of Canadian National Railway Company's (CN) proposed acquisition of H&R Transport Limited (H&R). In July 2019, the Commissioner entered into a timing agreement with CN and H&R regarding the timing and information required for the Bureau's investigation into potential anticompetitive effects and the parties' claimed efficiencies before deciding whether to challenge the transaction before the Competition Tribunal. This was the first merger review to make use of the Bureau's draft model timing agreement for mergers involving claimed efficiencies. The Bureau's investigation concluded that the proposed transaction would likely result in a substantial lessening of competition for full truckload refrigerated intermodal services in eight relevant Canadian markets. However, the Bureau concluded that the efficiency gains outweighed the likely anticompetitive effects of the transaction.12
ix American Iron & Metal Company/Total Metal Recovery
On 29 April 2020, the Bureau announced the closure of its investigation into scrap metal processor American Iron & Metal Company Inc's (AIM) acquisition of Total Metal Recovery Inc (TMR). The Bureau's conclusion came after a three-month inquiry into whether the transaction would affect competition for the purchase and sale of unprocessed and processed scrap metal in Quebec. Prior to the acquisition, AIM and TMR operated neighbouring scrap metal facilities in the Montreal area. On 18 December 2019, the Bureau announced that it had reached an interim agreement with AIM to preserve specific assets for 60 days while the Bureau investigated the transaction. AIM was required to maintain the viability and marketability of the assets throughout the 60-day period, and the agreement prevented AIM from selling TMR assets, among other actions, during the investigation. The Bureau found that TMR was a failing firm whose assets were likely to have exited the market in the absence of the merger. On that basis, no further action was required. In its 29 April 2020 news release, the Bureau reminded merging parties intending to make failing firm claims to provide complete information to the Bureau as early as possible during a review.13
III THE MERGER CONTROL REGIME
The Competition 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 Competition 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$50,000.14 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.15
For a pre-merger notification to be required under the Competition 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.16 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).17
Certain classes of transactions are exempted from notification, including transactions where all parties are affiliates of each other,18 an acquisition of real property or goods in the ordinary course of business,19 acquisitions of share interests in a combination for the sole purpose of underwriting the share or interest,20 acquisitions of collateral or receivables made by a creditor pursuant to a good faith credit transaction in the ordinary course of business,21 certain joint ventures,22 and where the Commissioner has issued an ARC.23
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),24 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.25 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).26
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.27
The Bureau's non-binding Merger Review Process Guidelines (the 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.28
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 Competition 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 Competition 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.29 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 Hart-Scott-Rodino 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 court30 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 Competition 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 Competition 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.31 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 Competition 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. In recent years, the Bureau has increasingly issued a press release concerning its ongoing substantive reviews after the expiry of the waiting period (and, in some cases, the closing of the transaction).
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
On 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.
Commissioner Boswell has 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.32 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 Competition 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 Competition 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 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.33 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 at Blake, Cassels & Graydon LLP. The authors thank articling student Jennifer Crawford for her research assistance.
2 1 April 2019 to 30 September 2019.
3 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.
4 Competition Bureau, 'COVID-19: What the Competition Bureau is doing' (updated 6 May 2020); available online at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/h_04525.html.
5 Competition Bureau, 'Competition Bureau will not oppose Kraft sale of natural cheese business to Parmalat' (30 May 2019); available online at www.canada.ca/en/competition-bureau/news/2019/05/competition-bureau-will-not-oppose-kraft-sale-of-natural-cheese-business-to-parmalat.html.
6 Competition Bureau, 'Competition Bureau will not oppose merger between defence contractors Harris Corporation and L3 Technologies' (21 June 2019); available online at www.canada.ca/en/competition-bureau/news/2019/06/competition-bureau-will-not-oppose-merger-between-defence-contractors-harris-corporation-and-l3-technologies.html.
7 Competition Bureau, 'Competition preserved in the supply of oil and gas reserves software in Canada' (20 August 2019); available online at www.canada.ca/en/competition-bureau/news/2019/08/competition-preserved-in-the-supply-of-oil-and-gas-reserves-software-in-canada.html; Competition Bureau, 'Competition Bureau challenges Thoma Bravo's acquisition of oil and gas reserves software firm Aucerna' (17 June 2019); available online at www.canada.ca/en/competition-bureau/news/2019/06/competition-bureau-challenges-thoma-bravos-acquisition-of-oil-and-gas-reserves-software-firm-aucerna.html.
8 Competition Bureau, 'Competition Bureau challenges P&H's acquisition of grain elevator from Louis Dreyfus in Virden, MB' (20 December 2019); available online at www.canada.ca/en/competition-bureau/news/2019/12/competition-bureau-challenges-phs-acquisition-of-grain-elevator-from-louis-dreyfus-in-virden-mb.html.
9 Competition Bureau, 'Competition Bureau reaches agreement with Evonik to address concerns raised by acquisition of PeroxyChem' (28 January 2020); available online at www.canada.ca/en/competition-bureau/news/2020/01/competition-bureau-reaches-agreement-with-evonik-to-address-concerns-raised-by-acquisition-of-peroxychem.html.
10 Competition Bureau, 'Competition Bureau issues report outlining competition concerns with Air Canada's proposed acquisition of Transat' (27 March 2020); available online at www.canada.ca/en/competition-bureau/news/2020/03/competition-bureau-issues-report-outlining-competition-concerns-with-air-canadas-proposed-acquisition-of-transat.html.
11 Competition Bureau, 'Competition Bureau will not oppose merger between United Technologies and Raytheon' (30 March 2020); available online at www.canada.ca/en/competition-bureau/news/2020/03/competition-bureau-will-not-oppose-merger-between-united-technologies-and-raytheon.html.
12 Competition Bureau, 'Competition Bureau outlines its assessment of CN's acquisition of H&R' (22 April 2020); available online at www.canada.ca/en/competition-bureau/news/2020/04/competition-bureau-outlines-its-assessment-of-cns-acquisition-of-hr.html.
13 Competition Bureau, 'Competition Bureau closes investigation of scrap metal processor AIM's acquisition of TMR' (29 April 2020); available online at www.canada.ca/en/competition-bureau/news/2020/04/competition-bureau-closes-investigation-of-scrap-metal-processor-aims-acquisition-of-tmr.html; Competition Bureau, 'Competition Bureau reaches interim agreement with AIM while it investigates acquisition of TMR' (18 December 2019); available online at www.canada.ca/en/competition-bureau/news/2019/12/competition-bureau-reaches-interim-agreement-with-aim-while-it-investigates-acquisition-of-tmr.html.
14 Section 65(2) of the Competition Act.
15 Section 123.1 of the Competition Act.
16 This threshold is subject to adjustment for inflation, and annual adjustments are published in the Canada Gazette. C$96 million is the applicable threshold as of 2020.
17 Section 110(3)(b) of the Competition Act.
18 Section 113(a) of the Competition Act.
19 Section 111(a) of the Competition Act.
20 Section 111(b) of the Competition Act.
21 Section 111(d) of the Competition Act.
22 Section 112 of the Competition Act.
23 Section 113(b) of the Competition Act.
24 In hostile transactions, the 30-day waiting period begins to run when the offering party files a notification. A target company must still file a notification within 10 days of receiving notice from the Bureau to do so. In this way, a target cannot extend the timing of the waiting period by holding up its notification.
25 Section 114(2) of the Competition Act.
26 Exceptions include situations where the transaction involves a hostile bid, where the parties receive a waiver that terminates the second statutory waiting period, and where the parties conclude a consent agreement with the Commissioner.
27 Section 100 of the Competition Act. The Tribunal may only grant such an order in the limited circumstances set out in Paragraphs 101(1)(a) and 101(1)(b) of the Competition Act.
28 Competition Bureau, 'Merger Review Process Guidelines' (8 September 2015) at Section 2; available online at www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/merger-review-process-2015-e.pdf/$FILE/merger-review-process-2015-e.pdf.
29 ibid., at Section 3.4.2.
30 Subsection 123.1(4) of the Competition Act defines 'a court' for this purpose to mean the Tribunal, the Federal Court or the superior court of a province.
31 See, for example, Pembina/Veresen, Tervita/Newalta and Thoma Bravo/Aucerna.
32 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 the 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.
33 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 Competition Act (Section 29 of the Competition Act).