Over the course of 2017 and the first half of 2018, 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.
This period also saw amendments to the Competition Act (the Act) that will affect merger reviews going forward. In particular, a revised definition of 'affiliate' in the Act came into effect on 1 May 2018, which removed asymmetries in the affiliation rules as between corporate and non-corporate entities, such that corporate and non-corporate entities are now treated in the same manner. The change to the affiliation rules will impact the determination of: (1) whether a transaction is subject to notification; and (2) the content of pre-merger notification filings.
ii YEAR IN REVIEW
The number of merger reviews in Canada increased during the 2017–2018 year, with the average number of filings per month in 2017–2018 (19) being slightly higher than the next highest average (18 in 2008–2009). The Bureau reports having concluded 231 merger reviews during this period, an increase of approximately 4.1 per cent over its reported figures for the previous fiscal year. Of those 231 transactions, 70 were classified as 'complex', and only six transactions resulted in a consent agreement.
Although the Bureau initially anticipated issuing SIRs only in the case of 'those very few mergers that raise significant potential issues',2 in 2017–2018, 10 SIRs were issued, representing approximately 4.3 per cent of the transactions reviewed. An 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 reports that it continues to clear more than 93 per cent of the transactions it reviews within its target time frame according to the complexity of the review (called a 'service standard') – and notes that it takes an average of 10.62 days to review a non-complex transaction and 53.48 days to review a complex transaction. However, the Bureau's statistics do not account for transactions where the parties and the Commissioner have entered into a timing agreement.
The issuance of an SIR does not signal that the Bureau will require a remedy. On the contrary, the Bureau has issued 10 SIRs over the 2017–2018 period and entered into consent agreements in only six of those cases. One further case was concluded with issues, but no Canadian consent agreement was required.
The Bureau released one new interpretation guideline related to merger review in 2017 that provides guidance on creditor acquisitions where the business being acquired is defunct, temporarily closed, or has suspended operations.3 The Bureau also continues to issue position statements describing its analysis in complex mergers and key transactions. From 2017 to present, the Bureau has issued 10 position statements.
Major transactions reviewed from 2017 to mid-2018 include the following.
Corus Entertainment Inc/Bell Media Inc
On 17 October 2017, Corus Entertainment (Corus) announced an agreement to sell French language speciality channels Historia and Séries+ to BCE Inc (Bell). On 25 May 2018, the Commissioner informed Bell that the transaction would not be approved. Bell's 50 per cent interests in Historia and Séries+ were originally divested to Corus in January 2014 pursuant to a consent agreement between Bell and the Commissioner. Bell was required to divest these and other assets to address the Commissioner's concerns regarding Bell's acquisition of Astral Media Inc in 2013. The consent agreement further provided that Bell could not reacquire a divested programming service for 10 years without the prior written approval of the Commissioner. The Commissioner took the position that the relevant test to be applied for the proposed transaction was whether the conditions the led to the original consent agreement (for the supply of French language television programming services to programming distributors) had materially changed, rather than whether the new transaction would prevent or lessen competition substantially compared to the prevailing conditions in the marketplace. The Commissioner ultimately found that the conditions the led to the original consent agreement had not materially changed, and did not approve the reacquisition.4
On 30 May 2018, the Competition Bureau announced that it had reached a consent agreement with Bayer AG (Bayer) in respect of its proposed acquisition of Monsanto Company (Monsanto), announced on 14 September, 2016. Bayer is a global pharmaceutical, consumer health, animal health and crop protection science company and Monsanto is a global provider of agricultural products. The Commissioner was concerned about the proposed acquisition's potential effects on competition and innovation in the agricultural sector. An extensive review by the Bureau found that the acquisition was likely to substantially lessen and prevent competition in Canada with respect to the supply of several seeds, traits and treatments. To address the Commissioner's concerns, the consent agreement requires that Bayer sell its canola seed and traits business, soybean seed and traits business, carrot seed business, nematode seed treatment business, glufosinate-ammonium herbicide business, LibertyLink herbicide tolerance technology, assets related to the Centurion herbicide, and digital farming business in Canada. Given that Bayer and Monsanto's businesses operate in many countries and the global nature of the transaction, the Bureau coordinated its review with other jurisdictions, including the European Commission and the US Department of Justice. The Bureau continues to review the suitability of Bayer's proposed buyer of the assets.5
Metro Inc/Jean Coutu
On 23 April 2018, the Commissioner entered into a consent agreement with Metro Inc (Metro) regarding the acquisition of the Jean Coutu Group (PJC) Inc (Jean Coutu). Prior to the agreement, the Bureau extensively reviewed the proposed acquisition, analysing over 150 local markets where both parties provide distribution and franchise services to independent pharmacists. The Bureau focused its analysis on whether the transaction would enable Metro to increase the charge to pharmacists for franchise royalties, wholesale goods prices, distribution fees, and other payments. The Bureau found that post-transaction, Metro would have the incentive to increase prices and decrease the quality of services provided in eight markets located in the Province of Quebec.6 To address these concerns, Metro agreed to divest all of its rights in 10 pharmacies in the eight problematic markets.7
On 1 February 2017, Abbott Laboratories (Abbott), a global health company, announced that it would acquire Alere Inc (Alere), a global medical diagnostics company. The Bureau's review of this transaction focused on the parties' products in point-of-care testing. The Bureau found that Abbott and Alere products were the largest competitors in both bedside blood gas testing and bedside cardiac marker testing. It was also found that the barriers to entry in these markets for new competitors were high. The Bureau's findings were similar with respect to the parties' related offerings for the veterinary market. The Bureau, Abbott and Alere reached a consent agreement requiring the sale of Alere's businesses relating to these products, including Alere's manufacturing facilities for the products and any intellectual property relating to the systems. Rather than relying on remedies from foreign jurisdictions, a specific remedy was ordered in Canada, for reasons including the existence of manufacturing assets in Canada.8
Superior Plus LP/Canwest Propane
On 13 February 2017, Superior Plus LP (Superior) announced a proposed acquisition of Canwest Propane (Canwest). At the time of the transaction, Superior was Canada's largest national propane retailer and Canwest operated in the retail bulk propane distribution business in western Canada. The Bureau's review of this transaction involved considering the efficiency exception under Section 96 of the Act. Section 96 prohibits a remedial order where the parties can demonstrate that the likely efficiency gains from the merger would outweigh and offset the merger's likely anticompetitive effects. The Bureau's approach was to analyse the anticompetitive effects of the merger in each of 25 relevant geographic markets for the retail sale of bulk propane. The Bureau found that competition was likely to be substantially lessened in 22 of the markets. The Bureau also analysed the efficiency trade-offs in each local market and concluded that there would be no remedy required in 10 local markets due to the trade-offs. In regards to the remaining 12 markets, the Bureau announced a consent agreement with the parties on 28 September 2017, which required the sale of assets in all 12 regions and the sale of a portion of customer contracts in several regions. Superior also agreed to waive contract terms preventing customers from switching suppliers in several regions.9
Agrium/Potash Corporation of Saskatchewan
On 11 September 2017, the Bureau issued a no action letter (NAL), concerning a proposed merger between Agrium Inc (Agrium) and Potash Corporation of Saskatchewan Inc (PCS), indicating that the Commissioner did not intend to make an application under Section 92 of the Act at that time. Agrium and PCS were both global manufacturers and suppliers of fertilizer products. In the course of its merger review, the Bureau investigated multiple products produced and sold by each party including potash fertilizer, dry or liquid phosphate fertilizer and nitric acid. The US Federal Trade Commission also reviewed the transaction and coordinated closely with the Bureau. The Bureau's approach in this review focused on the strength of remaining competitors in each of the fertilizer markets. The Bureau concluded that as a result of effective remaining competition and the entry of a new competitor in potash, the proposed transaction was not likely to lead to a substantial lessening of competition.10
On 27 June 2017, the Bureau announced that it had reached separate consent agreements with Alimentation Couche-Tard Inc (Couche-Tard) and Parkland Industries Ltd (Parkland) regarding Couche-Tard's acquisition of all issued and outstanding shares of CST Brands Inc (CST) and the subsequent sale of the majority of CST's Canadian assets from Couche-Tard to Parkland. CST was involved in retail fuel and related businesses in eastern Canada and parts of the United States. The Bureau focused its review on the market for the retail sale of gasoline, and determined that the relevant geographic markets were local in nature. The Bureau assessed whether the transactions were likely to substantially lessen competition in these local markets through unilateral or coordinated effects, finding that each transaction raised the risk of unilateral price increases and coordination between retail gas stations in a number of local markets. The Bureau's approach resulted in divestitures in several markets despite the fact that the parties' combined post-merger market share did not exceed the 35 per cent unilateral effects threshold set out in the Bureau's 'Merger Enforcement Guidelines'. As the Bureau determined that both transactions would likely result in a substantial lessening of competition in several markets, the consent agreements required Couche-Tard to sell 366 retail gasoline sites and contracts to Parkland, Parkland to sell nine dealer contracts to a third party, and Parkland to divest its own assets in two local markets where the Bureau concluded that Parkland was not a suitable purchaser.11
On 20 March 2016, Sherwin-Williams Company (Sherwin Williams) announced a proposed acquisition of Valspar Corporation (Valspar), valued at approximately US$11.3 billion dollars. Sherwin-Williams and Valspar were both global companies that developed, produced, distributed and sold architectural and industrial paint coatings to consumers. The Bureau stated that the parties were close competitors in the supply of industrial wood coatings used by original equipment manufacturers. The Bureau determined that industrial wood coating customers were segmented into those that required customised, small-batch shipments and those that required a long-term supply of large-batch shipments. While the Bureau found that, post-merger, there would be effective remaining competition for customers in Canada sourcing small-batch shipments, the transaction was likely to substantially lessen competition for customers requiring a long-term supply of large-batch shipments. The parties entered into a consent agreement to address the Bureau's concerns, and agreed that Valspar's Canadian and US assets used primarily for the supply of industrial wood coatings in Canada would be sold to Axalta Coating Systems, a new entrant to the market.12
On 27 June 2017, the Bureau entered into a consent agreement with E.I. du Pont de Nemours and Company (Dupont) and the Dow Chemical Company (Dow), regarding the proposed merger between the two parties. The Bureau was concerned about this merger due to the potential loss of rivalry in agricultural product markets in western Canada (broadleaf herbicides for cereal crops and pre-seed burn-off additives for cereal crops), and specialised plastics markets in North America (acid copolymers and ionomers). The Bureau was particularly concerned about the effect on innovation in the agricultural sector. In the course of its review, the Bureau found that this merger concerned two close and principal competitors in various product markets and was likely to result in the loss of innovation rivalry. The Bureau also concluded that these effects would likely result in higher prices for both farmers and packaging firms and reduce the incentive to innovate in respect of product offerings. To address these concerns, the consent agreement required DuPont to divest its global cereal herbicides to FMC Corporation and sell its global acid copolymer and ionomer business to SK Global Chemical Co Ltd.13 The Bureau concluded that both buyers could compete effectively and support innovation in Canada.14
BCE Inc/Manitoba Telecom Services
On 15 February 2017, the Bureau announced that a consent agreement had been reached regarding BCE Inc's (Bell) proposed acquisition of Manitoba Telecom Services (MTS) valued at C$3.9 billion. Bell had also entered into a separate agreement with TELUS Corporation (TELUS) to sell TELUS a number of MTS' post-paid wireless subscribers and assign TELUS one-third of the MTS dealer locations. The Bureau was concerned about the effects of the merger on mobile wireless services in Manitoba, as both Bell and MTS operated in that province. The Bureau's position was that, as a result of coordinated behaviour between Bell, TELUS and Rogers, wireless prices in Canada were higher in regions where there was not a strong regional competitor. As MTS was the incumbent mobile wireless carrier in Manitoba with a strong position in the market, the Bureau found that the proposed transaction would lead to a unilateral exercise of market power and a substantial increase in the price for mobile wireless plans. To address this concern, Bell agreed to complete its agreement with TELUS and to divest assets and provide transitional services to Xplornet, a carrier of rural broadband internet through fixed wireless and satellite networks throughout Canada with plans to enter into the mobile wireless market in Manitoba.15
On 14 February 2017, the Bureau issued a NAL indicating that the Commissioner did not intend to make an application under Section 92 of the Act with respect to the proposed acquisition of Syngenta AG (Syngenta) by China National Chemical Corp (ChemChina). ChemChina owns ADAMA Agricultural Solutions (ADAMA), which, like Syngenta, supplied pesticides for crops and turf in Canada. At the time of the proposed acquisition, ADAMA was a recent entrant to the Canadian market, offering off-patent products without operating any research facilities, whereas Syngenta operated a number of research facilities across Canada. Through an investigation of the parties' crop and turf pesticides, the Bureau found that there was rivalry between Syngenta's branded and ADAMA's generic products, but concluded that the parties' products were not close substitutes and that there would be sufficient remaining competition in the market post-transaction.16
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$50,000.17 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.18
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$92 million.19 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).20
Certain classes of transactions are exempted from notification, including transactions where all parties are affiliates of each other,21 an acquisition of real property or goods in the ordinary course of business,22 acquisitions of share interests in a combination for the sole purpose of underwriting the share or interest,23 acquisitions of collateral or receivables made by a creditor pursuant to a good faith credit transaction in the ordinary course of business,24 certain joint ventures,25 and where the Commissioner has issued an advance ruling certificate (ARC).26
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),27 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 an SIR if it determines that further information is required to complete its review.28 This power is discretionary and not subject to oversight by the Competition Tribunal (Tribunal) or courts.
The issuance of an 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).29
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.30
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.31
Compliance with these requests may reduce the scope of, or potentially even the need for, an 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 an 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 an 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 an 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 an SIR at a maximum of 30 individuals.32 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 an SIR. If a party objects to the scope of an 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 court33 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. 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 an SIR is issued, the time frame is extended to 30 days from the date of compliance with the SIR.
iv OTHER STRATEGIC CONSIDERATIONS
On 1 May 2018, legislative amendments to the Act came into effect that broadened the Act's affiliation rules. Previously, the affiliation rules were asymmetrical as between corporate and non-corporate entities, such as partnerships, sole proprietorships and trusts; two corporations could be considered affiliates under the Act, whereas a corporation and a non-corporate entity – or two non-corporate entities – would not be considered affiliates despite a functionally identical relationship. The amendments have eliminated the existing asymmetry by expanding the Act's definition of affiliation to treat corporate and non-corporate entities in the same manner. Affiliation plays an important role in determining: (1) whether a transaction is subject to notification (a pre-merger filing); and (2) the content of pre-merger notification filings (as customer and supplier information must be included for all relevant affiliates). While the revisions to the affiliation rules will reduce the number of 'technical filings' resulting from internal reorganisations involving partnerships that would now be exempt, these revisions are also likely to result in some transactions that were not notifiable under the previous affiliation rules becoming notifiable in the future.
Effective 31 May 2018, former Assistant Crown Attorney Matthew Boswell was appointed as the new Interim Commissioner of Competition. Mr Boswell joined the Competition 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, and will hold the title for up to one year until a permanent Commissioner is appointed.
v OUTLOOK & 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.34 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 Julia Potter is an associate in the Competition, Antitrust and Foreign Investment Group at Blake, Cassels & Graydon LLP.
2 Competition Bureau, 'Speaking Notes for Melanie L. Aitken, Interim Commissioner of Competition' (12 May 2009); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03066.html.
3 Competition Bureau, 'Pre-Merger Notification Interpretation Guideline Number 7: Creditor Acquisitions (SubSection 108(1) and Paragraph 111(d) of the Act)' (26 October 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04309.html.
4 Competition Bureau, 'Backgrounder: Commissioner of Competition's Decision Regarding Bell's Proposed Acquisition of Historia and Séries+' (31 May 2018); available online at: https://www.canada.ca/en/competition-bureau/news/2018/05/backgrounder-commissioner-of-competitions-
5 Competition Bureau, 'Competition and Innovation Safeguarded in the Canadian Agricultural Sector'(30 May 2018); available online at: https://www.canada.ca/en/competition-bureau/news/2018/05/competition-and-innovation-safeguarded-in-the-canadian-agricultural-sector.html.
6 Competition Bureau, 'Competition Bureau Statement Regarding METRO Inc.'s Acquisition of The Jean Coutu (PJC) Group Inc.' (16 May 2018); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04363.html.
7 Metro, 'Press Releases 2018: METRO Receives Competition Bureau Authorization to Proceed with the Acquisition of the Jean Coutu Group Inc.' (11 May 2018); available online at: https://corpo.metro.ca/en/media/newsroom/2018/METRO-competition-bureau-authorization-acquisition-jean-coutu.html.
8 Competition Bureau, 'Competition Bureau Statement Regarding the Acquisition by Abbott of Alere' (28 September 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04305.html.
9 Competition Bureau, 'Competition Bureau Statement Regarding Superior Plus LP's Proposed Acquisition of Canwest Propane from Gibson Energy ULC' (28 September 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04305.html.
10 Competition Bureau, 'Competition Bureau Statement Regarding Proposed Merger between Agrium and Potash Corporation of Saskatchewan' (11 September 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04305.html.
11 Competition Bureau, 'Competition Bureau Statement Regarding Couche-Tard's Acquisition of CST and Divestiture of Certain Assets to Parkland' (6 July 2017); available online at:http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04252.html.
12 Competition Bureau, 'Competition Bureau Statement Regarding the Acquisition of Valspar by Sherwin-Williams' (26 May 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04244.html.
13 Competition Bureau, 'Competition Bureau Statement Regarding the Merger between Dow and DuPont' (27 June 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04247.html.
14 Competition Bureau, 'Competition and Innovation are Preserved Following Major Agricultural Merger' (27 June 2017); available online at: https://www.canada.ca/en/competition-bureau/news/2017/06/competition_and_innovationarepreservedfollowingmajoragricultural.html.
15 Competition Bureau, 'Competition Bureau Statement Regarding Bell's acquisition of MTS' (15 February 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04200.html.
16 Competition Bureau, 'Competition Bureau Statement Regarding the Proposed Acquisition of Syngenta by ChemChina' (14 February 2017); available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04197.html.
17 Section 65(2) of the Act.
18 Section 123.1 of the Act.
19 This threshold is subject to adjustment for inflation, and annual adjustments are published in the Canada Gazette. C$92 million is the applicable threshold as of 2018.
20 Section 110(3)(b) of the Act.
21 Section 113(a) of the Act.
22 Section 111(a) of the Act.
23 Section 111(b) of the Act.
24 Section 111(d) of the Act.
25 Section 112 of the Act.
26 Section 113(b) of the Act.
27 In hostile transactions, the 30-day waiting period begins to run when the offering party files a notification. A target company must still file a notification within 10 days of receiving notice from the Bureau to do so. In this way, a target cannot extend the timing of the waiting period by holding up its notification.
28 Section 114(2) of the Act.
29 Exceptions include situations where the transaction involves a hostile bid, where the parties receive a waiver that terminates the second statutory waiting period, and where the parties conclude a consent agreement with the Commissioner.
30 Section 100 of the Act. The Tribunal may only grant such an order in the limited circumstances set out in Paragraphs 101(1)(a) and 101(1)(b) of the Act.
31 Competition Bureau, 'Merger Review Process Guidelines' (8 September 2015) at Section 2; available online at: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/merger-review-process-2015-e.pdf/$FILE/merger-review-process-2015-e.pdf.
32 Ibid, at Section 3.4.2.
33 Sub-Section 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.
34 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).