Amendments to the Notifiable Transactions Regulations
came into force on February 2, 2010. These amendments reflect the
significant changes to the Competition Act that took
effect in March 2009 and that moved Canada's competition laws
much closer to those of the US with respect to merger review.
Under the previous merger review process, depending on the
complexity of the transaction (as it relates to competition),
merging parties elected between filing either a short-form filing
or long-form filing. The applicable statutory waiting period was 14
days when a short form was filed, and 42 days when a long form was
filed. The Regulations were amended in light of the removal of the
short-form and long-form information requirements and the
introduction of a single notification form for all transactions
that must be notified to the Competition Bureau. The initial
waiting period for the new notification form is now 30 days, and
the Competition Bureau can extend the waiting period by issuing a
request for supplementary information (in which case the waiting
period is extended to 30 days beyond the time required for the
parties to respond to the request for information and
The prescribed information under the revised Regulations
includes the previous short-form information requirements,
all documents prepared or received by an officer or director
analyzing the proposed transaction with respect to market shares,
competition, competitors, markets, and potential for sales growth
or expansion into new products or geographic regions;
a copy of each legal document, or the most recent draft if not
yet executed, that is to be used to implement the proposed
a list of the foreign competition or antitrust authorities that
have been notified of the proposed transaction by the parties, and
the date on which each authority was notified; and
the total annual volume or dollar value of purchases from, and
sales to, all suppliers and customers for each principal category
The requirement to provide documents analyzing the impact of the
proposed transaction used to only apply for complex transactions
where parties decided to file a long-form filing. This requirement,
which now applies to all transactions, can be onerous because it
requires a search of the records (paper and electronic —
including e-mails) of officers and directors (as they are to be
defined in interpretation guidelines) of the parties and their
affiliates. This means that for all deals requiring notification
under the Act, parties must search for and provide these
types of documents to the Competition Bureau.
The amendments to the Regulations also include:
corrections to outdated references to sections of the
directions on how to calculate certain asset and revenue
amounts for amalgamations; and
a mechanism to facilitate the electronic submission of certain
McCarthy Tétrault Notes
The most significant change from these amendments is the
requirement to produce documents analyzing the impact of the
proposed transaction for all notifiable transactions. If a
notifiable transaction is also being reviewed by US authorities,
parties will be able to coordinate their collection efforts because
this requirement is similar to what must be filed in the US under
The Hart-Scott-Rodino Antitrust Improvements Act of 1976
(also known as "4(c) documents"). However, the new form
is more burdensome for parties to domestic transactions or
international transactions that are not notifiable in the US.
Companies and their external advisors should be mindful that all
documents prepared or received by an officer or director that
analyze the impact of a proposed transaction on competition and
markets (such as Board presentations, consultants' analyses and
other formal analysis, but also informal writings including e-mails
and handwritten notes) will have to be submitted to the Competition
Bureau if the transaction is notifiable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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