Copyright 2010, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Competition, Antitrust & Foreign Investment, October 2010
Bureau Policies Updated
On October 22, 2010, the Bureau released three documents that provide updated guidance on its policies regarding the timing and procedural details of merger reviews, specifically:
- Fees and Service Standards Policy for Mergers and Merger-Related Matters (Merger Policy);
- Fees and Service Standards Handbook for Mergers and Merger-Related Matters (Merger Handbook); and
- Procedures Guide for Notifiable Transactions and Advance Ruling Certificates under the Competition Act (Procedures Guide).
Notable updates include:
- The introduction of a "pull and re-file" concept in respect of merger notifications, consistent with the practice of antitrust authorities in the U.S., that allows parties to withdraw and re-submit a filing in order to re-start the Canadian merger review waiting period or to supplement or change the information in the filing for completeness or accuracy, where certain conditions are met;
- Revised non-statutory service standards for merger reviews,
reflecting the time periods within which the Bureau endeavours to
complete its substantive review of a proposed transaction. It
should be noted that these service standards are inconsistent with
the statutory waiting period, and parties remain legally entitled
to complete a transaction irrespective of whether the service
standard has run:
- Previously, the Bureau had three complexity designations for its merger reviews: "non-complex", "complex" and "very complex", which respectively carried a 14-day, 10-week, and five-month service standard time-frame;
- The new service standards retain the "noncomplex"
designation (as well as its associated 14-day time-frame for
review) but consolidate the previous "complex" and
"very complex" service standards into one
"complex" designation with a shorter time period for
review (45 days or, if a Supplemental Information Request is
issued, 30 days from the date of compliance);
- Updated guidance as to the circumstances in which a proposed transaction will be designated as "noncomplex" versus "complex" (based on a number of factors, including post-merger market shares and industry concentration, the degree of competitive overlap between the parties, and likelihood of credible complaints);
- An updated list of information required in order to begin the relevant service standard period, reflecting the Bureau's current practice. The revised Merger Handbook also formalizes the Bureau's practice in cross-border transactions of encouraging parties to provide foreign agencies that are also reviewing the merger with waivers permitting them to share information with the Bureau.
- The timing of electronic filings. The Procedures Guide now specifies that the Bureau will treat any notification or ARC request filing that is received after 5 p.m. EST on a business day, or at any time on a holiday, as having been filed on the next business day. This represents a significant change from the Bureau's current practice of accepting electronic filings that are received before midnight on a business day as having been filed on that business day rather than the following business day.
The updates to the Merger Policy confirm that the fee for submitting a merger filing and/or request for an advance ruling certificate will remain unchanged from the current fee, at C$50,000.
The policies and procedures contained in these three documents will come into effect on November 1, 2010.
CREA: Consent Agreement Finalized
On October 24, 2010, the Competition Bureau announced that members of the Canadian Real Estate Association (CREA) ratified the Consent Agreement with the Bureau, resolving the Commissioner of Competition's concerns that the MLS rules imposed by CREA constitute an abuse of CREA's dominant position in the provision of residential real estate services. Among other things, the Consent Agreement prohibits CREA from adopting, maintaining or enforcing any rules that discriminate against brokers who choose to provide only listing services on MLS or fee-forservice arrangements. These provisions are intended to provide more flexibility to real estate agents to offer innovative service and pricing options to customers. The Consent Agreement, which has a 10-year term, has been registered with the Competition Tribunal. For additional details regarding the Commissioner's proceedings against CREA, please see our October 2010 Blakes Bulletin: Competition Bureau Update on MEGs Consultation, Leniency Bulletin and CREA Settlement.
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