Canada: Merger Review

An extract from the 2011 Antitrust Review of the Americas - a www.GlobalCompetitionReview.com special report.

This chapter sets out the structure and practice for assessing merger review under the Canadian Competition Act. Similar to other competition regimes, the fundamental framework of analysis centres on whether a merger will, or is likely to, result in a substantial prevention or lessening of competition (SPLC). We also discuss the enforcement approach taken to merger review by the Competition Bureau (Bureau). Lastly, the chapter examines issues related to challenges by the commissioner of competition (commissioner) and potential remedies when issues arise.

Recent amendments to the Competition Act1 have introduced a new merger review process, including a US-style second request process. The substantive review of mergers, however, remains essentially unchanged in Canada.

The Bureau has jurisdiction to review a broad variety of transactions and commercial arrangements as 'mergers'. Specifically, section 91 of the Competition Act defines a merger as 'the acquisition or establishment, direct or indirect, by one or more persons, whether by purchase or lease of shares or assets, by amalgamation or by combination or otherwise, of control over or significant interest in the whole or part of a business of a competitor, supplier, customer or other person.' If it is found that a merger prevents or lessens, or is likely to prevent or lessen, competition substantially, the Competition Tribunal (Tribunal) may, on application by the commissioner, issue an order dissolving or blocking the merger or ordering the divestiture or rescission of all or part of the acquired business.

In the course of its review to determine whether a transaction will likely result in a SPLC, the Bureau obtains its analytical information from several sources. It will receive information when the merging parties file notification forms2 and advance ruling certificate (ARC) requests.3 In a small number of cases, the Bureau also seeks further information through a 'supplementary information request' (SIR), described in the chapter on 'Canada: Merger Notifications'.4 The Bureau may also seek a court order pursuant to section 11 of the Competition Act to compel a party to provide documents and information, although it has not relied on this provision to obtain information from the merging parties for transactions notified since the amendments were introduced.5

In reviewing all the information that it has collected from the parties, its own records, competitors, market sources, experts and other third parties, the Bureau must determine whether a proposed merger will result in a SPLC. As noted in the Bureau's Merger Enforcement Guidelines (MEGs),6 which provide merging parties general guidance on the Bureau's analytical approach to merger review, a SPLC 'results only from mergers that are likely to create, maintain or enhance the ability of the merged entity, unilaterally or in coordination with other firms, to exercise market power.' In the Superior Propane case, the Tribunal noted that 'what is necessary is evidence that a merger will create or enhance market power which ... is the ability to profitably influence price, quality, variety, service, advertising, innovation or other dimensions of competition'.7 The factors considered by the Bureau in determining the existence of a SPLC are discussed below.

The anti-competitive threshold

While market power can generally be assessed from the perspective of either the seller or buyer, the Bureau's enforcement guidelines focus on the seller's market power, defined as the ability of a single firm or group of firms to profitably maintain prices above the competitive level for a significant period of time; however, its analytical framework applies equally to purchasers.8

In considering whether the merged entity will have an ability to influence price materially, the Bureau will look at the likely magnitude, scope and duration of any anticipated price increase that may result from the merger. The SPLC will occur when the merged entity, unilaterally or in coordination with other firms, is able to sustain higher prices than would exist in the absence of the merger by diminishing existing competition or by hindering the development of future competition.

In the latter scenario, the Bureau will typically examine the type, scope and timing of the potential entry or expansion by either one of the merging parties. To this end, when reviewing a merger, the Bureau may treat the transaction as a 'prevent' case when the acquirer, the target or a potential competitor has entry or expansion plans that are shelved due to the merger.9 Examples of mergers that may result in the prevention of competition include an acquisition that otherwise prevents planned unilateral expansion by a merging party into new geographic markets or the introduction of new products or the acquisition of an increasingly vigorous competitor or potential entrant.

Market definition

Typically, the first step in the Bureau's review of a merger is to define the relevant product and geographic market(s) in which the merging parties operate.10 The underlying rationale is to identify a group of buyers that may face increased market power as a result of the proposed merger. In doing so, the Bureau is essentially trying to define the smallest group of products, including at least one product of the merging parties, and the smallest geographic area in which a hypothetical monopolist11 can impose and maintain a 5 per cent price increase for a period generally longer than one year.

The definition of the product market revolves around the characteristics of the products and buyers' ability or willingness to switch from one product to another in significant quantities in response to relative price changes.12 In determining which products, if any, are close substitutes, the Bureau may rely on statistical measures, where detailed price and quantity data are available. The Bureau may also look at indirect evidence of substitutability, including evidence from market participants and functional indicators such as end use, physical and technical characteristics, price relationships and relative price levels, as well as potential switching costs incurred by buyers.13 It is possible that products that are functional substitutes entail high switching costs and in practical terms are not substitutes for buyers. For example, if the cost of switching to a close functional substitute is higher than the hypothetical monopolist's 5 per cent price increase, the switching cost alone may be the determining factor in discouraging a buyer from substituting that new product.

Geographic market definition focuses on the buyers' ability or willingness to switch their purchases from one geographic location to another, in response to changes in relative prices. As with the product market definition, the Bureau will rely on functional indicators in determining whether geographic areas are considered to be close substitutes. The MEGs provide examples of such indicators, including specific characteristics of the product, transportation costs, price relationships and relative price levels, shipment patterns and conditions regarding foreign competition. Several price and nonprice factors can affect a buyer's ability or willingness to consider distant options.14 For example, non-price factors may include fragility or perishability of the relevant product, convenience, frequency of delivery and the reliability of service or delivery. Again, as in the case of product market definition, high switching costs incurred by buyers may also discourage substitution between geographic areas.

Market shares and concentration

The next step of the analysis involves the identification of participants in the relevant markets in order to determine whether significant vigorous competitors will remain in the market post-merger. The first step in the SPLC analysis involves determining the participants and remaining competitors' market shares and concentration levels to initially establish the potential significance of the impact of the merger on the market. Generally, participants include competitors who are current sellers of the relevant products but can also include potential competitors that could readily and profitably sell into the relevant markets without significant sunk cost investments and could effectively enter within one year. This response is often referred to as a 'supply response'. Typically, the Bureau will examine factors such as switching costs, a seller's ability to reposition its products or extend its product line, its excess capacity and applicable intellectual property rights. In the case of foreign sellers, the Bureau will also look at such matters as the existence of tariffs, fluctuation rates, import quotas or export constraints, domestic ownership restrictions and whether the industry is susceptible to supply interruptions from abroad.

Having identified participants in the relevant market, the Bureau will then calculate their respective market shares, relying on metrics that can consist of dollar sales, unit sales, capacity or, in certain natural resource industries, reserves. In selecting the appropriate market share metric, the Bureau will attempt to identify the sellers' future competitive significance.

Determining market share or concentration only provides a part of the larger picture. Indeed, section 92 of the Competition Act stipulates that a merger cannot be found to substantially prevent or lessen competition solely on the basis of market shares. Nevertheless, high market shares may serve as a warning sign and lead to a more indepth analysis of the merger by Bureau officials.

In order to avoid needlessly delaying mergers by conducting an in-depth investigation of every single transaction, the Bureau has outlined certain thresholds to identify mergers that are unlikely to have anti-competitive consequences. Typically, the commissioner will not challenge a merger on the basis of a concern related to the unilateral exercise of market power when the post-merger share of the merged entity is less than 35 per cent. Similarly, in the case of a concern related to a coordinated exercise of market power by the remaining competitors, if the post-merger share accounted for by the four largest firms in the market would be less than 65 per cent, or if the post-merger market share of the merged entity itself would be less than 10 per cent, the commissioner will typically not challenge the proposed merger.

These thresholds are not absolute benchmarks and should be considered with some caution. Conversely, mergers that exceed these thresholds are not automatically viewed as anti-competitive. In these cases, the Bureau will simply expand its analysis and examine other factors to determine whether the merger in question will result in a SPLC. In practice, many mergers with post-merger share exceeding 35 per cent are not ultimately challenged by the commissioner.

In addition to determining market share and concentration, the Bureau will examine their distribution across competitors and the extent to which market shares have varied over a significant period of time. Finally, the Bureau will also take into consideration the nature of the market and the impact of forthcoming change and innovation on the stability of existing market shares.

Anti-competitive effects

If the market share and concentration thresholds are exceeded or if the Bureau has information suggesting that there may be a SPLC as a result of the merger, it will conduct a competitive effects analysis, based on factors listed in section 93 of the Competition Act. This analysis typically focuses on unilateral and coordinated effects.

In a market with many sellers offering comparable products, a firm may be limited in its ability to profitably raise prices as buyers may be tempted to switch to substitute products. However, there may be situations where a firm will be able to exercise unilateral market power irrespective of how its competitors respond. In markets with differentiated products, a post-merger price increase may be profitable because a price increase by one of the merging parties will divert demand toward the other merging party. In markets where firms are distinguished based on capacity, a price increase is likely to be profitable in circumstances where the seller offering close substitutes has insufficient capacity to absorb the demand that would normally be diverted from the merged entity.

A merger may result in coordinated effects when a group of firms can profitably coordinate their behaviour. This usually occurs when individual firms can adjust their conduct in response to one another. Such behaviour can involve tacit or express understandings on price, service levels, allocation of customers or territories, or any other aspect of competition.15 Typically, the Bureau will examine whether market conditions will more effectively facilitate coordinated behaviour post-merger by assessing, for example, whether firms will be better able to detect and monitor deviations from coordinated efforts and how the merger changes the competitive dynamic in the market.

SPLC factors

The specific factors that the Bureau looks at pursuant to section 93 are briefly summarised below:

  • Foreign competition: The Bureau will examine the presence and viability of foreign competition to determine whether they are likely to counter increased market power of the merged entity.
  • Failing firm: The Bureau will consider whether one of the merging entities would fail if the merger were not to occur. A firm is considered to be failing if it is or is likely to become insolvent, to initiate voluntary bankruptcy proceedings or to be petitioned into bankruptcy or receivership.16 Before concluding that a merger involving a failing firm is not likely to result in a SPLC, the Bureau will look at other alternatives, including acquisition by a competitively preferable purchaser, retrenchment/ restructuring and liquidation.17
  • Substitutes: Consideration will be given to the availability of acceptable substitutes for the merging parties' products that are in the same geographic market as the merging parties and whether consumers have other means of supply.
  • Barriers to entry: In assessing whether entry by a potential competitor is effective or not, the Bureau will take a closer look at whether entry is likely, timely and sufficient in scale and scope. Its analysis will also take into consideration existing entry barriers that may affect the likelihood, timeliness and sufficiency of entry.18 These barriers may include regulatory impediments, significant sunk costs and other entry-deterring factors.
  • Remaining competitors: The Bureau will attempt to determine whether the collective influence of all sources of competition in the market will be able to constrain the exercise of market power by the merged entity acting unilaterally or in coordination with other market participants.
  • Elimination of a vigorous competitor: A firm that is a vigorous and effective competitor often plays an important role in pressuring other firms to compete harder. The competitive attributes and history of the target firm are assessed to determine whether the merger will likely result in the removal of a vigorous and effective competitor.
  • Innovation: The Bureau examines change and innovation in relation to: distribution, service, sales, marketing, packaging, buyer tastes, purchase patterns, firm structure, the regulatory environment and the economy as a whole. Where there is a great deal of change and innovation, it is less likely that any firm will be able to exercise market power for sustained periods of time.
  • Countervailing buying power: In circumstances where credible options are available to buyers, buyer concentration can prevent a price increase and make it difficult for sellers to exercise market power. Typically, a buyer will have such ability if it can, for example, switch to other sellers in a reasonable amount of time or the promise of substantial orders can induce the expansion of an existing seller or sponsor entry by a potential seller, or both. In such a scenario, the Bureau will assess whether one or more buyers have such a countervailing power to constrain the exercise of market power.

Efficiencies exception

Unlike the integrated analysis conducted in the United States and by the European Commission, the Bureau considers efficiencies separately, following its evaluation of whether a merger will result in a SPLC. This reflects the fact that the Canadian legislative framework contains an explicit efficiencies exception. Specifically, subsection 96(1) of the Competition Act allows for the clearance of an anticompetitive merger, where the efficiency gains brought about by the merger are greater than and offset the anti-competitive effects.19 The onus is on the parties to establish the gains in efficiency, while the commissioner bears the burden of establishing the anti-competitive effects of the merger.

The first step in the trade-off analysis consists of an assessment of all efficiency claims, including their nature, magnitude and likely realisation. The Bureau will pay close attention to gains in productive efficiency, such as savings associated with integrating new activities within the firm or product, plant level and multi-plant level savings in both variable and fixed costs, as well as gains in dynamic efficiency, such as the optimal introduction of new products or the improvement of product quality and service.

The second step in the trade-off analysis is to balance the efficiency gains against 'the effects of any prevention or lessening of competition that will result or is likely to result from the merger or proposed merger'.20 This entails the Bureau looking at all relevant price and non-price effects, including negative effects on allocative, productive and dynamic efficiencies, negative or socially adverse redistributive effects, and effects on service, quality and product choice. Further, the Bureau may also consider price and non-price effects in interrelated markets.

In weighing the efficiency gains against the anti-competitive effects, the Bureau normally applies the 'balancing weights' standard, where the increase in surplus from the efficiency gains is balanced against the deadweight loss resulting from the anti-competitive effects to which may be added some portion of the wealth transfer from consumers to producers that is considered socially adverse.21

Challenging a merger

If the Bureau finds that the merger or proposed merger is likely to result in a SPLC and there is no robust evidence of the efficiencies exception, the Bureau may apply to the Tribunal to challenge the merger or, alternatively, may negotiate remedies consensually with the merging parties in order to resolve its competition concerns. In circumstances where the commissioner is of the view that more time is needed to adequately analyse the competitive impact of a proposed merger, she may seek the agreement of the merging parties to delay the closing of the transaction. Otherwise, the commissioner may seek an interim injunction from the Tribunal pursuant to section 100 of the Competition Act, although this power has been used very rarely.

Following recent amendments to the Competition Act, the new Canadian merger review regime establishes an initial waiting period of 30 days following which the parties can close their transaction provided that the Bureau has not exercised its discretion to extend the waiting period by issuing a SIR.22 With the Bureau now having the power to possibly 'stop the clock', it is likely that section 100 orders will become even less relevant as a tool to provide the Bureau with additional time to review a merger.

If, following its review, the Bureau is of the view that the transaction would lead to a SPLC, and the commissioner and merging parties are unable to reach a settlement, it is open to the commissioner to challenge the proposed transaction pursuant to section 92 of the Competition Act. This is invariably followed by the commissioner bringing an application for an injunction under section 104, which may proceed on a contested or consensual basis. It is noteworthy that, unlike a section 100 injunction, a section 104 injunction is only available where the commissioner has made an application to the Tribunal pursuant to section 92 alleging that the proposed merger would result in a SPLC. To obtain such an order from the Tribunal, the commissioner must establish that there is a serious issue to be tried, that irreparable harm would be caused if injunctive relief is not granted and that the balance of convenience favours granting the injunction.

Remedies

As noted above, where the Bureau is concerned a merger or proposed merger is likely to result in a SPLC, it will attempt, where possible, to negotiate a remedy with the parties concerned. Such a remedy must restore competition to the point where it is no longer substantially less than it was pre-merger.23 While the Bureau has at its disposal a wide range of structural and behavioural remedies, it generally favours the former because, on balance, it believes that they are more effective.24 These preferences are outlined in an Information Bulletin on Merger Remedies in Canada, which provides the Bureau's current policy on merger remedies, general guidance on the objectives for remedial actions as well as general principles it applies when it seeks, designs and implements remedies.25

Typically, the Bureau is willing to consider three types of remedies. Structural remedies involve the divestiture of assets, which must be both viable and sufficient to eliminate a SPLC. The divestiture must occur in a timely manner, generally within three to six months,26 and the buyer must be independent and have both the ability and intention to be an effective competitor in the relevant market. Prior to the completion of the divestiture, the Bureau normally requires the merging parties to hold these assets separate, though in some instances is willing to simply require that the competitive viability of the assets be maintained.27

Second, the Bureau may also seek quasi-structural remedies. In such cases, the merged entity is allowed to retain ownership of the assets acquired in the merger, but must take certain actions that have structural implications for the marketplace, such as the removal of anti-competitive contract terms, the granting of non-discriminatory access rights to networks or the licensing of intellectual property.

Finally, the Bureau may seek behavioural remedies, though it rarely does so on a standalone basis. Rather it may seek combination remedies where a structural divestiture is combined with behavioural remedies. Common examples include:

  • short-term supply arrangements for the buyer of the assets to be divested, at a price defined to approximate direct costs;
  • the provision of technical assistance to help a buyer or licensee train employees in complex technologies, especially for those technologies related to intellectual property; and
  • codes of conduct, which can be readily monitored and expeditiously enforced by a third party, for example through binding arbitration procedures.

In 2007, the Bureau initiated a study of the effectiveness of past merger remedies and is in the process of reviewing 50 cases where remedies were implemented. In the course of its study it interviewed various market participants, with a view to assessing whether its remedies had the desired effect. It intends to complete the study this year, followed by the publication of its findings and recommendations. 28

It will be interesting to see the results of this study, particularly if they provide the grounds for changes to the Bureau's merger review practice. Certainly this study will be something to follow closely since any action taken on its findings, particularly in tandem with the introduction of the SIR process, could have a significant impact on deal planning and timing in Canada.

Footnotes

1 Competition Act, R SC, c C-34, as amended, hereinafter Competition Act.

2 The Notifiable Transactions Regulations were amended in February 2010 to reflect the recent amendments to the Competition Act. Significant changes include the introduction of a single notification form and the closer alignment of the form's wording with item 4(c) of the United States Notification and Report Form.

3 For more information on pre-merger notifications and AR C requests, please see the chapter 'Canada: Merger N otifications'.

4 A s of May 2010, only eight SIR s had been issued. I n some instances, the Bureau has been relying on voluntary information requests and entering into timing agreements with parties, rather than employing the more formal SIR process.

5 The Bureau has indicated that it may rely on section 11 in certain circumstances, for example, where a transaction is not notifiable or in the case of hostile transactions. See Merger R eview Process G uidelines, Competition Bureau, September 2009, footnote 4.

6 Merger E nforcement G uidelines, Competition Bureau, September 2004 (MEG s).

7 Canada (Commissioner of Competition) v Superior Propane Inc, [2000] CCTD N o. 15 at 258.

8 MEG s, supra note 6 at 2.3.

9 MEG s, supra note 6 at 2.11.

10 Ibid at 3.11.l.

11 The hypothetical monopolist approach seeks to identify relevant markets by asking, with regard to each product of the merging firms, whether a profit-maximising hypothetical monopolist of that product would be able to profitably impose a small but significant non-transitory price increase (SSNI P).

12 Canada (Commissioner of Competition) v Superior Propane Inc, [2000] CCTD N o. 15 at 49.

13 MEG s, supra note 6 at 3.15.

14 Ibid at 3.22.

15 MEG s,supra note 6 at 5.18.

16 Similar to other agencies around the world, the Bureau did not make any substantive change to its interpretation of this factor during the recent economic crisis.

17 Canada (Director of Investigation and Research) v Air Canada (1989), 27 CPR (3d) 476 (Comp Trib); Canada (Director of Investigation and Research) v Air Canada (1993), 49 CPR (3d) 7 (Comp Trib).

18 Canada (Director of Investigation and Research) v Laidlaw Waste Systems Ltd (1992), 40 CPR (3d) 289 (Comp Trib) at 331.

19 See Competition Bureau, Efficiencies in Merger Review, March 2009 for a detailed description of the Bureau's approach to efficiencies.

20 MEG s, supra note 6 at 8.18.

21 See Canada (Commissioner of Competition) v Superior Propane Inc, (August 30, 2000), CT-1998/002 (Competition Tribunal).

22 Upon the issuance of a SIR , the waiting period is suspended until a complete response has been submitted by the merging parties. Once the response to the SIR is submitted, a new 30-day period begins to run and the parties may close their transaction following its expiry.

23 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at paragraph 85.

24 Canada (Commissioner of Competition) v Canadian Waste Services Holding Inc, [2001] CCTD N o. 32, 15 CPR (4th) 5 (Comp Trib) at paragraph 110.

25 Information Bulletin on Merger Remedies in Canada, Competition Bureau, 22 September 2006.

26 Ibid at paragraph 33.

27 Ibid at paragraph 24.

28 Merger Review Performance Report, May 2010.

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