Originally published in Blakes Bulletin on Competition,
Antitrust & Foreign Investment, January 2012
On January 11, 2012, the Canadian Competition Bureau (Bureau)
revised its Merger Review Process Guidelines (Guidelines).
The Bureau first published these Guidelines in 2009 after
Parliament amended the Competition Act (Act) to introduce
the supplementary information request (SIR) process, thereby
implementing a two-stage merger review in Canada.
The Bureau can issue an SIR to parties to a proposed transaction
when their transaction exceeds the pre-merger notification
thresholds set out at Part IX of the Act. Parties subject to Part
IX are prohibited from completing the transaction until the expiry
or waiver of an initial 30-day waiting period. When, however, the
Bureau issues an SIR, absent Bureau clearance the parties are
prohibited from completing the transaction until 30 days after they
have complied with the SIR (in the case of a hostile transaction,
timing is governed by the bidder's compliance with the
The new Guidelines largely formalize the Bureau's recent
practices in respect of the information-gathering processes used
during merger review, particularly the SIR process. The changes
also appear to signal that the Bureau may intend to issue SIRs with
Among other changes in the revised Guidelines, the Bureau:
no longer commits to communicating preliminary views as soon as
reasonably possible, and now focuses instead on whether it can
obviate the need for an SIR in a particular case;
modifies the parameters for consultation both before and after
an SIR is issued (pre- and post-merger dialogue) by focusing
largely on identifying the sources of information at the
pre-issuance stage, while leaving discussion of the terms of
production (i.e., prioritizing certain questions, custodians and
information) to the post-issuance stage;
standardizes the practice of imposing a continuing production
or "refresh" requirement (typically, at 30 and 90 days
from the date of issuance of the SIR);
clarifies the circumstances when timing agreements may be used
as an alternative to an SIR (e.g., more appropriate where the
transaction does not meet the pre-merger notification thresholds
under Part IX);
confirms that it will no longer commit to a date for completing
its review of a transaction under a timing agreement; and
elaborates on its approach to information-gathering in the
context of a hostile transaction by (i) explaining that the Bureau
will issue an SIR to the target coupled with a timing agreement or
section 11 court order to obtain information relevant to its
assessment of a proposed transaction, and (ii) reiterating the
position in its Hostile Transactions Interpretation Guideline
Number 2 that where the transaction is no longer hostile at the
time the bidder certifies completeness with its SIR, the second,
30-day waiting period will not commence unless and until the target
certifies completeness with its SIR.
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guide to the subject matter. Specialist advice should be sought
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