The Competition Bureau (Bureau) announced its intention to
publish monthly reports of concluded merger reviews. In some cases,
particularly where the Bureau is approached on a confidential
basis, such reports could raise strategic issues for parties to a
On February 6, as part of its efforts to increase transparency
in the merger review process, the Bureau announced that it would
begin publishing monthly reports of concluded merger reviews. The
first report will be published in early March, and further reports
will be made available at the beginning of each month thereafter.
The monthly report will contain a list of merger reviews concluded
in the prior month where either a mandatory pre-merger notification
or a request for an Advance Ruling Certificate (ARC) was made. The
report will identify the parties to the transaction, and provide
information with respect to the industry sector involved and the
outcome of the Bureau's review; namely whether the Bureau
issued an ARC or a "no-action letter," or whether a
consent agreement or an application was filed with the Competition
As mentioned above, in some cases, information published in the
monthly reports could raise strategic issues for merging parties,
particularly where a proposed transaction, or the fact that it was
reviewed by the Bureau, has not been made public. For example, in
the case of a hostile take-over bid where the bid has not yet been
announced, the transaction may have been cleared by the Bureau
without the need for market contacts. Publication in the merger
registry in such case would be disclosing confidential
Earlier this year, the National Competition Law Section of the
Canadian Bar Association (CBA) expressed concerns in relation to
the Bureau's decision to publish monthly merger reports. In a
letter to the Bureau, the CBA noted that such disclosure could
raise issues as to whether, absent express authorization of the
parties, the publication of such information would be in line with
the statutory confidentiality protections provided under the
provisions of the Competition Act (Act). In
connection to a merger review, section 29 of the Act
establishes a statutory confidentiality scheme which specifically
protects the fact that a notification has been made and any
information provided to the Bureau in respect of a proposed
transaction. Although the Commissioner of Competition is allowed to
disclose confidential information where the disclosure is deemed to
be necessary for the "administration or enforcement" of
the Act, the CBA noted that the communication of the results of the
Bureau's reviews in the monthly reports would not be captured
under this exception and, therefore, express authorization of the
parties to a proposed transaction should be required in order to
comply with the confidentiality provisions of the Act.
McCarthy Tétrault Notes
While greater transparency in merger review process is welcome,
the implementation of a merger registry does not appear, at this
time, to give insight into the analytic framework of the Bureau
with respect to merger review. It will be interesting to see
whether the Bureau will respond to the concerns expressed by the
CBA in relation to the publication of these reports, as well as any
legal challenges from merging parties that may arise in relation to
the disclosure of confidential information provided to the Bureau
in relation to a merger review.
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