On May 29, 2012, the Competition Tribunal
ruled in favour of the Commissioner of Competition, and ordered
CCS Corporation to divest a hazardous waste landfill site, the
acquisition of which the Commissioner had alleged would result in a
substantial prevention of competition in the market for hazardous
waste disposal in northeastern British Columbia. This was the first
contested challenge to a merger by the Commissioner since 2005.
Complete Environmental had received regulatory approval to open
the Babkirk landfill in February 2010, and had not yet started
construction when CCS Corporation acquired the site. CCS already
operates the only two operational secure landfills for hazardous
waste in British Columbia. The
Commissioner alleged that, through the acquisition of the
Babkirk landfill, CCS had prevented the entry of a potential
competitor, thereby substantially preventing competition.
While the transaction was not subject to pre-merger notification
under the Competition Act, in Canada the Commissioner has
jurisdiction to challenge even non-notifiable transactions. Such
challenges can be launched for up to one year after closing.
Despite not being notified, the Commissioner learned of the
transaction prior to closing, and informed the parties of her
objection to the transaction.
Of note, in her application, the Commissioner had sought
dissolution as a possible remedy, which the respondents moved to
challenge in November 2011 on the basis that dissolution was an
overly broad and punitive measure. In the hearing on that
motion Justice Simpson refused to grant summary disposition,
and confirmed the possibility of dissolution as an effective
remedy, concluding that it would be for the Tribunal to weigh the
evidence for and against divestiture versus dissolution as
potential remedies. The release of the Tribunal's decision in
this case is still pending.
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