Canada: Competition Bureau Successful In B.C. Landfill Merger Challenge

The Competition Tribunal recently ruled that the acquisition of Complete Environmental Inc. (Complete) by CCS Corporation (CCS) would lead to a substantial prevention of competition in the market for the disposal of hazardous waste in northeastern British Columbia. In order to mitigate the negative competitive effects of the merger, the Tribunal has ordered CCS to divest the Babkirk hazardous waste landfill site. The details of the Tribunal's Reasons For Order and Order (the Order) were publicly released on June 15, 2012.

The Tribunal's decision reinforces three key premises:

  • as in cases involving a merger between two existing competitors, the existence of barriers to entry is a critical factor in assessing whether a merger between an existing firm and its prospective competitor is likely to prevent competition substantially;
  • the efficiencies defence is available only in cases where the efficiencies from the merger (the extent of which must be proven by the merging parties) are likely to be greater than and offset any anticompetitive effects of the merger, which must be quantified by the Commissioner in her case in chief; and
  • while dissolution is an available remedy for completed mergers, it will not be accepted by the Tribunal if it is found to be intrusive, overbroad and unlikely to ensure timely entry.

On January 26, 2011, the Commissioner of Competition brought an application challenging the completed acquisition by CCS of Complete and its proposed Babkirk hazardous waste landfill site. The Commissioner's application alleged that Complete was poised to enter the market for the disposal of hazardous waste served by CCS. Please see our January 2011 Blakes Bulletin for more information on the facts of this case.

This matter marks the first merger challenge since 2005 and is significant in part because the transaction was not notifiable and had already been completed. Regardless of whether a merger triggers a pre-merger notification requirement under the Competition Act (Act), mergers may be challenged by the Commissioner for up to one year after their completion. This case highlights the Bureau's increased focus on identifying and reviewing non-notifiable transactions, even where there might not be a significant national impact.

Prevention of Competition

Because CCS operated the only two secure landfills for hazardous waste in northeastern British Columbia, the Tribunal concluded that CCS is a monopolist in a market where effective entry would be substantially delayed due to the length of time required for site selection, regulatory approvals and construction of a secure landfill, as well as the risk and uncertainty associated with new entry and sunk costs that are unrecoverable in the event of failure.

The Tribunal took an analytical approach to assessing whether the merger prevented competition substantially and, to this end, made reference to a number of CCS' internal documents. A selection of these documents outlined the potential consequences that would result from an independent Babkirk hazardous waste landfill site opening in competition with CCS, including a potential price war and the likelihood of a substantial price drop in the geographic market at issue. The Tribunal determined that these statements supported the proposition that the merger likely prevented competition substantially.

Efficiencies Defence

The Act provides an express efficiencies defence to anticompetitive mergers, which applies to cases where the efficiencies from the merger are likely to be greater than and offset any effects of the prevention or lessening of competition. The Commissioner bears the burden of proving the extent of the quantifiable and qualitative anticompetitive effects of the merger, while the respondents bear the burden on the ultimate issue, namely that the cognizable efficiencies would be likely to offset those effects.

The Tribunal acknowledged the Commissioner's assertion that the Act and jurisprudence do not dictate how she must meet her burden, but affirmed that in future cases, the Commissioner will be expected to provide, in her case in chief, estimates of market elasticity and the merged entity's own-price elasticity of demand. Where such data cannot be obtained, the Commissioner will be required, at a minimum, to provide supported rough estimates of those effects.

Although the Commissioner failed to meet her burden of quantifying the effects in this case, the Tribunal found that CCS was not prejudiced by that failure because it also failed to prove the "offset" element of the defence. The Tribunal noted that the terms "greater than" and "offset" each contemplate both quantifiable and qualitative efficiencies. It found that other qualitative factors –e.g., competition between CCS and an independent Babkirk would have led to important non-price benefits to waste generators in the form of "value propositions" that would have provided customers with a lower total cost for waste services, and lower tipping fees would have induced waste generators to more actively clean up legacy sites – resulted in anticompetitive effects that could not be offset by merger efficiencies proven by CCS.


The case is also notable because the Commissioner sought dissolution rather than divestiture as the primary remedy and, in this regard, named the shareholders of Complete as defendants. On November 3, 2011, the Tribunal dismissed a motion for summary disposition filed by the vendor shareholders, which confirmed that dissolution is an available remedy for completed transactions.

The Tribunal ultimately decided that dissolution was intrusive, overbroad in this case and would not lead to a timely opening of the Babkirk facility. This was due, in part, to its conclusions that dissolution would cause hardship to the vendor shareholders and would negatively impact Complete's other businesses, owing to changes in equipment and personnel following the sale of Babkirk. The Tribunal determined that the vendor shareholders did not intend to operate the Babkirk landfill site and that the Commissioner thus failed to prove her case against them and the reason for which she named them as parties to the proceeding. She was found liable for their costs in this regard.

The Tribunal concluded that divestiture was an available and effective remedy, and would ensure a timely sale of Babkirk. Moreover, divestiture assures certainty of the timing of the sale and an approved purchaser that will ultimately be more likely to effectively compete in the market.

Importance for Merger Planning
The Tribunal's decision underscores a number of considerations that parties contemplating a transaction should keep in mind, including the following:

  • Regardless of whether a merger triggers a premerger notification requirement under Part IX of the Act, mergers may be challenged by the Bureau for up to one year after their completion. As such, substantive due diligence is critical in mergers between competitors and between suppliers and customers, even in circumstances where formal advance notice need not be given to the Bureau.
  • While it remains to be seen in what circumstances the Tribunal will be willing to order dissolution, its confirmation that dissolution is an available remedy for completed mergers should cause parties to think creatively about the allocation of post-closing antitrust risk, particularly for mergers that are not notifiable under the Act.
  • Parties to a merger should be aware of the importance of documents in the Bureau's review of mergers, as a review of the parties' internal documents can affect both the length and outcome of the Bureau's assessment of the transaction and the Tribunal's decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.