On July 11, 2013, the Supreme Court of Canada granted leave to
appeal in Tervita Corporation v. Commissioner of
Competition. Five months earlier, the Federal Court of
Appeal (the "FCA") upheld the order of the Competition
Tribunal (the "Tribunal") requiring Tervita (formerly
known as CCS Corporation) to divest the Babkirk hazardous waste
landfill site that it obtained through its acquisition of Complete
Environmental Inc. The Commissioner of Competition had applied to
the Tribunal pursuant to section 92 of the Act, which grants
jurisdiction to the Tribunal to intervene where "a merger or
proposed merger prevents or lessens, or is likely to prevent or
lessen, competition substantially".
At issue in the FCA was, among other things, the proper time
frame in determining whether a merger results in a substantial
prevention of competition and the proper methodology for applying
the efficiency defence under the Act. In its reasons, the FCA
endorsed a forward-looking approach to merger review. It also
clarified the proper methodology for applying the
"efficiencies defence" under the Act. For more
information, please see our previous
bulletin analyzing the Federal Court of Appeal's
Issues before the Supreme Court of Canada
The matters for which leave to appeal was sought, and granted,
is the proper legal test to determine when a merger gives rise to a
substantial prevention of competition under section 92 of the Act
and the proper approach to the efficiencies defence under section
96 of the Act. The Supreme Court of Canada is expected to provide
guidance regarding the following specific issues raised by the
the proper legal test to determine when a merger gives rise to
a substantial prevention of competition under section 92 of the
Act, and to what extent, if any, the Tribunal is permitted to
consider possible future events when it finds that there is no
present competitive constraint being removed from the market;
the proper approach to the efficiencies defence under section
96 of the Act and, and in that regard, on what basis can real,
quantified efficiencies (such as the Order Implementation
Efficiencies) be rejected, as well as the proper approach to the
A date for the hearing of the appeal has not been
Baldanza is Chair of Fasken Martineau's Antitrust/Competition
& Marketing Law Group and a Partner of the firm. Tony Di
Domenico is a Partner in Fasken Martineau's Litigation and
Antitrust/Competition & Marketing Law groups.
Notice of Application for Leave to Appeal to the Supreme Court of
Canada, Tervita Corporation, Complete Environmental Inc., and
Babkirk Land Services Inc.
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.
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