Canada: Merger Settlements In Canada: Recent Developments

The Canadian Competition Act (the "Act") authorizes the Commissioner of Competition (the "Commissioner"), who heads the Competition Bureau (the "Bureau"), to challenge merger transactions that are likely to "prevent or lessen competition substantially" in a relevant market. Applications to challenge mergers are brought by the Commissioner before the Competition Tribunal (the "Tribunal"), a hybrid administrative body comprised of both judges and non-judicial members. The Tribunal may issue orders preventing a merger from being consummated, dissolving the merger or requiring the disposition of specific assets or shares. With the consent of the parties, the Tribunal may also issue orders requiring that "any other action" be taken in respect of a merger by the person against whom the order is directed.¹

The Commissioner has only rarely exercised her authority to challenge merger transactions before the Tribunal. Indeed, in the approximately 19 years since the Act’s merger provisions have been in place, only four mergers have been the subject of contested applications. To the extent that issues are raised by a merger, they are generally resolved through some form of negotiated settlement between the Commissioner and the merging parties. By virtue of amendments to the Act enacted in 2002, most of these merger settlements are now concluded in the form of a "consent agreement" that is registered with the Tribunal.

Given the foregoing, it is important for parties considering acquisitions in Canada to be aware of the law and policies governing merger settlements with the Commissioner. In this article, we provide a brief overview of the merger settlement process in Canada. We then discuss two recent cases in which consent agreements with the Bureau have been challenged and the implications for future merger settlements in Canada.

Merger settlements with the Commissioner are generally concluded in one of two ways; either through formal "consent agreements" or informal "undertakings." As described below, recent amendments to the Act have meant that consent agreements are now far more prevalent in use than undertakings.

The Act was amended in June 2002 to permit the Commissioner and the parties to a merger or proposed merger to register a negotiated consent agreement with the Tribunal. Upon registration, a consent agreement is deemed to have the same force and effect as if it were an order of the Tribunal.²

Prior to these amendments, the Tribunal was required to review and approve a proposed settlement before an order could be issued embodying its terms. This process often involved lengthy hearings with third-party intervenors opposing or seeking changes to the settlement. It sometimes even resulted in the Tribunal rejecting the settlement on the grounds that it would not be sufficient or effective in eliminating the substantial prevention or lessening of competition at issue.³

The consent order process was substantially revised in 2002 to reduce the uncertainty of result caused by the Tribunal’s review of merger (and other) settlements. Under the new consent agreement registration process, the Tribunal’s oversight role has been largely eliminated. In the normal course, the Tribunal will have no say in approving a registered consent agreement.

There are only two opportunities now remaining for Tribunal involvement in the consent agreement process. The Tribunal may obtain jurisdiction over a registered consent agreement where the Commissioner, the person who consented to the agreement or the person against whom the order was made applies for an order rescinding or varying the agreement on the basis of a change in circumstances. Specifically, the applicant must satisfy the Tribunal that "the circumstances that led to the making of the agreement … have changed and, in the circumstances that exist at the time the application is made, the agreement … would not have been made or would have been ineffective in achieving its intended purpose."⁴ The only other avenue for Tribunal involvement is in the context of the limited third party right to challenge a consent agreement if it can be demonstrated that the agreement contains terms that could not be the subject of a Tribunal order. Applications to challenge an agreement on these grounds must be brought within 60 days after the agreement is registered.⁵

The Commissioner has also used informal "undertakings" to settle merger cases. These undertakings typically consist of a written commitment by the acquiring party to engage in certain actions (e.g., divest assets or shares) in order to resolve the Commissioner’s concerns about the merger in question.

The Commissioner made frequent use of undertakings in the past to resolve merger-related issues, notwithstanding that they are not provided for in the Act and that there were some doubts about their enforceability for that reason.⁶ After the new consent agreement process was adopted, however, Bureau officials stated that they would no longer be willing to rely on undertakings to resolve merger concerns and would insist on consent agreements being registered with the Tribunal.⁷ As a result, since the 2002 amendments came into force, 10 merger-related consent agreements have been registered with the Tribunal while the Commissioner has publicly accepted undertakings in just one case over that same period of time.

The Bureau has set out in several public statements the basic principles that it will apply in negotiating merger settlements.⁸ These include the following:

• The Bureau will normally insist that a merger settlement with an acquiror must comprise some form of "structural" remedy, usually involving the divestiture of specified assets.⁹ The assets must be sold on a "going-concern" basis and be capable of constituting (or being incorporated into) a viable, independent and competitive business.
• "Behavioural" remedies may be acceptable in combination with structural remedies, but the Bureau will rarely accept a remedy that consists solely of behavioural measures. Furthermore, the Bureau will not accept behavioural remedies that require ongoing monitoring and enforcement on its part.¹⁰
• Examples of the behavioural remedies which the Bureau has accepted in past cases include post-merger supply and other support agreements with the acquiror to ensure the viability and competitiveness of the divested business.¹¹ The Bureau has also accepted "codes of conduct" to govern post-merger relations between the acquiror and other industry participants (e.g., customers and suppliers).¹² Other types of behavioural remedies that have been used include the removal of anti-competitive contract terms (such as non-compete clauses and restrictive covenants)¹³ and commitments to apply for the elimination or reduction of tariffs.¹⁴
• Closing will not be permitted before a remedy is agreed upon.¹⁵
• Consistent with this approach, the Bureau considers a "fix-it-first" remedy to be optimal. In a divestiture-type scenario, this could involve either selling the relevant assets to an approved buyer prior to closing or having a purchase and sale agreement in place to allow divestiture to the approved buyer simultaneously with or shortly after closing.¹⁶
• In those cases where the divestiture process is only to take place post-closing:
• the Bureau will insist on measures to ensure that the assets in question are "held separate" from the rest of the merged entity pending sale;
• the acquiring party will be given a certain period of time to accomplish the sale on its own, following which the divestiture will usually become the responsibility of a trustee;
• the Bureau will not agree to any settlement that imposes restrictions on the price at which the trustee may sell the designated assets (i.e., no "minimum price" provision);¹⁷ and
• in certain cases, the Bureau will insist that if the acquiring party cannot sell the original package of agreed upon assets, other assets will be substituted for or added to this package in order to improve its marketability at the trustee stage.¹⁸

Two merger settlements entered into by the Commissioner have recently come under attack. In one case, the acquiring party asked the Tribunal to rescind a consent agreement it had entered into with the Commissioner on the basis of changed circumstances. In the second case, the first of its kind to date, a third party challenged the validity of a newly registered consent agreement by arguing that it contained terms that could not be the subject of a Tribunal order.

These two cases and their implications for the merger settlement process in Canada are discussed below.

In April 2003, RONA Inc. ("RONA") agreed to acquire Réno Dépot Inc. ("Réno"). Both RONA and Réno operated "big box" hardware stores.

The Commissioner subsequently informed RONA of her concern that the merger was likely to result in a substantial lessening of competition in the retail sale of home improvement products in the area of Sherbrooke, Quebec because RONA and Réno operated the only two "big box stores" selling home improvement products in that market. To resolve these concerns, the Commissioner and RONA entered into a consent agreement ("CA"), according to which the Commissioner agreed not to challenge the merger on the condition that RONA divest itself of Réno’s big box store in Sherbrooke (the "Sherbrooke Store").¹⁹

As matters turned out, RONA was unable to find a purchaser for the Sherbrooke Store, and a trustee was appointed to carry out the sale. On November 25, 2004, the trustee notified RONA and the Commissioner that it had reached a definitive agreement with a purchaser for the sale of the Sherbrooke Store. The Commissioner had no objection to the sale but RONA requested further information from the trustee. RONA then applied under section 106(1) of the Act to rescind the CA entirely, coupled with a request that the Tribunal suspend the divestiture process pending its decision on the rescission application.²⁰

In its Notice of Application, filed on January 10, 2005, RONA argued that the imminent opening of a big box store in Sherbrooke by a competing home improvement retailer, Home Depot, amounted to a change in circumstances that justified rescinding the CA. According to RONA, the Sherbrooke market differed from the other markets affected by the merger (in which no divestitures were required) in only one significant respect: Sherbrooke was the only relevant market in which there were no other big box home improvement stores other than those of RONA and Réno. In all of the other affected markets, Home Depot already operated a big box store in competition with the merging parties. Pointing to recent evidence of Home Depot’s intention to establish a big box store in Sherbrooke – including local media reports, public statements by Home Depot and employment offers posted on various recruitment websites – RONA argued that, if Home Depot’s expansion plans in Sherbrooke had been known at the time the CA was entered into, the Commissioner would not have had concerns about the Sherbrooke market in the first place and RONA certainly would never have agreed to dispose of the Sherbrooke Store. Rather, in RONA’s view, the merger would have proceeded in Sherbrooke as it did in the other markets, without the necessity of divestiture.

The Commissioner countered RONA’s application on several grounds. Although acknowledging that Home Depot would shortly be entering the Sherbrooke market, the Commissioner argued that rescinding the CA was not justified because the divestiture process was in full swing and an agreement of purchase and sale had been signed with a prospective buyer. In those circumstances, the Commissioner argued that rescinding the CA would, among other things: (i) reward RONA for allegedly delaying the divesture process contemplated by the CA; (ii) threaten to make consent agreements unenforceable and ineffective; and (iii) cause unfair prejudice to the prospective buyer of the Sherbrooke Store. The Commissioner also took the position that RONA was prevented from arguing that the imminent arrival of Home Depot in the Sherbrooke market was a "change in circumstances" because RONA had always known of Home Depot’s expansion plans, including at the time it entered into the CA.

The Tribunal issued its decision on May 30, 2005, holding in favour of RONA and ordering that the consent agreement be rescinded.²¹

In granting RONA’s application, the Tribunal clarified that the Act’s new consent agreement regime was designed to offer a fast and flexible means of resolving competitive issues by allowing parties to arrive at a negotiated solution. Even though consent agreements, once registered, take on the force of a Tribunal order, the Tribunal recognized that consent agreements are in substance a negotiated instrument between the parties rather than an order of the Tribunal. Consequently, determining whether a change in circumstances justifies varying or rescinding a consent agreement requires the Tribunal to inquire into the intentions of the parties when they signed the consent agreement.²² The Tribunal thus rejected the Commissioner’s submission that the relevant inquiry involves treating the consent agreement as though it were an order made by the Tribunal and determining, in light of the alleged change in circumstances, whether the Tribunal (not the parties) would have made the order.

On that basis, the Tribunal concluded that the recent evidence of Home Depot’s definitive expansion plans in Sherbrooke constituted a change in the circumstances that had prevailed at the time RONA and the Commissioner agreed to the CA. In the Tribunal’s view, the arrival of a Home Depot store in Sherbrooke would have completely resolved the Commissioner’s concerns about RONA’s merger with Réno in that market. Indeed, one of the Commissioner’s representatives testified that the Commissioner would not have recommended divesting the Sherbrooke Store if it had been clear that competitive entry by Home Depot was imminent.

The Tribunal rejected the Commissioner’s argument that Home Depot’s arrival in Sherbrooke was not a change in circumstances because RONA had known of Home Depot’s plans when it signed the CA. According to the Tribunal, RONA signed the CA precisely because it could not convince the Commissioner that Home Depot planned to open a competing store in Sherbrooke. Thus, once it obtained definitive evidence of Home Depot’s plans, the circumstances that led to the CA had clearly changed.

The Tribunal also dismissed the Commissioner’s argument that rescinding the CA would undermine the entire consent agreement process by encouraging parties to enter into agreements with the Commissioner and then await a change in circumstances to free themselves of their obligations. The Tribunal held that the ability to vary or rescind consent agreements as the circumstances warrant is consistent with Parliament’s intention that the consent agreement process be as flexible as possible to allow efficient resolution of competitive concerns in a naturally evolving marketplace. Interestingly, the Tribunal went so far as to find that the Commissioner has an obligation to remain sensitive to market circumstances throughout the duration of a consent agreement, and even suggested that the Commissioner ought to have taken the initiative to amend the CA once there was concrete evidence of Home Depot’s arrival in the Sherbrooke market. The Tribunal criticized the Bureau for having instead become focused on RONA’s divestiture of the Sherbrooke Store to the point that it could conceive of no alternative solution.

As to whether RONA had attempted to thwart the divestiture process, the Tribunal found that RONA had at all times conducted itself reasonably and in compliance with the terms of the CA. The Tribunal further stated that RONA was perfectly within its rights to avail itself of the various mechanisms in the CA to protect its interests (e.g., terms allowing RONA to request certain information about prospective bidders and, ultimately, to oppose a sale under the trustee sale procedure).

These provisions were the result of negotiation between the Commissioner and RONA, each of whom was represented by competent counsel.

Finally, the Tribunal refused to deny RONA’s application on the basis that it would cause unfair prejudice to the third party that had agreed to purchase the Sherbrooke Store pursuant to the trustee sale provisions in the CA. The Tribunal was not convinced that prejudice would result where the third party purchaser was aware that the sale was subject to the terms of the CA, which terms allowed RONA to oppose the sale and seek to vary or rescind the CA itself.

The RONA case forcefully establishes the principle that the Commissioner should not insist on holding parties to the terms of a consent agreement if changes in the marketplace dictate that it is no longer reasonable to do so. This is a positive development for the merger settlement process in Canada because it underscores that consent agreements must be approached by the Commissioner in a flexible and not a rigid fashion. On the negative side, the Commissioner’s defeat in this case may lead the Bureau to insist even more strongly on pre-closing "fix-it-first" divestitures before agreeing not to challenge a merger. Alternatively, the Bureau may require much shorter divestiture periods if a post-closing sale is agreed upon. In either case, the Bureau’s goal would be to minimize the possibility that there will be a material change in circumstance before the remedy is implemented.

In another development related to the Act’s consent agreement process, a group of First Nations has challenged the December 2004 consent agreement entered into by the Commissioner and West Fraser Timber Mills Ltd. ("West Fraser") to address concerns that West Fraser’s acquisition of Weldwood of Canada Limited ("Weldwood") would lessen competition substantially in several lumber-related markets in British Columbia (the "Agreement").²³ The Agreement calls for the divestiture by West Fraser/Weldwood of its interests in two saw mills and certain timber harvesting rights in the Burns Lake region of British Columbia.²⁴

The principal applicant in the proceedings is the Burns Lake Native Development Corporation ("NDC"), which was established to enable the First Nations peoples of the Burns Lake region to participate in the development of mill assets and timber rights affecting their communities. In that capacity, NDC negotiated with the provincial government in the 1970s to acquire indirectly (through a joint venture with Weldwood) a 10.2% interest in the two saw mills and certain timber harvesting rights required to be divested pursuant to the Agreement.

Unlike the RONA case discussed above, NDC is not a party to the Agreement. Rather, it is proceeding under subsection 106(2) of the Act, which (as noted above) allows third parties who are "directly affected" by a consent agreement to apply to the Tribunal within 60 days after it is registered to have one or more of its terms rescinded or varied. In such cases, the Tribunal may grant the application if it is established that "the terms could not be the subject of an order of the Tribunal."

In its application filed on February 3, 2005, NDC argues that the Agreement will force the dissolution of the "carefully built and successful relationship" between the First Nations peoples of Burns Lake and West Fraser/Weldwood. NDC also takes issue with the Commissioner’s alleged failure to consult with the First Nations of Burns Lake regarding the impact of the consent agreement on their (i) interests in the mill assets and timber rights; (ii) ability to pursue economic autonomy and self-government; and (iii) management and participation in the land and controlled use of the natural resources of the Burns Lake area. Among other things, NDC argues that the consent agreement directly affects and is contrary to the interests of the Burns Lake First Nations because it will destroy NDC’s privileged relationship with its existing joint venture partners, through which it has been able to forward the interests of its constituents, and threatens NDC’s ability to fund and deliver "quasi-governmental" social, economic and cultural services to the First Nations peoples of Burns Lake.

As part of its application, NDC asserts that the Act’s new consent agreement registration process, which does not require prior consultation with third parties, denies NDC its rights to a fair hearing as guaranteed under the Canadian Bill of Rights. It argues further that the Commissioner breached her fiduciary duty to the First Nations peoples of Burns Lake by negotiating the consent agreement without giving due regard to their interests. Finally, NDC argues that the consent agreement is based on terms that could not be the subject of a Tribunal order because the Commissioner never provided evidence to support a finding that the merger is likely to lessen competition substantially. In the absence of such a finding, NDC argues that the Tribunal would have no jurisdiction to make an order and thus "there is simply no jurisdiction for the Consent Agreement forming an order."

In response to NDC’s application, the Commissioner submitted a Notice of Reference to the Tribunal asking it "to clarify the scope for third party challenges to consent agreements" and to strike NDC’s application on the ground that NDC lacks standing.²⁵ In its reference, the Commissioner asks the Tribunal to provide its interpretation of (i) who has standing as "directly affected" persons under subsection 106(2); and (ii) what an applicant must establish to demonstrate that a consent agreement’s "terms could not be the subject of an order of the Tribunal." More particularly, with respect to question (ii), the Commissioner asks whether it is necessary at the time a consent agreement is registered with the Tribunal to file evidence of a likely substantial lessening or prevention of competition, and whether the Tribunal is authorized under subsection 106(2) to engage in a de novo review of the likely impact of a merger.

The Commissioner argues that the scope for third party applications to challenge consent agreements should be construed narrowly to reflect "Parliament’s intent to facilitate the ease and speed of merger review, and to establish the Commissioner’s role as gatekeeper to Tribunal proceedings on merger matters." In the Commissioner’s view, an applicant cannot seek to review the Commissioner’s decisions regarding the competitive implications of a transaction but rather must confine itself to demonstrating that the terms of the consent agreement would amount to "a true extra-jurisdictional exercise of the Tribunal’s remedial powers" (e.g., because they are vague or uncertain, impossible to monitor or made for ulterior motives unrelated to the Act) in order for the Tribunal to even consider changing or rescinding the agreement.

NDC subsequently brought a motion to strike out the Commissioner’s reference because the Act’s reference procedure was not available in the circumstances and the questions posed were inappropriate. The Tribunal dismissed NDC’s motion and ruled that the reference will proceed but will be limited to the issues of standing and whether evidence to substantiate the anti-competitive impact of a merger must be filed at the time a consent agreement is registered with the Tribunal. The Commissioner agreed to withdraw her question regarding the Tribunal’s jurisdiction to engage in de novo review of a merger’s likely impact on competition because of NDC’s stated position that it will not be requesting the Tribunal to undertake such a review.

At the time of writing, no schedule had been set for hearing the Commissioner’s reference. NDC’s rescission application will proceed, if at all, only after the Tribunal has decided the Commissioner’s reference.

The outcome of the Commissioner’s reference and NDC’s application will be significant in defining the degree of confidence that merging parties can take in the consent agreement process as a means of expediting the resolution of competitive issues holding up their deals. The stakes can be high, as illustrated by West Fraser’s response to NDC’s application, which notes that it "would not have proceeded with the Acquisition, including the expenditure of in excess of $1.2 billion, but for its reliance on the terms of the Consent Agreement." That said, the underlying socio-political rationale for NDC’s rescission application is unusual and perhaps lies at the margins of what Parliament contemplated when it enacted the new consent agreement regime in 2002. However, the Commissioner’s decision to bring a reference to the Tribunal that includes broadly-styled questions of law will ensure an outcome of important precedential value regardless of the facts in this case.

The RONA and NDC cases will play a significant role in shaping the Act’s new consent agreement procedure introduced in 2002. The Tribunal has confirmed that this procedure is intended to be a flexible and expeditious means of resolving competitive concerns arising from time-sensitive mergers. In the RONA case, the Tribunal has found that consent agreements are not an end in themselves but rather should be capable of evolving in light of changing market circumstances. It remains to be seen, however, to what extent the Tribunal in the NDC case will determine that consent agreements are vulnerable to rescission or variation by third parties. The outcome of these cases will shed significant light on the relative risks and rewards faced by merging parties in proceeding by way of consent agreement. Similarly, it remains to be seen if these cases will result in any significant modifications in the way the Bureau negotiates consent agreements.

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.