Canada: Blakes Competition, Antitrust & Foreign Investment Group's Report From Canada


In this report, the Blakes Competition, Antitrust & Foreign Investment group outlines the key Canadian developments in the areas of competition and foreign investment law over the past year and sets out the key trends for 2015.

Among the most notable developments since our last report was the release by the Supreme Court of Canada (SCC) of its first merger decision in nearly two decades: Canada (Commissioner of Competition) v. Tervita Corp. This groundbreaking decision will have a significant effect on the merger review process going forward. The SCC confirmed the paramountcy of efficiencies in merger review, placing the burden squarely on the Commissioner of Competition (Commissioner) to demonstrate the anticompetitive effects of a merger.

The decision also provides guidance on the framework for analyzing whether a merger is likely to prevent future competition where the merging parties are not already competing at the time of the merger or proposed merger. In assessing whether a potential competitor would likely have entered the market "but for" the transaction, the time frame for assessing entry must be discernible and there must be evidence of when the entrant is realistically expected to enter the market in the absence of the merger. The further into the future that the Competition Tribunal (Tribunal) must look, the more difficult it will be to show that a prevention of competition is "likely."

The past year was also notable for increased public awareness by the Competition Bureau (Bureau) on the topic of corporate compliance. In July, Blakes hosted a workshop on competition compliance, which was a collaborative effort of the International Chamber of Commerce, the Canadian Chamber of Commerce, the Canadian Corporate Counsel Association, the Canadian Bar Association and the Bureau. The significant participation from members of the business community the bar and the antitrust authorities signalled the importance that companies and their executives should place on building a strong culture of competition compliance.

In support of the policy initiatives in this area, the Bureau released a draft update to its bulletin on Corporate Compliance Programs, setting out recommended steps for Canadian businesses to assess and reduce competition risk. We expect this bulletin will be finalized in 2015.

In a departure from current practices in the U.S. and Europe, the bulletin creates a new system under which the Bureau will offer incentives for implementing effective and credible corporate compliance programs. Companies that establish such programs will be eligible for discretionary fine reductions if they should apply for leniency. It is expected that this recent change will spur more Canadian businesses to develop and maintain effective compliance programs. However, it is not anticipated that the shift toward preventive measures will constrain the Bureau's vigorous enforcement efforts. In fact, companies may face harsher penalties if their compliance systems are not credible or effective.

Other notable developments in Canadian competition law from 2014 are discussed in this report along with anticipated key trends and policy changes that are anticipated for 2015.

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