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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The session will be led by Dr. Robert Brooks, an award-winning author and psychologist. In his presentation, Dr. Brooks will describe the mindset and realistic practices of leaders and staff that help to nurture and sustain a culture characterized by positive emotions, satisfying, respectful relationships, a sense of meaning and ownership for one’s work, and enhanced job performance. Examples will be offered to illustrate strategies for developing a positive emotional culture in an organization.
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The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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