Canada: Important Developments In Canadian Merger Control And IP Matters


  • The Competition Bureau (Bureau) has obtained a significant remedy in a merger between non-Canadian companies that was not notifiable in Canada. Parties to non-Canadian transactions must keep in mind that the Bureau retains the ability to conduct a review of, and threaten to challenge non-notifiable transactions.
  • A merger the Bureau was challenging before the Competition Tribunal was settled by way of a mediation for the first time. Parties to contentious mergers that may end up being litigated before the Competition Tribunal should consider how the mediation process might affect their timing for closing and strategy.
  • The Bureau has published its updated Intellectual Property Enforcement Guidelines (IPEGs). This update includes new guidance on how the Competition Act will apply to the standard setting context and various practices that occur in the pharmaceutical industry, among other things, and takes account of many of the suggestions made by interested parties in a consultation process that has been ongoing since 2014.


Iron Mountain/Recall — Bureau Forces Large Canadian Divestiture in Global Deal Not Notifiable in Canada

On March 31, 2016, the Bureau announced that it had reached a consent agreement with document storage provider Iron Mountain Incorporated (Iron Mountain) in respect of its proposed acquisition of Recall Holdings Limited (Recall). The remedy requires Iron Mountain to divest itself of Recall's business in every Canadian city where the parties both have operations.

Despite the transaction's large size at a global level, it was not subject to mandatory notification under Canada's Competition Act. However, the Bureau retains jurisdiction to review any merger, regardless of whether it is notifiable, for up to one year after closing. While the Bureau has reviewed (and even litigated) some non-notifiable Canadian transactions, the Iron Mountain case is an important reminder that the Bureau's jurisdiction extends to mergers between non-Canadian companies.

In announcing the consent agreement with Iron Mountain, the Bureau underscored its cooperation with other competition law authorities including the U.S. Department of Justice, the Australian Competition and Consumer Commission and the U.K.'s Competition and Markets Authority. An obligation to seek antitrust clearance in other jurisdictions can increase the likelihood of a non-notifiable merger attracting Bureau attention, and may inform the regulatory strategy adopted by merging parties in respect of Canada.

Parkland/Pioneer Bureau and Merging Parties Settle Litigated Merger in Mediation

On March 29, 2016, Parkland Fuel Corporation (Parkland) reached a consent agreement with the Bureau in relation to Parkland's acquisition of Pioneer Energy's gas stations and supply agreements in Ontario and Manitoba.

The Bureau had challenged aspects of the acquisition that it alleged would lessen or prevent competition substantially in certain local markets before the Competition Tribunal. The Competition Tribunal had permitted the parties to close while holding-separate six gas stations pending the outcome of the litigation.

The Competition Tribunal has set an aggressive timetable for the litigation, with a hearing on the main application scheduled for May and June 2016. However, the Competition Tribunal also scheduled a mediation for mid-March, which was ultimately successful at resolving the case. The mediation process was overseen by Federal Court Chief Justice P. Crampton, who is also a judicial member of the Competition Tribunal. This is the first time such a mediation process has been used in a contested proceeding before the Tribunal.

Under the consent agreement, Parkland will sell a station or exclusive supply agreement in six markets, and is restricted from increasing the margin earned on the wholesale supply of gasoline to certain dealers.

Parties to contentious mergers that may end up being litigated before the Competition Tribunal should consider how the mediation process might affect timing and strategy.

For background information, please see our June 2015 Blakes Bulletin: Important Implications for Merger Planning: Canadian Competition Tribunal Issues Decision on Interim Remedies and Use of Hold Separates.

IPEGs First Update Since 2000

On March 31, 2016, the Bureau published an update to its Intellectual Property Enforcement Guidelines.

This is the first update to the IPEGs since they were originally published in 2000. Interested observers know that knowledge about how competition law can apply to the use of intellectual property has advanced significantly in the past 16 years. This update takes accounts of many of these developments, in particular explaining how the Bureau intends to apply the Competition Act to (i) standard setting bodies and unilateral conduct concerning commitments made to those bodies, and (ii) the settlement of patent infringement litigation among pharmaceutical companies and product lifecycle management strategies employed by pharmaceutical companies.

The update comes after the Bureau published two drafts of the IPEGs for consultation in 2014 and 2015. For further information, please see our June 2015 Blakes Bulletin: Canadian Competition Bureau Releases New Draft IP Enforcement Guidelines for Comment. The Bureau's update takes account of many of the suggestions that were made by interested parties in the consultation process. Importantly, the Bureau had initially indicated its intention to examine agreements in settlement of patent infringement litigation among pharmaceutical companies that involve the transfer of value from a generic company to an innovator company as a criminal matter on a primary basis. The update flips this paradigm and explains that such settlements will be examined as a civil matter unless a settlement involves an agreement to stay out of the market beyond the life of the patent or is a "sham", which the Bureau says it anticipates "would rarely occur."

The update also clarifies or further confirms a number of key principles, including the following:

  • Where conduct constitutes the "mere exercise" of intellectual property rights, the Bureau will only scrutinize conduct under a special section of the Competition Act if certain conditions are met; otherwise, it will not scrutinize the conduct
  • In most cases, the Bureau will leave disputes over the abuse of patents or trademarks to be dealt with by the appropriate intellectual property authorities under the appropriate statute
  • The Bureau may seek leave to intervene in cases where it believes bringing a competition perspective would be important or where the potential scope of intellectual property rights could inappropriately be defined, strengthened or extended

This update is an important reminder to companies operating in innovative industries that conduct related to the use of intellectual property can be subject to the Competition Act.

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
16 Oct 2018, Seminar, Toronto, Canada

Join Blakes lawyers for our 10th annual overview of recent legal and regulatory developments and practical strategies to navigate the changing regulation of Canada’s payments industry.

26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions