Originally published in Blakes Bulletin on
Competition Law, January, 2008
Rarely do decisions from the Federal Court of Appeal promise
to have such a wide-ranging impact on businesses. On January
22, 2008, the Federal Court of Appeal released its decision in
Commissioner of Competition v. Labatt Breweries
Limited. The appellate court dismissed an appeal by the
Commissioner of Competition (the head of Canada's
Competition Bureau) of a decision by the Competition Tribunal
made March 27, 2007 to allow Labatt to conclude its takeover
bid for rival Lakeport Breweries. This decision represents an
important development in competition law jurisprudence. (See
also our April 2007 Blakes Bulletin on Competition Law: New Timing Paradigm in
Canada for Merger Review: The Labatt
The case is the first appellate decision regarding section
100 of the Competition Act, which allows the
Commissioner to apply for a temporary injunction to delay
closing for up to 60 days after the expiry of the statutory
waiting period. The Federal Court of Appeal decision is
significant as it affirms with appellate authority the
Tribunal's view that it will not block closing unless
there is evidence that its remedial powers will be
substantially impaired in accordance with Canadian law.
As noted by the Court of Appeal:
". . . the Competition Tribunal must consider the
effectiveness of the available section 92 remedies in the
absence of an interim order, assuming there is a determination
that the proposed transaction would, or would be likely to,
prevent or lessen competition." - para. 17
". . . the Commissioner's application for an
interim order [was] deficient in that it failed to establish
that, without an interim order, the Tribunal's remedial
powers under section 92 would be substantially impaired. That
conclusion was not wrong in law, and was reasonably open to
[the Tribunal] on the record." - para. 18
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