In a recent speech given at the Canadian Bar Association's Competition Law Spring Conference, Commissioner of Competition, Matthew Boswell, announced the Bureau's decision to place more focus on identifying non-notifiable mergers which could potentially raise competition law concerns.
While the Competition Act ("the Act") requires pre-merger notification of certain proposed mergers when prescribed monetary thresholds are exceeded, the Act has application to all mergers, both proposed and recently completed, where such mergers prevent or lessen, or are likely to prevent or lessen, competition substantially. In an effort to identify potentially problematic non-notifiable mergers, the role of the Bureau's Merger Intelligence and Notification Unit has been expanded to include a broader focus on intelligence gathering with respect to non-notifiable merger transactions. Within two months of the implementation of this broader focus, the Bureau has already detected two potentially problematic non-notifiable transactions that it is now reviewing.
This increased focus by the Merger Intelligence and Notification Unit on identifying potentially problematic non-notifiable mergers should serve to reinforce the importance to parties proposing non-notifiable mergers to perform a pre-merger assessment of the potential anti-competitive impact of their proposed transaction. Parties who fail to do so may find themselves involved in an unexpected Bureau review of their proposed or completed merger. Should the Commissioner conclude that their merger is problematic from a competition law perspective, the Commissioner has the right, under section 92 of the Act, to make an application to the Competition Tribunal to, among other things, have the Tribunal order a proposed merger not to proceed and a completed merger to be dissolved.
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