Originally published in Blakes Bulletin on Competition,
Antitrust & Foreign Investment, December 2009
At a recent Blakes client event, Melanie Aitken, the Canadian
Commissioner of Competition, outlined her priorities, her views on
inter-agency co-operation, and reflected on her first four months
The Commissioner highlighted the following points during her
1. Increased Inter-agency Co-operation
The Commissioner noted the positive working relationship she
shares with her U.S. and EC counterparts, which she expects to
continue with incoming European Commissioner of Competition
Joaquín Almunia (as announced November 27, 2009).
Inter-agency dialogue on merger review and cartel cases is now the
norm and will continue as such.
2. Commissioner will Commence Litigation Responsibly
The Commissioner will seek to resolve matters consensually where
possible; however, the Commissioner stated that she supports
litigation in responsible cases, and will not be deterred by the
possibility of losing a case where the outcome is uncertain but she
believes in the merits of the case. The Commissioner noted that a
key benefit of bringing cases is that it brings added certainty to
Commissioner Aitken will vigorously enforce the merger
provisions of Canada's Competition Act and will
conduct sufficiently thorough reviews consistent with the mandate
given to her by Parliament under the new merger review process,
which was styled after the U.S. second request process. The
Commissioner will be accessible at key junctures in major reviews
including, in appropriate cases, prior to transaction announcement,
during the review process and in the final resolution of clearances
or the negotiation of consent agreements.
4. Status of New Merger Review Process in
The Competition Bureau has issued five supplementary information
requests ("SIRs" – under a similar statutory
framework to U.S. second requests) since the new rules came into
force. According to the Commissioner, in all cases, the parties
have been able to work co-operatively to resolve issues on a timely
5. New Timing Procedures
For those cases that do not warrant the issuance of an SIR, the
Commissioner stated her preference for timing agreements as opposed
to the "pulling and refiling" of a notification (although
the Commissioner added that how "pull and refiles" would
work in practice has yet to be determined).
6. Hold Separates
When asked whether the Bureau will allow parties to close a
transaction outside of Canada but "ring-fence" (i.e.,
hold separate) the assets within Canada, the Commissioner indicated
that her strong preference is to work through a review in tandem
with her sister agencies in other countries. Having said that, she
did not rule out the possibility of hold separate agreements in
7. No Change to Canadian MEGs
Despite the current U.S. review of its merger guidelines and the
consideration of the upward pricing methodology of Carl Shapiro
(Economics Deputy AAG, Antitrust Division) and Joseph Farrell
(Director, Bureau of Economics, FTC), Canada has no current plans
to change its Merger Enforcement Guidelines, although the
Bureau welcomes the opportunity to provide input into the U.S.
process, as requested.
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