Copyright 2009, Blake, Cassels & Graydon LLP
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 in office.
The Commissioner highlighted the following points during her speech:
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 the law.
3. Mergers
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 Canada
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 basis.
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 limited circumstances.
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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