Amendments to the Notifiable Transactions Regulations
made under the Competition Act (the Regulations) came into
force on February 2, 2010. These amendments reflect the legislative
amendments to the Competition Act passed in March, 2009.
The highlights include the creation of a uniform notification form
for all transactions, changes to the prescribed information that
must be supplied to the Commissioner, and stipulations as to how
certain asset and revenue values are to be calculated for
The 2009 amendments had already created a single, thirty-day
initial waiting period for all transactions (extendable by issuance
of a "second request," just as in the United States), and
eliminated the choice between a fourteen-day or a forty-two-day
waiting period that had existed under the old regime. Under the
amended Regulations, the former distinction between a "short
form" notification and a "long form" notification
has also been removed in favour of a single list of prescribed
information for all notifiable transactions. As a result, all
transactions will now require the provision of certain information
that previously was supplied only for "long forms." The
additional requirements are:
a copy of each legal document, or the most recent draft of that
document if it is not yet executed, that is to be used to implement
the proposed transaction; and
all studies, surveys, analyses and reports that were prepared
or received by a senior officer for the purpose of evaluating or
analysing the proposed transaction with respect to market shares,
competition, competitors, markets, potential for sales growth or
expansion into new products or geographic regions and, if not
otherwise set out in that document, the names and titles of the
individuals who prepared the document and the date on which it was
prepared. (In the United States, for the equivalent
Hart-Scott-Rodino filing, these types of documents are
normally referred to as the "4(c) documents" - the
Canadian language has also been changed to conform with that in the
Hart-Scott-Rodino Act, such that a single search will now
The amended Regulations also describe how the asset and revenue
values are to be calculated to determine whether an amalgamation
satisfies the new notification test, which establishes a second
"size of parties" threshold for amalgamations (each of at
least two of the amalgamating parties must have assets or gross
revenues exceeding C$70 million).
The 2009 Competition Act amendments also permit the
indexing of the C$70 million "size of transaction"
threshold. Although the Minister responsible can reduce the
threshold to C$67 million in keeping with the slight dip in
Canadian prices in 2009, he has not as yet taken action in this
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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