Blakes Competitive Edge™: September 2020 Update

Welcome to the September issue of Blakes Competitive Edge, a monthly publication of the Blakes Competition, Antitrust & Foreign Investment group. Blakes Competitive Edge provides an overview of recent developments in Canadian competition law, including updates on enforcement activity by the Canadian Competition Bureau (Bureau), recent initiatives and key trends.

Key Highlights

Significant reduction in number of completed merger reviews by Bureau during COVID-19 (56 per cent decrease in May through August 2020, as compared to the same period in 2019)
Bureau released key merger statistics for the 2019–2020 fiscal review
Bureau published toolkit for policymakers

Merger Monitor

August 2020 Highlights

Nine merger reviews completed
Primary industries: finance and insurance (33 per cent) mining, quarrying, and oil and gas extraction (22 per cent), real estate and rental and leasing (11 per cent), administrative and support, waste management and remediation services (11 per cent), construction (11 per cent) and wholesale trade (11 per cent)
One consent agreement (remedy) filed (WESCO International, Inc. / Anixter International Inc.)
Three transactions received an Advance Ruling Certificate (33 per cent), while 5 transactions received a No Action Letter (56 per cent)

January – August 2020 Highlights

96 merger reviews completed
Primary industries: manufacturing (23 per cent), real estate and rental and leasing (16 per cent), finance and insurance (15 per cent), and mining, quarrying, and oil and gas extraction (11 per cent)
Three consent agreements (remedy) required
46 transactions received an Advance Ruling Certificate (48 per cent) while 47 transactions received a No Action Letter (49 per cent)

Bureau Publishes Key Statistics for 2019 – 2020 Fiscal Year

On September 1, 2020, the Bureau published statistics in respect of merger reviews during its 2019–2020 fiscal year (April 1, 2019 – March 31, 2020). The key statistics are as follows:

There were 17 per cent more merger filings in 2019–2020 (230 filings), as compared to the previous fiscal year (197 filings)
168 (75 per cent) mergers were classified as "non-complex," while 57 (25 per cent) were classified as "complex", as compared to 2018–2019, where 142 (68 per cent) mergers were classified as "non-complex" and 67 (32 per cent) mergers were classified as "complex"
The Bureau met its non-binding service standard in 97 per cent of cases (98 per cent for non-complex and 93 per cent for complex mergers), which is consistent with its performance in 2018–2019
The average review length was 10.93 days for non-complex mergers and 36.18 days for complex mergers, a decrease of more than four days (from 40.69 days) for complex mergers in 2018–2019
13 supplementary information requests (SIRs) were issued (four per cent of total concluded matters filed), an increase of three SIRs issued from the 2018–2019 fiscal year
Five reviews were concluded with issues (i.e., consent agreements, foreign remedies that resolved Canadian competition concerns, transactions abandoned due to competition concerns, section 92 matters and alternative case resolution), the same number as in 2018–2019

Restrictive Trade Practices

Bureau Seeks Input from Market Participants to Inform Ongoing Amazon Investigation

On August 14, 2020, the Bureau announced an investigation into Amazon under the restrictive trade practices provisions of the Act, with a focus on potential abuse of dominance. The Bureau invited market participants to provide input to inform its investigation into Amazon.

Non-Enforcement Activity

Bureau to Host First Annual Digital Enforcement Summit Fall 2020

On August 13, 2020, the Bureau announced that it will host its first annual Digital Enforcement Summit in a series of four virtual online panels, to enhance its effectiveness as it takes on new and emerging issues in the digital economy. The four panels will follow the stages of an investigation from detection to resolution, focusing on issues that are central to enforcement in the digital economy.

Bureau Launches Toolkit for Policy Makers

On August 20, 2020 the Bureau released a competition assessment toolkit to help policymakers promote competition in Canadian industries. The Strengthening Canada's economy through pro-competitive policies toolkit suggests a five-step process for policymakers considering new regulations and policies, and includes examples of policies that, in the Bureau's view, can harm competition, such as exclusivity provisions, license issuance limits, minimum infrastructure requirements and fixed prices or price ceilings. For more information, see our August 2020 Blakes Bulletin: Competition Bureau Issues Pro-Competitive Toolkit for Policymakers.

Bureau Signs New Competition Enforcement Framework with Five Competition Authorities

On September 2, 2020, the Bureau announced it had entered into a new competition enforcement framework with the Australian Competition and Consumer Commission, the New Zealand Commerce Commission, the United Kingdom Competition & Markets Authority, the United States Department of Justice and the United States Federal Trade Commission. The Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities is meant to improve the Bureau's ability to cooperate with these authorities. For more information, see our September 2020 Blakes Bulletin: Canadian Competition Bureau Signs onto Cooperation Framework with Five Eyes Counterparts.

Investment Canada Act

July 2020 Highlights

For non-cultural investments: zero reviewable investment approvals and 48 notifications filed (36 for acquisitions and 12 for establishment of new Canadian business)
Country of origin of investor (non-cultural): USA (42 per cent), UK (13 per cent), France (six per cent)

January – June 2020 Highlights

For non-cultural investments: four reviewable investment approvals and 435 notifications filed (298 for acquisitions and 137 for establishment of new Canadian business)
For cultural investments: zero reviewable investment proposal approvals and 11 notifications (five for acquisitions and six for establishment of new Canadian business)
Country of origin of investor (non-cultural): USA (47 per cent), UK (10 per cent), France (four per cent), China (four per cent), Australia (four per cent)

Blakes Insights

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