Canadian Lawyer

June 2021

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Page 28 of 35 27 when we look at the competition law issues, not just in Canada, but around the world," says Musgrove, who is a past chairman of the Canadian Bar Association National Competition Law Section. He also notes that the bureau often deals with large companies that have the resources to make their argu- ments on why a deal is not anti-competitive. At a time when consumer-oriented proposed mergers — such as the Rogers and Shaw combination — has attracted a lot of attention not only in the media but with Canadians in general, the workload has also increased. The filing fees the bureau charges for a merger review (typically around $75,000) likely don't make up for the growing workload. Michael Kilby, a partner and the head of Stikeman Elliott LLP's competition and foreign investment group, says the complexity of these cases, especially in the digital markets and digital economy, "raise novel issues that require different ways of thinking and different modes of analysis. "I think it's fair to say that, over the years, the burden on the bureau, the workload on the bureau has increased." As for tools and mechanisms of the bureau, Kilby says there has been a lot of attention paid to at least one part of Canada's compe- tition laws unique to this country — the so-called "efficiencies" argument. Companies can make this argument to get a deal through the bureau review process even though that merger might decrease competition. Section 96 of the Competition Act limits the bureau's ability to intercede if companies show that expected efficiencies from a merger would eclipse any potential reduction of competition. These efficiencies do not neces- sarily have to flow down to the end consumer "I think it's fair to say that, over the years, the burden on the bureau, the workload on the bureau has increased." Michael Kilby, Stikeman Elliott LLP CANADA COMPETITION BUREAU MERGER REVIEWS Superior Plus Corp. and Canexus Corp, 2016: The Canadian regulator approved the merger based on the efficiencies defence, but the FTC did not approve it. Superior withdrew its offer to buy Canexus after the two could not agree on a required extension because the FTC had blocked the deal. Staples and Office Depot, 2016: The two office supply retailers saw their proposed merger challenged by the bureau and the U.S. Federal Trade Commission when announced in 2015. The deal was scrapped by the two parties in 2016 after the FTC said it would harm competition. Tervita, 2015: The hazardous waste company had bought an additional site, giving it three of the four permits in the Northern B.C. market. The bureau's commissioner opposed the transaction, and a tribunal ordered a divestiture. The case went to the Supreme Court of Canada, which ruled that all that is required for the efficiencies defence to succeed is that they outweigh the competitive harms. Superior Propane Inc. and ICG Propane Inc., 2003: Perhaps the most contentious merger the bureau has taken on, Superior had a long-running battle with the regulator over its 1998 purchase of ICG. The case ended up at the Federal Court of Appeal, which denied the bureau's request to overturn the competition tribunal's decision to allow the purchase in 2003. Tribunal members concluded that, while the transaction created a monopoly in some areas, resulting efficiencies outweighed the costs of reduced competition. The bureau decided not to take the case to the Supreme Court of Canada. in the form of lower prices. Without weighing in one way or another on the debate, Kilby notes that the efficiencies exception "creates a tension" in the competing

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