Canadian Lawyer

June 2021

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28 LEGAL REPORT CORPORATE COMMERCIAL or acquisitions, the bureau generally responds within about two weeks. For those complex transactions or those that raise competition concerns, the bureau can issue an additional information request to get extensive additional information from the merging parties, which triggers a second 30-day waiting period. That period only starts when the bureau receives complete responses from the parties. A proposed transaction cannot close until those commitments and potentially other requirements have been satisfied or waived by the bureau. Aitken notes that the bureau's current head, Matthew Boswell, has also talked about studying potential changes to the efficien- cies defence. However, Parliament has not proposed a change. So long as the efficien- cies defence exists, she disputes the bureau's current stated policy to look at this defence only after reviewing any anti-competitive impacts against which to trade off any effi- ciencies. The bureau insists on agreement from the parties for extra time, potentially extending to a couple of months, to review the deal if a party raises the efficiencies defence. "I understand why [the bureau] feels it has time pressures," she says. But Aitken adds that she doesn't agree they have the jurisdiction to tie the merging parties' ability to use the efficiencies defence to the parties agreeing to more review time, especially when the second request model already provides more time. Aitken also thinks the competition bureau should "focus more on its enforcement mandate" rather than producing broad market studies on different sectors, especially if there is pressure on financial resources on the regu- lator. She suggests focused reviews of truly problematic transactions or practices are generally a better way to go. Campbell and Musgrove at McMillan agree. "Market studies are a kind of an open-ended, nonspecific investigation," Campbell says. "They run on for years, spend millions and achieve very little. I think they're better off spending their money on real cases, real facts." Aitken adds that if there ever is a time for antitrust regulators to try to secure additional resources, "this is it." competition, antitrust and foreign invest- ment group at Bennett Jones (US) LLP and a former commissioner of the competition bureau (2009-2012), says the regulator has a "coherent" framework and sufficient time frame for reviewing mergers with which to work. This framework includes the signifi- cant ability to require parties to respond to extensive information requests before being allowed to close. She also notes that the bureau is an investi- gative body that does not turn down prospec- tive mergers — although it can challenge the proposed transaction, which then goes to a competition tribunal. This setup is unlike the European Union antitrust regulatory body, which investigates and rules for or against a proposed merger but can also approve or not approve a merger. She says official notification of a proposed merger or acquisition in the "notifiable" category triggers a 30-day statutory waiting period where the bureau needs to approve the transaction. For most non-complex mergers "The reality is that the efficiencies defence has been relevant in only a handful of mergers, though I think there is a legitimate debate to be had as to whether we still need it or not." Subrata Bhattacharjee, Borden Ladner Gervais interests surrounding a particular merger. "It's been a feature of Canadian competition law since the 1980s," Kilby says. He notes that it has been controversial because it can allow a merger to go through that could potentially raise consumer prices. Companies can also cut costs by "creating efficiencies" through facility closures and job losses. Subrata Bhattacharjee, a partner with Borden Ladner Gervais LLP, says he feels that the comfort level is generally high in the tools the bureau has at its disposal, with perhaps the exception of the efficiencies provi- sion. "The question that is raised is whether it is a trap door to letting a whole bunch of anti-competitive mergers through," he says, and even the bureau has expressed frustration with the role of the efficiencies exception. Adds Bhattacharjee: "The reality is that the efficiencies defence has been relevant in only a handful of mergers, though I think there is a legitimate debate to be had as to whether we still need it or not." Melanie Aitken, co-chairperson of the BUREAU MERGER REVIEWS COMMENCED 300 250 200 150 100 50 0 2019-20 total 2017-18 total 2015-16 total 2018-19 total 2016-17 total 2014-15 total 243 234 230 247 254 217

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