Welcome to the October 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
Merger review activity slowed considerably in September 2022, with only eight merger reviews completed within the month. This is one of only six months since February 2012 in which the Bureau completed fewer than 10 merger reviews. The number of merger reviews through the end of September 2022 (153) was 7.3% lower than the number of completed reviews in the same period in 2021 (165).
The Government of Canada has proposed amendments to the Notifiable Transactions Regulations.
The Bureau published its second report discussing its digital health care market study, which considered the impact of public procurement policy on innovation in, and choice in and access to digital health care services.
The Bureau hosted the Competition and Green Growth Summit.
Merger Monitor
September 2022 Highlights
Eight merger reviews completed
Primary industries: mining, quarrying, and oil and gas extraction (38%); finance and insurance (25%); manufacturing (13%); utilities (13%); transportation and warehousing (13%)
Zero consent agreements (remedies) filed
Four transactions received an Advance Ruling Certificate (50%), four transactions received a No Action Letter (50%)
January – September 2022 Highlights
153 merger reviews completed
Primary industries: real estate and rental and leasing (18%); mining, quarrying, and oil and gas extraction (14%); manufacturing (14%); wholesale trade (12%)
Six consent agreements (remedies) filed
82 transactions received an Advance Ruling Certificate (54%), 65 transactions received a No Action Letter (42%)
Further mediation scheduled in attempt to resolve Bureau’s challenge of Rogers/Shaw merger
On October 14, 2022, the Competition Tribunal released a statement confirming that mediation has been scheduled for late October 2022 in an attempt to reach a consensual resolution to the Bureau’s challenge of the proposed Rogers/Shaw merger.
Bureau approves divestiture of Industrial Waste Services and Oil Recycling Services Facilities to Environmental 360 Solutions Ltd.
On October 18, 2022, the Bureau announced its approval of GFL Environmental Inc.’s (GFL) sale of seven facilities that supply industrial waste services (IWS) and/or oil recycling services (ORS) in western Canada to Environmental 360 Solutions Ltd. The sale of these facilities, which was required under the Bureau’s consent agreement with GFL in April 2022, concludes the Bureau’s review of GFL’s acquisition of Terrapure Environmental Ltd.
Other Enforcement Activity
Former engineering firm executive pleads guilty in Gatineau bid rigging case
On October 14, 2022, the Bureau announced that a fifth individual has pled guilty to bid rigging charges in connection with the Bureau’s investigation into alleged bid-rigging with respect to infrastructure contracts awarded by the City of Gatineau between 2004 and 2008. This is the fifth guilty plea that has resulted from the Bureau’s investigation.
Non-Enforcement Activity
Bureau publishes 2021-22 Annual Report
The Bureau released its 2021-22 Annual Report on October 12, 2022. The report summarizes the Bureau’s enforcement and advocacy efforts throughout the Bureau’s 2021-22 fiscal year. Among other items, the Bureau highlighted: (i) its intervention in more than 12 cases involving potential deceptive marketing practices; (ii) the Bureau’s roles as host of the international Competition and Growth Summit, and President of the International Consumer Protection and Enforcement Network; and (iii) the Bureau’s decision to establish the Digital Enforcement Agency and Intelligence Branch of the Competition Bureau (CANARI). CANARI’s mandate involves providing support regarding digital business practices and intelligence gathering.
Canadian Government proposes amendments to the Notifiable Transactions Regulations
On October 1, 2022, the Government of Canada proposed revisions to the Notifiable Transactions Regulations (Regulations). The revisions were intended to harmonize the Regulations with the Competition Act (Act) following recent amendments to the Act which broadened the concept of affiliation to include new business structures and aligned the treatment of those structures under the Act with the treatment of corporations. The proposed amendments would also update the Regulations to be consistent with the Bank of Canada’s current procedure for publishing foreign exchange rates. Interested parties are invited to submit comments regarding the proposed amendments by November 30, 2022.
Competition Bureau recommends changing procurement policy to improve health care
On October 5, 2022, the Bureau published the second of three reports based on its digital health care market study; this report is focused on public procurement. The report examines how pro-competitive public procurement policies can foster innovation and bring about greater choice and access to digital health care services. It then identifies barriers that prevent innovative suppliers from competing for public contracts and recommends three changes to procurement rules to help foster greater competition and innovation, including (i) establishing a national innovation procurement centre of expertise, (ii) removing barriers that harm competition, and (iii) supporting innovation-friendly procurement processes. A summary of the first report was included in a previous edition of Blakes Competitive Edge.
Section 36 Remedies under the Competition Act
In Beaucage v Ticketmaster Canada Holdings ULC, 2022 ONSC 5309, the Ontario Superior Court granted an order on a consent basis certifying the action as a class proceeding for the purpose of settlement and approving the notices of settlement approval. The action centred around allegations that the defendants had failed to provide timely ticket refunds for events postponed or cancelled as a result of COVID-19, and that in connection the defendants had made false, misleading and/or deceptive representations regarding the terms of cancellation on their website contrary to section 52 of the Competition Act. Following the issuance of this order, the class action against Ticketmaster has concluded.
Bureau Events
On September 20, 2022, the Bureau hosted the Competition and Green Growth Summit, which explored tools and strategies available to governments and competition agencies in the transition to a greener economy. The Summit featured three panels, including (i) A Green Future: Competition Policy and Competitiveness, (ii) Enforcers Roundtable: Perspective from Competition Agencies, and (iii) Competition Enforcement in a Greener Economy. Panelists highlighted issues intersecting competition and sustainability such as greenwashing enforcement and competitor collaboration on green initiatives. The Summit also featured addresses by Matthew Boswell, Commissioner of Competition, and William Kovacic, global competition professor of law and policy at George Washington University Law School.
Investment Canada Act
Non-Cultural Investments
Highlights
Information regarding Investment Canada Act decisions for September 2022 and January – September 2022 have not yet been published and will instead be included in a subsequent edition of the Blakes Competitive Edge newsletter.
Blakes Notes
On Wednesday, October 12, 2022, the Blakes Competition, Antitrust & Foreign Investment group hosted a webinar as part of the Blakes 2022 Canada/U.S. Legal Update Seminar Series. A recording of the webinar can be found here.
Contact Us
If you have any questions, please do not hesitate to contact your usual Blakes contact or any member of the Blakes Competition, Antitrust & Foreign Investment group.