Welcome to the April 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 and foreign investment law, including updates on enforcement activity by the Canadian Competition Bureau (Bureau), recent initiatives and key trends.
Key Highlights
- Important amendments to the Investment Canada Act receive royal assent; the provisions of the Act will come into force on the day or days that the governor-in-council sets
- Performance Measurement and Statistics Report shows a slight decrease in merger review activity in the first half of the Bureau’s 2023-2024 fiscal year
- Bureau filing fees increase to C$86,358.76
Merger Monitor
February 22 – March 29 Highlights
- 11 merger reviews published, seven merger reviews completed
- Primary Industries of completed reviews: real estate and rental and leasing (29%); manufacturing (29%); retail trade (14%); finance and insurance (14%); transportation and warehousing (14%)
- Four transactions received a No Action Letter (57%), two transactions received an Advance Ruling Certificate (29%)
- One consent agreement (remedy) filed; zero judicial decisions filed
January – March 29 Highlights
- 32 merger reviews published, 39 merger reviews completed
- Primary Industries of completed reviews: manufacturing (15%); retail trade (15%); real estate and rental and leasing (15%); mining, quarrying, and oil and gas extraction (13%); transportation and warehousing (10%); professional, scientific and technical services (10%)
- 21 transactions received a No Action Letter (54%), 16 transactions received an Advance Ruling Certificate (41%), and one transaction was resolved through other means (5%)
- One consent agreement (remedy) filed; zero judicial decisions filed
Merger Reviews Completed Through March 29, 2024
Enforcement Activity
Competition Bureau Reaches Consent Agreement with Béton Provincial Regarding Its Acquisition of CRH Canada Group Inc.’s Concrete Operations
- On March 26, 2024, the Bureau announced that it had entered into a consent agreement with Béton Provincial (Béton) regarding Béton’s acquisition of CRH Canada Group Inc.’s (CRH) Quebec-based concrete operations. To resolve the Bureau’s concerns that the transaction would lessen competition in the supply of ready-mix concrete in the Laurentides region, Béton agreed to divest from CRH’s ready-mix concrete facility and related operating assets in Mont-Tremblant.
Non-Enforcement Activity
Competition Bureau Announces Increase to the Filing Fee for Merger Reviews
- On March 27, 2024, the Bureau announced that the filing fee for merger reviews has increased from C$82,719.12 to C$86,358.76, effective April 1, 2024. The filing fee applies to parties filing a pre-merger notification or requesting an Advance Ruling Certificate.
Competition Bureau Announces Reporting Tool for Contracts Relating to the 2026 FIFA World Cup
- On March 22, 2024, the Bureau issued a news release announcing the launch of its reporting tool for potential collusive agreements between competitors related to the 2026 FIFA World Cup. Toronto and Vancouver are two of the 16 cities across North America that will host the tournament. The reporting tool provides a tip form where members of the public can report price-fixing, bid-rigging, non-compete, wage-fixing and no-poaching agreements.
Bureau Provides Recommendation Regarding Competition in Canada’s Financial Sector
- On March 21, 2024, the Bureau announced and published a submission in response to the Department of Finance’s public consultation on competition in the financial sector. The Bureau provided two recommendations for lowering consumer switching costs: (i) the adoption of a consumer-driven banking framework and (ii) reconsideration of the application of the stress test at mortgage renewal for uninsured borrowers to allow them to switch lenders.
Bureau Seeking Feedback on AI and Competition
- On March 20, 2024, the Bureau issued a news release and published a discussion paper for public consultation seeking feedback on artificial intelligence (AI) technologies, including the potential impacts of AI on competition in Canada. The Bureau is soliciting feedback on how competition is developing in AI markets, including the potential for competitive harm from AI and how the Bureau can prepare. Parties have until May 4, 2024, to provide their comments.
Competition Bureau Releases Performance Measurement & Statistics Report for the First Half of the 2023–2024 Fiscal Year
The Bureau released its Performance Measurement and Statistics Report (PMSR) for the first half of its 2023-2024 fiscal year (April 1, 2023 to September 30, 2023). Highlights of the PMSR include:
- The Bureau received 94 pre-merger notification filings pursuant to section 114(1) of the Competition Act and Advance Ruling Certificate (ARC) requests pursuant to section 102 of the Act. This represents a decrease of six filings from the same period in the 2022–2023 fiscal year.
- Four Supplementary Information Requests were issued for concluded matters pursuant to section 114(2) of the Competition Act, slightly less than in previous years (six were issued in this period in 2022–2023; five in 2021–2022).
- 98% of the 59 non-complex merger reviews were completed within the Bureau’s 14-day service standard, with the average duration of non-complex merger reviews being 10.18 days, slightly up from 10.03 days in the same period in 2022–2023.
- 88% of the 28 complex merger reviews were completed within the Bureau’s service standard (45 days or, where a Supplementary Information Request is issued, 30 days after responses are provided), with the average complex merger review being 37.44 days. This is up from 30.76 in the same period in 2022–2023.
Investment Canada Act
Non-Cultural Investments
February 2024 Highlights
- 96 notifications filed (72 filed for acquisitions, 23 for the establishment of a new Canadian business and one net benefit review application approval)
- Country of ultimate control: United States (63%), France (4%), China (3%), India (3%)
January – February 2024 Highlights
- One reviewable investment approval and 190 notifications filed (143 for acquisitions and 47 for the establishment of a new Canadian business)
- Country of ultimate control: United States (59%); France (5%); United Kingdom (3%); China (3%); India (3%); Netherlands (3%)
Cultural Investments
Q2 2023 Highlights
- Three reviewable investment approvals and six notifications filed (four for acquisitions and two for the establishment of a new Canadian business)
- Country of origin of investor: United States (67%); United Kingdom (22%); Antigua and Barbuda (11%)
Q1 – Q2 2023 Highlights
- Four reviewable investment approvals and nine notifications filed (six for acquisitions and three for the establishment of a new Canadian business)
- Country of origin of investor: United States (69%); United Kingdom (15%); Antigua and Barbuda (8%); India (8%)
Legislation Watch
Bill C-34 Receives Royal Assent
- On March 22, 2024, Bill C-34 (the National Security Review of Investments Modernization Act) received royal assent. Bill C-34 introduces a new mandatory pre-closing filing requirement for specified investments by non-Canadians in certain business sectors (which will be identified in the regulations); provides the relevant minister with the authority to accept undertakings during a national security review; and removes the threshold for review of investments by state-owned enterprises from countries that do not have trade agreements with Canada. On March 27, 2024, Innovation, Science and Economic Development Canada published a news release and corresponding backgrounder stating that the governor-in-council will set a near-term coming-into-force date for the majority of Bill C-34’s elements. Certain amendments, including the new mandatory pre-closing filing regime, will come into force after the applicable regulations are enacted. For more information on the amendments, please see our December 7, 2022, Blakes Bulletin: Canadian Government Proposes Important Changes to Expand National Security Review Powers Under the Investment Canada Act and our April 4, 2023, Blakes Seminar: Sweeping Changes to Canada’s Competition and Foreign Investment Rules.
Blakes Notes
- On March 21, 2024, Blakes lawyer Julia Potter moderated a panel for the Canadian Bar Association on the intersection of the Competition Act and merger reviews in the financial services, telecom and transportation sectors. A recording of the conversation is expected to be released in the near future.
- On March 21, 2024, Blakes published This Is Not a Simulation: Canada Releases New Policies for Foreign Investments in Interactive Digital Media, summarizing the potential impact of two recent policies regarding foreign investment in the interactive digital media sector.
- Browse our thought-leadership insights from the Competition, Antitrust & Foreign Investment group to learn more.
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.