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Blakes Competitive Edge™: May 2024 Update

May 14, 2024

Welcome to the May 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

  • The Bureau submits its report to the Minister of Transport outlining its findings concerning Bunge Limited’s proposed acquisition of Viterra Limited.
  • A settlement agreement between the Yukon Real Estate Association and the Bureau brings the Bureau’s abuse of dominance investigation to a conclusion. 
  • The Bureau releases its 2024-2025 Annual Plan, highlighting its commitment to utilizing the changes made under the Competition Act (Act) and prioritizing areas that will impact Canada’s affordability crisis.

Merger Monitor

March 27 – April 26 Highlights

  • 14 merger reviews published, 16 merger reviews completed 
  • Primary industries of completed reviews: manufacturing (25%); real estate and rental and leasing (19%); finance and insurance (13%); transportation and warehousing (13%)
  • Ten transactions received a No Action Letter (67%), four transactions received an Advance Ruling Certificate (27%) 
  • One transaction resolved through other means; zero consent agreements (remedies) filed; zero judicial decisions filed

January – April 26 Highlights

  • 46 merger reviews published, 55 merger reviews completed 
  • Primary industries of completed reviews: manufacturing (18%); real estate and rental and leasing (15%); retail trade (13%); mining, quarrying, and oil and gas extraction (11%); transportation and warehousing (11%); professional, scientific and technical services (9%) 
  • 31 transactions received a No Action Letter (56%), 21 transactions received an Advance Ruling Certificate (38%), and two transactions were resolved through other means (4%) 
  • One consent agreement (remedy) filed; zero judicial decisions filed

Merger Reviews Completed Through April 26, 2024 

Chart of Merger Reviews Completed through April 26, 2024

Competition Bureau Reaches Consent Agreement with the Yukon Real Estate Association Regarding Its Membership Practices

  • On April 25, 2024, the Bureau announced that it had entered into a consent agreement with the Yukon Real Estate Association (YREA) to address YREA’s residency requirement that certain prospective members must have lived in the Yukon for at least a year before they could become a member of the YREA. The Bureau concluded that such a requirement contravened the abuse of dominance provisions of the Act, because implementing and enforcing residency requirements impede new forms of competition. Pursuant to the terms of the consent agreement, the YREA must not implement or enforce residency requirements and must ensure that they facilitate non-discriminatory access to the market for all future competitors. The Bureau signed a similar consent agreement in November 2023 with the Northwest Territories Association of Realtors.

Competition Bureau Concludes that Bunge Limited’s Proposed Acquisition of Viterra Limited Will Harm Competition 

  • On April 23, 2024, the Bureau issued a press release announcing it had concluded that global agricultural company Bunge Limited’s (Bunge) proposed acquisition of grain handler Viterra Limited (Viterra) was likely to result in a substantial lessening of competition in the sale of canola oil in Eastern Canada, and in the purchase of canola in certain markets in Western Canada, while also leading to a significant loss of rivalry between Bunge and Viterra in agricultural markets in Canada. The Bureau provided the Minister of Transport with a report outlining its findings regarding the proposed acquisition, which will inform Transport Canada’s public interest review of the proposed transaction under the Canada Transportation Act.

Competition Tribunal Sets Out the Elements Required for Private Litigants Requesting Leave 

  • On April 15, 2024, the Competition Tribunal (Tribunal) published its order and reasons in Winston Gaskin et al. v. Rogers Communications Inc. et al, ultimately providing a thorough analysis of the elements required for private litigants to request leave under section 103.1 of the Act (with respect to the requirements under the Act and the Competition Tribunal Rules for filing and service of an originating document), which Mr. Gaskin failed to satisfy. The Tribunal’s direction provides further clarity regarding leave requirements under section 103.1 and represents one of the first decisions regarding leave to bring a private action under the abuse of dominance provision (section 79), since private access was expanded in the June 2022 amendments to the Act.

Non-Enforcement Activity

Competition Bureau Announces Intention to Conduct Market Study into the Canadian Airline Industry

  • During the Transport, Infrastructure and Communities Committee’s meeting on May 9, 2024, Melissa Fisher, Deputy Commissioner of the Competition Bureau’s Merger Directorate, announced the Bureau’s intention to conduct a market study into the Canadian airline industry. If launched, this will be the first market study conducted by the Bureau following the December 2023 amendments to the Competition Act, which empowered the Commissioner to seek production orders against private companies that are likely to have information relevant to a market study.

Competition Bureau Releases Its 2024-2025 Annual Plan 

  • On April 30, 2024, the Bureau published its 2024-2025 Annual Plan – Onwards and upwards: Strengthening competition for Canadians. In an accompanying press release, the Bureau announced plans to focus on leveraging these new changes and adhering to the three pillars of its Strategic Vision (i.e., enforcement, promoting competition, and investing in the agency), as it takes enforcement action and promotes competition. Additionally, the Bureau plans to target sectors that will have significant impact on Canada’s affordability crisis, conduct a new market study under the newly strengthened framework, and use a whole of government approach, among other priorities.

Investment Canada Act 

Non-Cultural Investments

March 2024 Highlights

  • 95 notifications filed (73 filed for acquisitions, 22 for the establishment of a new Canadian business) 
  • Country of ultimate control: United States (56%), Germany (4%), United Kingdom (4%), France (3%), India (3%), Sweden (3%), Switzerland (3%)

January – March 2024 Highlights

  • One reviewable investment approval and 285 notifications filed (216 for acquisitions and 69 for the establishment of a new Canadian business)
  • Country of ultimate control: United States (58%); France (4%); United Kingdom (4%); India (3%)

Chart of Non-cultural Investments from January to March 2024

Blakes Notes

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.