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Blakes Competitive Edge™: September 2022 Update

September 15, 2022

Welcome to the September 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 activity in 2022 remains strong, with 145 merger reviews completed through the end of August. This is a 0.7% decrease over the number of reviews completed in the same period in 2021 (146).

  • Commissioner of Competition enters into three consent agreements relating to acquisitions of retail gas stations

  • Performance Measurement and Statistics Report shows a substantial increase in merger review activity in the Bureau’s 2021-22 fiscal year

  • Federal Court of Appeal upholds order granting the defendants’ motion to strike the plaintiffs’ statement of claim, while cautioning that Bureau policy statements “do not tell us what a statute means”

Merger Monitor

August 2022 Highlights

  • 16 merger reviews completed

  • Primary industries: mining, quarrying, and oil and gas extraction (25%); retail trade (25%); wholesale trade (13%); administrative and support, waste management and remediation services (13%)

  • 3 consent agreements (remedies) filed

  • Seven transactions received an Advance Ruling Certificate (44%), six transactions received a No Action Letter (38%)

January – August 2022 Highlights

  • 144 merger reviews completed

  • Primary industries: real estate and rental and leasing (19%); manufacturing (14%); mining, quarrying, and oil and gas extraction (13%); wholesale trade (12%)

  • 6 consent agreements (remedies) filed

  • 78 transactions received an Advance Ruling Certificate (54%), 61 transactions received a No Action Letter (42%)

Breakdown of industry bar graph

Merger Enforcement

Competition Bureau reaches agreement with Couche-Tard regarding acquisition of Wilsons gas stations

  • On August 29, 2022, the Commissioner of Competition (Commissioner) entered into a consent agreement with Alimentation Couche-Tard Inc. (Couche-Tard) related to Couche-Tard’s proposed acquisition of Wilsons, which operates and supplies retail gas stations under various brands throughout the Maritime provinces. Following the completion of its review, the Bureau concluded that the proposed transaction would likely substantially lessen or prevent competition in the supply of retail gasoline in certain markets in Nova Scotia, New Brunswick, Newfoundland and Labrador, and Prince Edward Island. To resolve the Bureau’s concerns, Couche-Tard has agreed to divest one Couche-Tard gas station and 46 Wilsons sites and supply agreements.

Competition Bureau reaches agreements with Parkland and Federated Co-operatives Limited regarding acquisition of Husky gas stations

  • On August 24, 2022, the Commissioner entered into consent agreements with Parkland Corporation (Parkland) and Federated Co-operatives Limited (FCL) related to each company’s proposed acquisition of Husky retail gas stations. To resolve the Bureau’s concern that the proposed transactions would likely result in a substantial lessening of competition in the supply of fuel to retail customers in certain local markets, Parkland agreed to divest six retail gas stations in Hamilton, Ontario, and FCL agreed to divest one retail gas station in Gimli, Manitoba. Additionally, the parties agreed that Parkland would acquire three Husky stations and four dealer contracts instead of FCL.

Competition Tribunal rules that questions related to network outages are relevant in Rogers/Shaw

  • On August 26, 2022, the Competition Tribunal ordered in Commissioner of Competition v Rogers Communications Inc. and Shaw Communications Inc. that questions related to network outages are relevant pursuant to the pleading in the proceeding. The order was made after oral submissions from the Commissioner and respondent Rogers Communication Inc.

Non-Enforcement Activity

Competition Bureau releases Performance Measurement & Statistics Report for 2021-22 fiscal year

The Bureau released their Performance Measurement & Statistics Report for the 2021-2022 fiscal year (April 1, 2021-March 31, 2022). Highlights of the PMSR include:

  • Bureau received 246 pre-merger notifications filings pursuant to section 114(1) of the Competition Act and Advance Ruling Certificate (ARC) requests pursuant to section 102 of the Competition Act. This represents an increase of 67 filings from the 2020-2021 fiscal year.

  • Nine Supplementary Information Requests were issued for concluded matters pursuant to section 114(2) of the Competition Act. This is relatively consistent with previous years (11 were issued in 2020-2021; nine in 2019-2020).

  • 100% of the 180 non-complex merger reviews were completed within the Bureau’s service standard, with the average duration of non-complex merger reviews being 9.12 days in 2021-2022, down from 10.21 days in 2020-2021.

  • 94.5% of the 57 complex merger reviews were completed within the Bureau’s service standard, an increase from 84% in 2020-2021, with the average complex merger review being 38.38 days, a decrease from 46.06 days in 2020-2021.

Section 36 Remedies under the Competition Act

  • In Mohr v National Hockey League2022 FCA 145, the Federal Court of Appeal (FCA) upheld a Federal Court judgement granting the respondents’ motion to strike the appellants’ statement of claim and denying the appellants’ motion for leave to amend. The case involves allegations that the respondent hockey leagues conspired to limit opportunities of hockey players in Canadian major junior and professional hockey leagues contrary to sections 45 and 48 of the Competition Act, giving rise to an action for damages under section 36 of the Competition Act. While the FCA upheld the Federal Court’s decision, the FCA found that the Federal Court’s reasons included three errors, including its reliance on Competition Bureau policy statements in interpreting the Competition Act. The FCA cautioned that such policy statements are extrinsic evidence that “do not tell us what a statute means”.

Bureau Events

  • On September 8 and 9, 2022, the Competition Bureau hosted two virtual public information sessions to inform the public about recent amendments to the Competition Act. The sessions discussed the recent amendments to the Act and future updates to the Bureau guidance, and included a question and answer period. The Bureau intends to post a recording of the session to their website in due course. These recordings have not yet been published and will instead be included in next month’s Competitive Edge newsletter. For more information on the amendments, please see our June 24 bulletin.

  • On September 20, 2022, the Bureau will host the Competition and Green Growth Summit, which will explore tools and strategies available to governments and competition agencies in the transition to a greener economy. The Summit will feature 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. Interested persons can register for the session online.

Investment Canada Act 

Non-Cultural Investments

July 2022 Highlights

  • Zero reviewable investment approvals and 87 notifications filed (61 for acquisitions and 26 for the establishment of a new Canadian business)

  • Country of origin of investor: U.S. (48%); U.K. (11%); China (6%); France (5%); India (3%); Sweden (2%)

January – July 2022 Highlights

  • One reviewable investment approval and 656 notifications filed (486 for acquisitions and 169 for the establishment of a new Canadian business)

  • Country of origin of investor: U.S. (55%); U.K. (7%); France (5%); China (3%); India (3%); Hong Kong (3%)

breakdown of investment bar graph

Blakes Notes

  • On Thursday August 25, Best Lawyers Canada 2023 named Blakes as the Law Firm of the Year in Competition and Antitrust Law. Thank you to our peers and Best Lawyers for recognizing the strength of our work in this area. Read more here.

  • On Wednesday, October 12, the Blakes Competition, Antitrust & Foreign Investment group will host a webinar as part of the Blakes Canada/U.S. Legal Update series. Details of the event will be shared soon. If you would like to register your interest in attending, please email us.

  • To read more thought leadership insights from the Competition, Antitrust & Foreign Investment group, please click 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.