Welcome to the November 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.
- The number of completed merger reviews by the Bureau during COVID-19 remains significantly below 2019 levels (47 per cent decrease in May through October 2020, as compared to the same period in 2019); however there has been an uptick from the reduced activity levels seen earlier in the pandemic, with 48 merger reviews completed in July to October 2020 (12 per month) as compared to 23 merger reviews completed in Q2 2020 (7.7 per month), a 56 per cent increase in the monthly average of completed merger reviews since the beginning of Q3 2020
- The Bureau hosted the second and third of four online panels as part of its Digital Enforcement Summit
- The Canadian Bar Association hosted its annual Competition Law Symposium at which the Commissioner of Competition delivered remarks on the importance of competition to Canada’s economic recovery following the global COVID-19 pandemic
October 2020 Highlights
- 10 merger reviews completed
- Primary industries: real estate and rental and leasing (30 per cent), manufacturing (20 per cent), and mining, quarrying, and oil and gas extraction (20 per cent)
- Zero consent agreement (remedies) filed
- Five transactions received an Advance Ruling Certificate (50 per cent), while five transactions received a No Action Letter (50 per cent)
January – October 2020 Highlights
- 122 merger reviews completed
- Primary industries: manufacturing (20 per cent), real estate and rental and leasing (16 per cent), finance and insurance (15 per cent), and mining, quarrying, and oil and gas extraction (15 per cent)
- Three consent agreements (remedy) required
- 57 transactions received an Advance Ruling Certificate (47 per cent), while 56 transactions received a No Action Letter (51 per cent)
- On October 19 and November 10, 2020, the Bureau hosted the second and third of four panels in its Digital Enforcement Summit 2020. The second panel examined how enforcement agencies are adapting their approaches for digital investigations with a focus on major case management and team composition. The third panel explored innovative strategies being used in document review such as AI and predictive coding and featured a discussion of new tools in a law enforcement context.
- On October 20-22, 2020, the Canadian Bar Association hosted its annual Competition Law Symposium in an online context. As part of that symposium, the Commissioner of Competition, Matthew Boswell, remarked on the importance of competition to Canada’s economic recovery following the global COVID-19 pandemic. His comments focused on three areas: (1) maintaining the Bureau’s normal analytical framework in failing firm merger transactions while encouraging parties to come in early with evidence and data so the Bureau can do its work quickly, (2) the Bureau’s heightened vigilance for detecting bid-rigging in the government procurement context, and (3) the Bureau’s continued focus on digital enforcement in digital services and online marketing.
- On November 3, 2020, the Competition Tribunal published updated guidance on the COVID-19 pandemic. While the Tribunal premises remain closed to the public, the Tribunal continues to hold hearings through videoconference/teleconference, in person or a hybrid of these methods. The Tribunal expects counsel to address the format of the hearing at a case management conference, to work together to agree on a format and to be prepared to proceed remotely.
Investment Canada Act
September 2020 Highlights
For non-cultural investments: zero reviewable investment approvals and 82 notifications filed (43 for acquisitions and 39 for establishment of a new Canadian business)
Country of origin of investor (non-cultural): U.S. (62 per cent), India (nine per cent), and U.K. (seven per cent)
January – September 2020 Highlights
For non-cultural investments: four reviewable investment approvals and 559 notifications filed (370 for acquisitions and 189 for establishment of new Canadian business)
For cultural investments: zero reviewable investment proposal approvals and 11 notifications (five for acquisitions and six for establishment of new Canadian business)
- Country of origin of investor (non-cultural): U.S. (40 per cent), U.K. (10 per cent), Australia (four per cent), France (four per cent), and India (four per cent)
For more information on current trends in competition law and the energy industry, view the Blakes Competition, Antitrust & Foreign Investment group’s online publication, published on November 4, 2020.
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