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Blakes Competitive Edge™: October 2020 Update

Blakes Competitive Edge™: October 2020 Update
15 octobre 2020

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

  • Significant reduction in number of completed merger reviews by Bureau during COVID-19 (47 per cent decrease in May through September 2020, as compared to the same period in 2019); however, number of completed merger reviews in September 2020 (15) is comparable to September 2019 (16), and a 67% increase in the number of completed merger reviews in August 2020 (9)

  • The British Columbia Supreme Court denied Telus’ application for an interlocutory injunction to prevent Shaw from using the term “fibre” in its internet service branding and advertising materials

  • On October 6, 2020, the Bureau hosted the first of four online panels as part of its Digital Enforcement Summit

Merger Monitor

September 2020 Highlights

  • 15 merger reviews completed

  • Primary industries: mining, quarrying, and oil and gas extraction (33 per cent), finance and insurance (13 per cent), construction (13 per cent) and retail trade (13 per cent)

  • Zero consent agreement (remedies) filed

  • Six transactions received an Advance Ruling Certificate (40 per cent), while nine transactions received a No Action Letter (60 per cent)

January – September 2020 Highlights

  • 111 merger reviews completed

  • Primary industries: manufacturing (20 per cent), real estate and rental and leasing (14 per cent), finance and insurance (14 per cent), and mining, quarrying, and oil and gas extraction (14 per cent)

  • Three consent agreements (remedy) required

  • 52 transactions received an Advance Ruling Certificate (47 per cent), while 56 transactions received a No Action Letter (50 per cent)

Competition

Non-Enforcement Activity

  • On October 6, 2020, the Bureau hosted the first of four panels in its Digital Enforcement Summit 2020. The panel covered two topics: the role of digital intelligence in the pre-investigation stage and advances in evidence gathering, including its collection and processing.

Letters and Submissions

  • On October 1, 2020, the Bureau published its submission to the Bank of Canada Consultation regarding renewing Canada’s monetary policy framework.

Private Competition Enforcement Activity

  • On September 11, 2020, the British Colombia Supreme Court (Court) dismissed an application by TELUS Communications Inc. (TELUS) for an interlocutory injunction against Shaw Communications Inc. (Shaw) to prohibit Shaw from using the term “Fibre+” in its advertising or creating the misleading impression that it used “fibre to the home” (FTTH) infrastructure in the provision of its internet services. TELUS argued that Shaw did not offer internet services through a FTTH infrastructure, but rather through a DOCSIS technology inferior to the FTTH infrastructure that TELUS used. The Court held that the balance of convenience test did not favour the injunction since, among other things, Shaw showed the use of the term “fibre” was not exclusive to FTTH infrastructure.

Investment Canada Act

August 2020 Highlights

  • For non-cultural investments: zero reviewable investment approvals and 42 notifications filed (29 for acquisitions and 13 for establishment of a new Canadian business)

  • Country of origin of investor (non-cultural): U.S. (45 per cent), U.K. (12 per cent) and Germany (10 per cent)

January – August 2020 Highlights
  • For non-cultural investments: four reviewable investment approvals and 477 notifications filed (327 for acquisitions and 150 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. (47 per cent), U.K. (10 per cent), France (four per cent), China (four per cent) and Australia (four per cent)

Investment Canada Act

Blakes Notes

  • Julie Soloway, a partner in the Blakes Competition, Antirust & Foreign Investment group, was recognized as one of the Top 25 Most Influential Lawyers by Canadian Lawyer Magazine.

  • Navin Joneja, a partner in the Blakes Competition, Antitrust & Foreign Investment group, has been named chair of the Competition Law Section of the Canadian Bar Association for 2020/21, while Kevin MacDonald is chair of the Marketing Practices Committee, Cassandra Brown is vice-chair of the International Committee and David Dueck is chair of the Economics and Law Committee.

  • For more information on current trends in competition law and foreign investment review, view our online seminar hosted by the Blakes Competition, Antitrust & Foreign Investment group on October 1, 2020.

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

  • For the latest legal and business updates regarding COVID-19, visit our Resource Centre.

Contact Us

If you have any questions, please do not hesitate to contact your usual Blakes contact or any member of the Blakes Competition, AntitrustForeign Investment group.