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Blakes Competitive Edge™: August 2021 Update

Blakes Competitive Edge™: August 2021 Update
August 13, 2021

Welcome to the August 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 review activity continues to be strong through the first two months of summer. There have been 128 completed merger reviews through the end of July, which is 10 per cent higher than the number of completed reviews through the same period two years ago in 2019 (116), and 44 per cent higher than the same period in 2020 (89), which saw a reduction in merger activity resulting from the pandemic.

  • Competition Bureau obtains court orders with respect to its investigation into Rogers Communication Inc.’s (Rogers) proposed acquisition of Shaw Communications Inc (Shaw).

  • Competition Bureau releases position statement on Aon plc’s (Aon) now abandoned acquisition of Willis Towers Watson plc (WTW).

  • Competition Bureau releases report outlining key takeaways from the Competition and Growth Summit.

Merger Monitor

July 2021 Highlights

  • 21 merger reviews completed

  • Primary industries: mining, quarrying and oil and gas extraction (24 per cent); wholesale trade (19 per cent); real estate and rental and leasing (14 per cent); finance and insurance (14 per cent); and manufacturing (14 per cent)

  • One consent agreement (remedies) filed

  • Nine transactions received an Advance Ruling Certificate (43 per cent), while 11 transactions received a No Action Letter (52 per cent)

January – July 2021 Highlights

  • 128 merger reviews completed

  • Primary industries: manufacturing (22 per cent); mining, quarrying and oil and gas extraction (17 per cent); real estate and rental and leasing (13 per cent); and finance and insurance (12 per cent)

  • One consent agreement (remedies) filed

  • 85 transactions received an Advance Ruling Certificate (66 per cent), while 42 transactions received a No Action Letter (33 per cent)

 

Chart by industry

Merger Enforcement

Competition Bureau obtains court orders to advance investigation of Rogers’ proposed acquisition of Shaw

  • On August 5, 2021, the Competition Bureau announced that the Federal Court of Canada (Court) had granted court orders in relation to the Bureau’s investigation into Rogers’ proposed acquisition of Shaw. The Bureau is investigating whether this merger will lead to a substantial lessening or elimination of competition for services provided by Rogers and Shaw, including mobile wireless, wireline and broadcasting services. The Court orders require TELUS Corporation, Quebecor Inc., BCE Inc. and Xplornet Communications Inc. to produce certain records and written information relevant to the Bureau’s investigation.  

Competition Bureau statement regarding its review of Aon’s acquisition of Willis Towers Watson

  • The Competition Bureau released a position statement regarding Aon’s proposed acquisition of WTW on July 26, 2021. The Bureau’s conclusion was that the proposed merger between the two companies would likely result in a substantial lessening of competition in treaty reinsurance consulting and brokerage services in Canada, noting that the parties are close competitors, there was limited effective remaining competition and that timely and sufficient entry or expansion was unlikely. Aon and WTW formally announced their decision to terminate the merger on July 26, 2021.

Non-Enforcement Activity

Canada Needs More Competition: takeaways from the Competition and Growth summit

The Competition Bureau released a report (Report) outlining key takeaways from the virtual Competition and Growth Summit held June 1-3, 2021. The Report emphasized that Canada should:

  • Seek ways to protect and promote competition

  • Improve regulatory competitiveness and ensure a well-resourced competition law enforcement framework to foster competition and inclusive growth

  • Encourage government regulators at all levels to apply a competition lens to public policies, consistent with international best practices

  • Ensure that its competition authorities are using all available resources and tools to safeguard competitive markets, as well as advising government recovery agendas and engaging in cooperation at the international level

The Report also recommended that the federal government conduct a comprehensive review of the Competition Act to ensure it is serving its purpose.

Section 36 Remedies under the Competition Act

  • In Krishnan v Jamieson Laboratories Inc., 2021 BCSC 1396, the British Columbia Supreme Court (BCSC) certified the plaintiff’s case against WN Pharmaceuticals Ltd. and Natural Factors Nutritional Products Limited as a class proceeding and gave leave for the plaintiff to file further evidence against Jamieson. The plaintiff claimed that the defendant manufacturers negligently misrepresented the contents of their glucosamine sulphate products to class members, and contravened both section 52 of the Competition Act as well as the provisions of certain provincial consumer protection legislation. The BCSC found the pleadings suffice to disclose a cause of action under sections 36 and 52 of the Competition Act (finding that reliance is not required for every section 36 case brought before the courts).

Investment Canada Act

Highlights

  • Information regarding Investment Canada Act decisions for May 2021 and January – May 2021 have not yet been published and will instead be included in next month’s Competitive Edge newsletter.

Blakes Notes

  • For more information on current trends in competition law and the transportation industry, view the Blakes Competition, Antitrust & Foreign Investment group’s online publication published on July 30, 2021.

  • 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, Antitrust & Foreign Investment group.