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Mergers and Acquisitions in Canada

Parties proposing MA transactions involving Canadian businesses must address the following:

  1. 1.     Is the transaction notifiable under the Act?
  1. 2.     Will the transaction attract a close review from the Bureau and risk a challenge under the substantive merger provisions?
  1. 3.     Does the transaction involve a business sector which may entail additional merger issues and review, as well as the input of regulators other than the Bureau?

Generally, in the case of a horizontal merger (where businesses of merging parties overlap, in a competitive sense, in products and territory), some analysis must be done to assess the risks and to develop a strategy for notification, requesting clearances, sorting timing issues and addressing the potential concerns of the Bureau. While the Commissioner is the only party that can bring proceedings under the substantive merger provisions, there are provisions for third parties to ask for intervenor status. Often what motivates the Bureau to closely review and challenge a transaction are concerns by customers, suppliers or other levels of government. Concerns of customers are the most influential. Concerns by competitors are also considered, but are scrutinized to ensure that the basis of the complaint is relevant to a true competitive impact assessment and not motivated by ulterior strategic objectives.

Filings of notifications under the Act, as well as information and submissions provided to the Bureau, are confidential. However, in the merger review process, the Bureau typically contacts market participants, and the parties’ customers and suppliers, to solicit their views on competitive impacts of the merger. The Bureau is sensitive about disclosing non-public information without the merging parties’ consent. Careful consideration of this issue is required up front in situations of sensitive mergers.

While the focus of the Bureau’s assessment is the impact on competition in Canada, in cases of multi-jurisdictional transactions, one can expect that the competition authorities in the jurisdictions affected will cooperate with each other. Parties and their lawyers should ensure that concerns in each affected jurisdiction are addressed and that submissions made to the agencies in all jurisdictions are consistent.

Merger law in Canada can give rise to difficult issues relating to competitive impact and the necessity of pre-notification. The Competition Group at Fraser Milner Casgrain LLP is experienced in complex domestic and international mergers, and can provide practical advice and assistance to facilitate expeditious completion of merger transactions.

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