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Last week the Canadian Government introduced amendments to the Investment Canada Act (ICA) to implement its revised policy towards state-owned enterprises (SOEs) which it announced in December last year. At that time, while it approved the acquisition by Chinese SOE, CNOOC, of Canadian oil and gas company, Nexen, the Government announced its intention to prohibit acquisitions of control of Canadian oil sands businesses by SOEs except on an exceptional basis. It also stated that joint ventures and minority investments were welcome. In addition, the government indicated it would closely monitor SOE acquisitions in other sectors of the economy and would distinguish between SOE and non-SOE investments when setting the ICA review threshold. (See Focus on Foreign Investment Review, December 2012)
On March 14, 2013, the Autorité des marchés financiers (“AMF”) published for comments a consultation paper (the “AMF Proposal”) pertaining to defensive tactics in response to take-over bids. This consultation is taking place concurrently with the one launched the same day by the Canadian Securities Administrator (“CSA”) with the release of proposed National Instrument 62-105 Security Holder Rights Plans and proposed Companion Policy 62-105CP Security Holder Rights Plans (collectively, “62-105”). Unlike the CSA’s 62-105, the AMF Proposal addresses all defensive tacticsii, not only security holders rights plans.
The Canadian Securities Administrators published for comment a proposed new regulatory framework for rights plans under proposed National Instrument 62-105 Security Holder Rights Plans and proposed Companion Policy 62-105CP Security Holder Rights Plans (collectively, “62-105”). If adopted, 62-105 would provide issuers with a game changing tool to respond to hostile take-over bids, where a target board will be able to use a rights plan as leverage to negotiate with a potential bidder.
In this presentation, Dentons' Ralph Shay, Bill Gilliland and Adrienne O’Reilly discuss recent trends in Mergers and Acquisitions.
In this presentation, FMC’s Bill Gilliland and Dan Shea discuss deal points relating to survey of deals and deal terms.


2011 saw a very active enforcement year for the Competition Bureau, while foreign investor jitters about Canada’s openness to investment following the Government’s rejection of BHP Billiton’s bid for Potash Corporation of Saskatchewan were somewhat allayed. This review highlights the most significant events in competition law and foreign investment review in 2011 and identifies developments to watch out for in 2012.
Susan Paul and Barry Zalmanowitz, Q.C., contributed to The Handbook of Competition Enforcement Agencies 2012, a Global Competition Review special report published in association with Fraser Milner Casgrain LLP.

Canadian competition law is governed by the Competition Act (the Act). The commissioner of competition (the commissioner) heads the Competition Bureau (the Bureau) and has responsibility for administration and enforcement of the Act. Criminal cartel cases are prosecuted by the director of public prosecutions (the DPP) in the courts. The Competition Tribunal (the Tribunal) can grant remedial orders in merger, reviewable matters and abuse of dominance cases. Guidelines published by the Bureau set out the commissioner's approach to enforcing the merger, abuse of dominance and cartel provisions.
Last April, the Supreme Court of Canada (SCC) dismissed an application by Fibrek Inc. (Fibrek) for leave to appeal a decision of the Quebec Court of Appeal in connection with two take-over bids for Fibrek, one hostile and one friendly. Had leave been granted, it is possible that there might have been a resolution of the conflicting Canadian judicial and regulatory positions around the defensive actions a board of directors of a public company is entitled to take in the face of a hostile take over bid. It is also possible that a decision on the merits of the case by the highest court would simply have entrenched the status quo.

The United States Securities and Exchange Commission (“SEC”) has recently adopted amendments to the accredited investor standards in the rules under the Securities Act of 1933 (“U.S. Securities Act”) in order to conform to the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Effective February 27, 2012, the definition of “accredited investor” in the rules under the U.S. Securities Act will exclude the value of a person’s primary residence for purposes of determining whether the person qualifies as an “accredited investor” on the basis of having a net worth in excess of US$1 million.
In a two-day span in October 2011, two Canadian securities commissions released their written decisions to allow shareholder rights plans (poison pills), which had been challenged by hostile take-over bidders, to remain in place for a specified time period following which they would be cease traded.
Should Canada do better to become a leader of innovation in electronic communication with security holders, including the delivery of documents, given the apparent Canadian propensity to spend our time online?
On October 7, 2011, the Ontario Securities Commission (“OSC”) published a Notice and Request for Comment (the “Notice”) on the Application by Maple Group Acquisition Corporation (“Maple”), a consortium of Canadian investment dealers, pension funds and other institutional investors, to acquire TMX Group Inc., Alpha Trading Systems Limited Partnership, Alpha Trading Systems Inc., the Canadian Depository for Securities Limited and, indirectly, CDS Clearing and Depository Services Inc.
On July 21, 2011, the Competition Bureau (the "Bureau") released two new Interpretation Guidelines (the “Interpretation Guidelines”) setting out the Bureau's approach to notifiable transactions in the context of unsolicited or hostile transactions.
Potash, once a relatively obscure commodity, became the unlikely centre of a foreign investment review controversy in Canada in 2010 as the Canadian government rejected BHP Billiton's bid for Potash Corporation of Saskatchewan under the Investment Canada Act's 'net benefit to Canada' test.
On June 27, 2011, the Competition Bureau announced that the Commissioner of Competition (the “Commissioner”) is seeking to prohibit the proposed joint venture between Air Canada and United Continental Holdings Inc. (“United Continental”) under the merger provisions of the Competition Act (the “Act”). The Commissioner is challenging the merger on the grounds that it would likely lead to a substantial prevention or lessening of competition in direct passenger air transportation services between specific city pairs involving an end point in each of Canada and the U.S.


On June 27, 2011, the Competition Bureau (the “Bureau”) released its draft revised Merger Enforcement Guidelines (the “Draft Guidelines”).


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