No, there is no supranational regulatory agency.

Appointed by the Governor in Council (a member of the federal cabinet) on the advice and recommendation of the Minister of Innovation, Science and Economic Development, the Commissioner of Competition (the “Commissioner”) is an independent law enforcement official who is responsible for the administration and enforcement of the Competition Act. The Commissioner heads the Competition Bureau (the “Bureau”), which is an independent branch of the federal Department of Innovation, Science and Economic Development.

The Bureau can be contacted at the following address:
        Competition Bureau 
        50 Victoria Street 
        Gatineau, Quebec  K1A 0C9
        Canada 

The Bureau’s website is www.competitionbureau.gc.ca. 

Other agencies with industry-specific jurisdiction (e.g., the Canadian Radio-television and Telecommunications Commission) are also responsible for reviewing mergers when required under industry-specific legislation.
 

No, there is no supranational regulatory agency. 

Yes. The pre-merger filing requirements are set out in Part IX of the Competition Act, the Notifiable Transactions Regulations and applicable Bureau guidance documents, which are available on the Bureau’s website.

The substantive provisions of the Competition Act (the "Act") under Part VIII are applicable to all "mergers". Section 91 of the Act defines a "merger" as "…the acquisition or establishment, direct or indirect, by one or more persons, whether by purchase or lease of shares or assets, by amalgamation or by combination or otherwise, of control over or significant interest in the whole or a part of a business of a competitor, supplier, buyer or other person."

This definition covers any manner in which control over, or a significant interest in, the whole or a part of a business of another person is acquired or established and can include mergers between suppliers of competing products (horizontal mergers) as well as mergers between firms that do not compete (non-horizontal mergers).

The pre-merger notification provisions of the Act under Part IX are applicable to the following types of transactions where the relevant thresholds have been exceeded:

• acquisition of assets (subsection 110(2) of the Act) 
• acquisition of voting shares (subsection 110(3) of the Act)
• amalgamation (subsection 110(4) of the Act)
• creation of a combination (subsection 110(5) of the Act)
• acquisition of an interest in a combination (subsection 110(6) of the Act)

Sections 111, 112 and 113 of the Act also set out the statutory exemptions to Part IX. Among these exemptions are transactions involving affiliates. Section 15 of the Notifiable Transactions Regulations also contains an exemption for asset securitization transactions.

Certain minority investments fall within the scope of the merger notification obligation. An acquisition of more than 20 percent of the voting shares of a public corporation or more than 35 percent of the voting shares of a private corporation or more than a 35 percent interest in a non-corporate entity will be notifiable if it exceeds the relevant "size of transaction" and "size of parties" thresholds set out below.

Foreign-to-foreign transactions are subject to the same thresholds as domestic transactions (see below) and will be subject to pre-merger notification if they exceed the financial thresholds set out above.

A transaction is notifiable where it exceeds both the relevant “size of transaction” threshold and the “size of parties” threshold.  The applicable “size of transaction” thresholds are as follows for each type of transaction covered by the Act: In the case of an acquisition of the equity of a corporation or non-corporate entity: Size of Transaction Threshold:  the aggregate value of the assets in Canada, or the aggregate annual gross revenue from sales in or from Canada generated from Canadian assets, of the target operating business and its subsidiaries, must be greater than CAD $93 million (amount indexed and updated yearly); and Size of Equity Threshold:  the purchaser must be acquiring more than 20 percent of the voting shares of a public corporation or more than 35 percent of the voting shares of a private corporation or more than a 35 percent interest in a non-corporate entity (i.e., a right to receive more than 35 percent of the profits or assets on dissolution), or, where the purchaser owns more than 20 percent or 35 percent (as applicable), but less than 50 percent of the voting shares of a corporation, the purchaser must be acquiring more than 50 percent of the voting shares of a public or private corporation. In the case of an acquisition of assets from an operating business: Size of Transaction Threshold:  the aggregate value of the assets in Canada to be acquired, or the aggregate annual gross revenue from sales in or from Canada generated from those assets, must be greater than CAD $93 million (amount indexed and updated yearly). In the case of an amalgamation of two or more corporations where at least one carries on an operating business in Canada: Size of Transaction Threshold:  the aggregate value of the assets in Canada that will be owned by the continuing corporation and any corporations that it controls, or the aggregate annual gross revenue from sales in or from Canada generated from those assets, must be greater than CAD $96 million (amount indexed and updated yearly); and Each of at least two of the corporations to the transaction, along with their affiliates, must have assets in Canada that exceed an aggregate value of, or aggregate gross revenues from sales in, from, or into Canada that exceed CAD $93 million (amount indexed and updated yearly).In the case of a combination of two or more persons to carry on business otherwise than through a corporation (please note that certain types of joint ventures may be subject to an exemption from filing): Size of Transaction Threshold:  the aggregate value of the assets in Canada that are the subject matter of the combination, or the aggregate annual gross revenue from sales in or from Canada generated from those assets, must be greater than CAD $93 million (amount indexed and updated yearly). The “size of parties” threshold applies to all types of transactions caught by the merger control provisions of the Act. The parties to the transaction, together with their respective affiliates, must have aggregate assets in Canada, or aggregate annual gross revenues from sales in, from, or into Canada, in excess of CAD $400 million.

If the above-noted thresholds are met, a complete filing must be made by each of the parties to the transaction prior to closing (unless an advance ruling certificate or “ARC”, has been granted or the Commissioner has waived the obligation to file a notification).  

The filing must be made prior to closing if the transaction is subject to Part IX of the Act. The parties are prohibited from completing their transaction within an initial 30 calendar day waiting period (which may be extended by the Commissioner) unless the Commissioner issues an ARC or completes his or her review and waives the remainder of the waiting period.

If a merger is subject to mandatory pre-merger notification under Part IX of the Act, the statutory waiting period is 30 calendar days after the day in which both parties have filed their respective notification, unless, before the expiration of that period, the Commissioner issues a Supplementary Information Request (a “SIR”). Where a SIR is issued, the parties cannot close until 30 calendar days after the day on which they have complied with the SIR. The Commissioner can terminate the statutory waiting period at any time when he or she has decided not to challenge the merger.

The filing includes information relating to the nature of the businesses carried on by the parties and their affiliates, principal suppliers and customers of the parties and their affiliates and general financial information. It also includes a copy of all transaction documents used to implement the transaction along with documents prepared by or for a director or officer that considers, among other things, the implication of the transaction on competition (similar to the so-called “4c” documents provided in the U.S. under the Hart-Scott-Rodino Antitrust Improvements Act of 1976).

It is also common practice for the parties to submit a briefing paper, known as an “ARC Request”, which sets out why the Commissioner would not have sufficient grounds to apply to the Competition Tribunal to challenge the transaction. The ARC Request is typically either submitted concurrently with or in advance of the formal notification filing.
 

A filing fee of CAD $82,719.12 applies to all pre-merger notifications and ARC Requests. One filing fee is payable per transaction (whether either or both an ARC Request and/or pre-merger notification filings are made). In recent years, this fee has been adjusted annually. 

The Commissioner can apply to the Competition Tribunal for a remedial order up to one year following the completion of a merger.

The Bureau also has adopted non-binding service standards to indicate the expected time for the completion of its substantive review of a merger, which will depend on the merger’s complexity:

• "Non-complex" – review will be completed in 14 calendar days or less; and
• "Complex" – review will be completed in 45 calendar days or less, except where a SIR is issued, in which case the review will be completed in 30 calendar days or less following compliance with the SIR.

A variety of factors are relevant to this classification, including the nature and extent of the actual and potential overlap between the parties’ businesses (both in terms of products and geography) and their combined market shares in such businesses. The Federal Court of Appeal has confirmed that this classification has no force of law, although the Bureau generally still issues such classification letters in its review process.

The substantive test to challenge a merger is whether it is likely to prevent or lessen competition substantially. There is an express efficiency defense to anticompetitive mergers, which applies to cases where the efficiencies from the merger are likely to be greater than and offset any effects of the prevention or lessening of competition, and would not likely be achieved if an order were made by the Competition Tribunal.  

The Commissioner may issue an Advance Ruling Certificate (“ARC”) in respect of a transaction, which provides a substantive “approval” of the transaction by confirming that the Commissioner is satisfied that he would not have sufficient grounds to challenge the transaction under Section 92 of the Competition Act.  Where an ARC has been issued, the Commissioner may not challenge the transaction so long as it is completed within one year after the ARC was issued, and does not materially change.  

The Commissioner may also issue a “no-action letter”, or a letter stating that the Commissioner has decided not to challenge the transaction at this time. While a “no-action letter”, unlike an ARC, technically preserves the Commissioner’s right to challenge a transaction within a year of closing, we are not aware of any case in which the Commissioner has issued a no-action letter in respect of a transaction and subsequently challenged that transaction. 

As described previously under the question "Is there an automatic waiting period?", parties are legally in a position to complete a transaction once the relevant waiting periods have expired, notwithstanding whether the Commissioner has completed his/her review (though in many cases the parties contract to require an ARC or no-action letter as a condition to closing). The Commissioner has no power to impose a remedy on merging parties; rather, where the Commissioner believes a transaction will substantially prevent or lessen competition in Canada, he can apply to the Competition Tribunal for an order under Section 92 of the Act or can negotiate with the parties to resolve competition concerns via consent agreement.  

On application under Section 92, the Commissioner may only seek certain enumerated remedies: for a transaction that has not closed, a prohibition order directing that the merger or part of the merger not proceed, or otherwise prohibit certain actions by the parties; for a transaction that has closed, an order directing the dissolution of the merger or disposition of assets or shares. On consent, the Commissioner and the parties can negotiate a wider range of remedies, including divestitures, behavioral commitments, or quasi-structural remedies. Consent agreements must be registered with the Competition Tribunal, and have the same force and effect as a Tribunal order.

Parties may proactively offer commitments to the agency to remedy identified competition concerns. However, the Bureau’s practice is to investigate transactions even in the case that a remedy is offered proactively, to confirm that the remedy will be effective (i.e., it will eliminate the substantial prevention or lessening of competition that would result from the merger), enforceable, and capable of timely implementation. Where the Commissioner determines that the pro-actively proposed remedy will not meet these criteria, he may challenge the transaction or negotiate a different remedy with the parties, as described previously.

If the Bureau is of the view that a notification is incorrect/incomplete, the Bureau will ask the party that submitted the notification to make appropriate changes. The statutory waiting period will begin to run only once the Commissioner has received the required information, including a certificate/affidavit indicating that the party or its duly authorized representative, after having examined the information being supplied, certifies under oath that the information is, to the best of his/her knowledge and belief, correct and complete in all material respects.

In the event that a merger otherwise subject to Part IX of the Act is completed without the parties having to comply with Part IX (e.g., by not filing notifications or being relieved from doing so), Subsection 65(2) of the Act could apply. Under that provision, every person who, without good and sufficient cause, the proof of which lies on that person, completes a notifiable transaction without complying with the filing obligation is liable on conviction to a maximum fine of CAD $50,000.

A transaction may not proceed unless the statutory waiting periods have expired or have been terminated by the Commissioner. If the parties complete their transaction before the end of the waiting period, without good and sufficient cause, the proof of which lies on that person, the court may prohibit the parties from doing anything directed toward implementing the proposed transaction, dissolve a completed transaction, dispose of assets or shares, order the payment of an administrative monetary penalty not exceeding CAD $10,000 per day or grant any other relief that the court considers appropriate. The Commissioner also may seek interim injunction relief to prohibit the parties from taking further steps to implement a merger.

Yes. The Commissioner may investigate and challenge any merger within one year of closing where he or she determines the transaction will cause a substantial lessening or prevention of competition (and in recent years, has both investigated and challenged non-notifiable mergers). The Bureau has announced its intention to intensify its efforts to identify anticompetitive mergers that fall below the notification thresholds. In July 2019, the Bureau challenged a merger between two providers of software used by oil and gas producers, which was not notified under Part IX.  

Mergers may be challenged only by the Commissioner, who can apply to the Competition Tribunal to delay or block closing and to unwind or seek other remedies for completed mergers for up to one year after their completion. If the transaction is likely to give rise to a substantial prevention or lessening of competition in a market, then the Commissioner may apply, under Part VIII of the Act, for a remedial order to be issued by the Competition Tribunal. The Competition Tribunal may exercise a number of powers available to it under the Act, including the power to prohibit or dissolve the merger or order divestiture of assets or shares.

Overall, Canada’s federal government is reviewing its competition policy and is considering significant amendments to the Act. These amendments may include significant changes to the merger review process, including longer limitation periods, lower "size of parties” thresholds, and lowering the standard for Bureau intervention.

In recent years, the Bureau has placed a particular emphasis on the digital economy and is closely monitoring mergers in the technology sector. The Bureau’s 2018 publication on Big Data provides some indication of the competitive features that it considers relevant to a review of a merger between technology companies. For example, the publication indicates that data privacy and security policies may be a relevant consideration, despite that privacy has not historically been an area of focus for the Bureau. 

As mentioned, the Bureau has also indicated that it is monitoring non-notifiable transactions with increased intensity and will be stepping up enforcement efforts against transactions it views as anticompetitive. Acquisitions of technology firms that may not trigger the Competition Act’s notification thresholds may be of particular interest to the Bureau in this regard.

In addition, the Bureau is increasingly coordinating with competition regulators in foreign jurisdictions in monitoring and reviewing transactions. Increased cooperation and collaboration could lead to an increase in enforcement activity both in Canada and abroad. Notably, the Bureau does not seek a waiver before sharing information with other competition authorities and it can be expected that the agency will increasingly choose to engage in such information sharing.

Finally, the Bureau continues to release new and revised guidance documents applicable to mergers. In 2011, the Bureau released its updated Merger Enforcement Guidelines, and in 2022 it released its updated Merger Review Process Guidelines. Since then, the Bureau has released additional Interpretation Guidelines pertaining to pre-merger notification filing requirements.

In light of the highly technical and evolving nature of the pre-merger notification regime in Canada, it is important that parties to a domestic or cross-border transaction with effects in, or implications for, Canada consult experienced antitrust counsel when assessing the application of the Act to their proposed transaction.