7 - Canada

Summary

There have been two developments of particular note in Canadian merger jurisprudence and practice. The first relates to the Competition Tribunal's understanding of the Commissioner's statutory burden when seeking an interim injunction to prevent a proposed transaction from being consummated to afford the Commissioner more time to complete her review. The second concerns the Commissioner's recently issued position on proposed remedies for problematic mergers.

Scope of interim injunctions to prevent consummation of proposed transactions

If the Commissioner has not brought an application for a Section 92 order seeking to enjoin the consummation of a proposed transaction but is concerned that the parties may, after the expiry of the applicable waiting period, take steps to consummate their transaction, Section 100 allows the Commissioner to apply for an interim order. If granted, the Tribunal can issue an order “forbidding any person named in the application from doing any act or thing that it appears to the Tribunal may constitute or be directed toward the completion or implementation of a proposed merger” for up to 10 days on an ex parte basis or up to 30 days on notice to the parties (extendable for up to 60 days on subsequent application), provided the following are satisfied:

• the Commissioner certifies that a Section 10(1)(b) inquiry into the proposed transaction is being carried out under the Act and that, in the Commissioner's opinion, more time is required to complete the inquiry; and

• the Tribunal finds that, in the absence of the interim order, its ability to remedy any anti-competitive harm caused by the merger would be substantially impaired.