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Blakes Competitive Edge™: September 2022 Update – Antitrust, EU Competition

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Welcome to the September issue of Blakes Competitive
, 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 activity in 2022 remains strong, with 145 merger reviews
    completed through the end of August. This is a 0.7% decrease over
    the number of reviews completed in the same period in 2021

  • Commissioner of Competition enters into three consent
    agreements relating to acquisitions of retail gas stations

  • Performance Measurement and Statistics Report shows a
    substantial increase in merger review activity in the Bureau’s
    2021-22 fiscal year

  • Federal Court of Appeal upholds order granting the
    defendants’ motion to strike the plaintiffs’ statement of
    claim, while cautioning that Bureau policy statements “do not
    tell us what a statute means”

Merger Monitor

August 2022 Highlights

  • 16 merger reviews completed

  • Primary industries: mining, quarrying, and oil and gas
    extraction (25%); retail trade (25%); wholesale trade (13%);
    administrative and support, waste management and remediation
    services (13%)

  • 3 consent agreements (remedies) filed

  • Seven transactions received an Advance Ruling Certificate
    (44%), six transactions received a No Action Letter (38%)

January – August 2022 Highlights

  • 144 merger reviews completed

  • Primary industries: real estate and rental and leasing (19%);
    manufacturing (14%); mining, quarrying, and oil and gas extraction
    (13%); wholesale trade (12%)

  • 6 consent agreements (remedies) filed

  • 78 transactions received an Advance Ruling Certificate (54%),
    61 transactions received a No Action Letter (42%)


Merger Enforcement

Competition Bureau reaches agreement with Couche-Tard
regarding acquisition of Wilsons gas stations

  • On August 29, 2022, the Commissioner of Competition
    (Commissioner) entered into a consent agreement with Alimentation
    Couche-Tard Inc. (Couche-Tard) related to Couche-Tard’s
    proposed acquisition of Wilsons, which operates and supplies retail
    gas stations under various brands throughout the Maritime
    provinces. Following the completion of its review, the Bureau
    concluded that the proposed transaction would likely substantially
    lessen or prevent competition in the supply of retail gasoline in
    certain markets in Nova Scotia, New Brunswick, Newfoundland and
    Labrador, and Prince Edward Island. To resolve the Bureau’s
    concerns, Couche-Tard has agreed to divest one Couche-Tard gas
    station and 46 Wilsons sites and supply agreements.

Competition Bureau reaches agreements with Parkland and
Federated Co-operatives Limited regarding acquisition of Husky gas

  • On August 24, 2022, the Commissioner entered into consent
    agreements with Parkland Corporation (Parkland) and Federated Co-operatives Limited (FCL) related
    to each company’s proposed acquisition of Husky retail gas
    stations. To resolve the Bureau’s concern that the proposed
    transactions would likely result in a substantial lessening of
    competition in the supply of fuel to retail customers in certain
    local markets, Parkland agreed to divest six retail gas stations in
    Hamilton, Ontario, and FCL agreed to divest one retail gas station
    in Gimli, Manitoba. Additionally, the parties agreed that Parkland
    would acquire three Husky stations and four dealer contracts
    instead of FCL.

Competition Tribunal rules that questions related to
network outages are relevant in Rogers/Shaw

  • On August 26, 2022, the Competition Tribunal ordered in Commissioner of Competition v
    Rogers Communications Inc. and Shaw Communications Inc.
    questions related to network outages are relevant pursuant to the
    pleading in the proceeding. The order was made after oral
    submissions from the Commissioner and respondent Rogers
    Communication Inc.

Non-Enforcement Activity

Competition Bureau releases Performance Measurement
& Statistics Report for 2021-22 fiscal year

The Bureau released their Performance Measurement & Statistics
for the 2021-2022 fiscal year (April 1, 2021-March 31,
2022). Highlights of the PMSR include:

  • Bureau received 246 pre-merger notifications filings pursuant
    to section 114(1) of the Competition Act and Advance
    Ruling Certificate (ARC) requests pursuant to section 102 of the
    Competition Act. This represents an increase of 67 filings
    from the 2020-2021 fiscal year.

  • Nine Supplementary Information Requests were issued for
    concluded matters pursuant to section 114(2) of the Competition
    This is relatively consistent with previous years (11
    were issued in 2020-2021; nine in 2019-2020).

  • 100% of the 180 non-complex merger reviews were completed
    within the Bureau’s service standard, with the average duration
    of non-complex merger reviews being 9.12 days in 2021-2022, down
    from 10.21 days in 2020-2021.

  • 94.5% of the 57 complex merger reviews were completed within
    the Bureau’s service standard, an increase from 84% in
    2020-2021, with the average complex merger review being 38.38 days,
    a decrease from 46.06 days in 2020-2021.

Section 36 Remedies under the Competition Act

  • In Mohr v National Hockey
    , 2022 FCA 145, the Federal Court of Appeal
    (FCA) upheld a Federal Court judgement granting the
    respondents’ motion to strike the appellants’ statement of
    claim and denying the appellants’ motion for leave to amend.
    The case involves allegations that the respondent hockey leagues
    conspired to limit opportunities of hockey players in Canadian
    major junior and professional hockey leagues contrary to sections
    45 and 48 of the Competition Act, giving rise to an action
    for damages under section 36 of the Competition Act. While
    the FCA upheld the Federal Court’s decision, the FCA found that
    the Federal Court’s reasons included three errors, including
    its reliance on Competition Bureau policy statements in
    interpreting the Competition Act. The FCA cautioned that
    such policy statements are extrinsic evidence that “do not
    tell us what a statute means”.

Bureau Events

  • On September 8 and 9, 2022, the Competition Bureau hosted two
    virtual public information sessions to inform the public about
    recent amendments to the Competition Act. The sessions
    discussed the recent amendments to the Act and future updates to
    the Bureau guidance, and included a question and answer period. The
    Bureau intends to post a recording of the session to their website
    in due course. These recordings have not yet been published and
    will instead be included in next month’s Competitive
    newsletter. For more information on the amendments,
    please see our June 24 bulletin.

  • On September 20, 2022, the Bureau will host the Competition and
    Green Growth Summit, which will explore tools and strategies
    available to governments and competition agencies in the transition
    to a greener economy. The Summit will feature three panels,
    including (i) A Green Future: Competition Policy and
    Competitiveness, (ii) Enforcers Roundtable: Perspective from
    Competition Agencies, and (iii) Competition Enforcement in a
    Greener Economy. Interested persons can register for the session online.

Investment Canada Act

Non-Cultural Investments

July 2022 Highlights

  • Zero reviewable investment approvals and 87 notifications filed
    (61 for acquisitions and 26 for the establishment of a new Canadian

  • Country of origin of investor: U.S. (48%); U.K. (11%); China
    (6%); France (5%); India (3%); Sweden (2%)

January – July 2022

  • One reviewable investment approval and 656 notifications filed
    (486 for acquisitions and 169 for the establishment of a new
    Canadian business)

  • Country of origin of investor: U.S. (55%); U.K. (7%); France
    (5%); China (3%); India (3%); Hong Kong (3%)


Blakes Notes

  • On Thursday August 25, Best Lawyers Canada 2023 named Blakes as
    the Law Firm of the Year in Competition and Antitrust Law. Thank
    you to our peers and Best Lawyers for recognizing the strength of
    our work in this area. Read more here.

  • On Wednesday, October 12, the Blakes Competition, Antitrust
    & Foreign Investment group will host a webinar as part of the
    Blakes Canada/U.S. Legal Update series. Details of the event will
    be shared soon. If you would like to register your interest in
    attending, please email us.

  • To read more thought leadership insights from
    the Competition, Antitrust & Foreign Investment group, please
    click here.

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© 2020 Blake, Cassels & Graydon LLP.

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