Welcome to the April issue of Blakes Competitive Edge, 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
- The Bureau completes 15 merger reviews in March 2023, 48% fewer than the number completed in March 2022 (29) and 44% fewer than the number completed in March 2021 (27).
- The Bureau enters into a consent agreement with Isologic Innovative Radiopharmaceuticals to resolve abuse of dominance allegations.
- WestJet's proposed acquisition of Sunwing is approved by the Governor in Council.
- Competition Bureau filing fees increase to C$82,719.12.
Merger Monitor
March 2023 Highlights
- 15 merger reviews completed
- Primary industries: finance and insurance (27%); mining, quarrying, and oil and gas extraction (27%); manufacturing (20%); real estate and rental and leasing (7%); administrative and support, waste management and remediation services (7%); information and cultural industries (7%); other services (except public administration) (7%)
- Zero consent agreements (remedies) filed
- Seven transactions received an Advance Ruling Certificate (47%); seven transactions received a No Action Letter (47%)
January – March 2023 Highlights
- 41 merger reviews completed
- Primary industries: mining, quarrying, and oil and gas extraction (27%); manufacturing (24%); finance and insurance (17%); real estate and rental and leasing (7%); retail trade (7%); utilities (5%); administrative and support, waste management and remediation services (5%); transportation and warehousing (2%); information and cultural industries (2%); other services (except public administration) (2%)
- One consent agreement (remedy) filed
- 18 transactions received an Advance Ruling Certificate (44%); 21 transactions received a No Action Letter (51%)
Merger Reviews Completed in 2023 by Primary Industry
Enforcement Activity
Competition Bureau reaches consent agreement with Isologic Innovative Radiopharmaceuticals Inc. relating to alleged abuse of dominance
- On March 24, 2023, the Bureau announced that it had entered into a consent agreement with Isologic Innovative Radiopharmaceuticals Inc. (Isologic) to resolve the Bureau's concerns that Isologic's contracting practices in the supply of radiopharmaceuticals for single-photon emission computed tomography, including the use of exclusivity provisions, contravened the abuse of dominance provisions of the Competition Act. Pursuant to this agreement, Isologic agreed to cease using terms which require its customers to purchase certain radiopharmaceuticals exclusively from Isologic, or to purchase a minimum quantity of such products from Isologic based on a percentage of the customer's total purchases of any such product. Isologic will also include a term in any multi-year contracts with these customers permitting the customers to terminate their contract prior to its expiration.
Engineering firm ordered to pay a small fine following seventh Quebec bid-rigging settlement
- On March 23, 2023, a seventh engineering firm was ordered to pay a small fine for bid-rigging related to consulting engineering services for municipal infrastructure contracts in Quebec. The payment is part of a settlement filed with the Superior Court of Quebec in relation to a bid-rigging scheme that targeted municipal infrastructure contracts in the cities of Québec and Montréal between 2002 and 2011. This is the seventh settlement resulting from the Bureau's ongoing investigation. The seven engineering firms have been ordered to pay a total of C$12,535,000 for their respective roles in the bid-rigging scheme.
Proposed acquisition of Sunwing by WestJet approved by the Governor in Council
- On April 8, 2023, the Governor in Council, on the recommendation of the Minister of Transport, approved the proposed acquisition of Sunwing Airlines Inc. and Sunwing Vacations Inc. (together as "Sunwing") by WestJet Airlines Ltd., notwithstanding the Commissioner of Competition's report that the transaction, as proposed, would likely result in substantial anti-competitive effects. The approval was subject to terms and conditions that are expected to mitigate the impact of some of the alleged competition concerns and provide some public interest benefits for travellers. The major consideration in the Minister's recommendation to approve the acquisition was that the deal would prevent the imminent threat to Sunwing's financial viability and potential exit from the market.
Non-Enforcement Activity
Competition Bureau announces increase to the filing fee for merger reviews
- On March 31, 2023, the Bureau announced that the filing fee for merger reviews was set to increase from C$77,452.36 to C$82,719.12. The new filing fee came into effect on April 1, 2023. The fee applies to entities filing a pre-merger notification and/or requesting an Advance Ruling Certificate.
Competition Bureau announces the appointment of Dr. Markus von Wartburg as its new Chief Economist
- On March 21, 2023, the Bureau announced the appointment of Dr. Markus von Wartburg as its new Chief Economist for a one-year term starting on April 3, 2023. Dr. von Wartburg will provide advice on economic matters relating to the Bureau's investigations, litigation and advocacy work, as well as competition policy matters. Dr. von Wartburg replaces Dr. Lilla D. Csorgo in this role.
Competition Bureau publishes its Annual Plan for 2023–2024
- On April 17, 2023, the Bureau published its Annual Plan for 2023–2024 (Plan), which focuses on affordability for Canadians. To accomplish this, the Bureau is seeking to promote and protect competitive markets for everyday goods and services, such as groceries. The Bureau's Plan also includes an increased focus on enforcement in digital marketplaces.
Competition Bureau publishes The Deceptive Marketing Practices Digest — Volume 6
- On April 17, 2023, the Bureau published the most recent edition of its Deceptive Marketing Practices Digest (Digest), focusing on the use of scarcity cues and drip pricing, among other topics. The last edition of the Digest was published in March 2020.
Notable News
Rogers-Shaw merger closes
- On April 3, 2023, Rogers Communications Inc. (Rogers) announced that it had completed its merger with Shaw Communications Inc. (Shaw). The deal, valued at C$26-billion, received the final regulatory approval on March 31, 2023 from Industry Minister François-Philippe Champagne, which was required to transfer Shaw-owned Freedom Mobile's wireless licenses to Videotron. Videotron's C$2.85-billion acquisition of Freedom Mobile was also finalized on April 3, 2023. In connection with granting his approval, the Minister also announced that he had secured a number of "legally binding commitments" from each of Rogers and Videotron with significant financial penalties should they fail to comply with their respective commitments.
Investment Canada Act
Non-Cultural Investments
December 2022 Highlights
- Zero reviewable investment approvals and 61 notifications filed (48 for acquisitions and 13 for the establishment of a new Canadian business)
- Country of origin of investor: U.S. (56%); France (5%); Norway (3%); India (3%)
Annual 2022 Highlights
- Four reviewable investment approvals and 1,030 notifications filed (771 for acquisitions and 259 for the establishment of a new Canadian business)
- Country of origin of investor: U.S. (55%); United Kingdom (7%); France (5%); India (3%)
Blakes Notes
- On Tuesday, April 4, 2023, Blakes hosted a seminar on Sweeping Changes to Canada's Competition and Foreign Investment Rules. Blakes partners were joined by the Honourable Navdeep Bains, Vice-Chair of Global Investment Banking at CIBC and former Minister of Innovation, Science and Industry, and Edward M. Iacobucci, Law Professor at the University of Toronto and author of the discussion paper on amendments to the Competition Act commissioned by Senator Howard Wetston.
- Browse our thought-leadership insights from the Competition, Antitrust & Foreign Investment group to learn more.
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