Canada: Blakes Competitive Edge™: January 2021 Update

Welcome to the January 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

• While the number of completed merger reviews by the Bureau during COVID-19 remains significantly below 2019 levels, there has been an uptick from the reduced activity levels seen earlier in the pandemic, with an 89 per cent increase in the monthly average of completed merger reviews since the beginning of Q3 2020.
• The Governor-in-Council blocked the acquisition of TMAC Resources Inc. by Shandong Gold Mining Co. through the issuance of an order under the Investment Canada Act.
• The Competition Tribunal has directed that economic experts for the Commissioner and the parties testify concurrently ("hot-tubbing") for the first time in The Commissioner of Competition v. Parrish & Heimbecker, Limited.

Merger Monitor

December 2020 Highlights

• 21 merger reviews completed
• Primary industries: mining, quarrying and oil and gas extraction (38 per cent); transportation and warehousing (10 per cent)
• Zero consent agreements (remedies) filed
• 11 transactions received an Advance Ruling Certificate (52 per cent), while 10 transactions received a No Action Letter (48 per cent)

Annual 2020 Highlights

• 161 merger reviews completed
• Primary industries: mining, quarrying and oil and gas extraction (18 per cent), manufacturing (16 per cent), real estate and rental and leasing (14 per cent), finance and insurance (14 per cent), and wholesale trade (seven per cent)
• Three consent agreements (remedy) filed (two per cent)
• 76 transactions received an Advance Ruling Certificate (47 per cent), while 82 transactions received a No Action Letter (51 per cent)

Merger Reviews Completed in 2020, by Primary Industry

Monthly Merger Reviews Completed, 2019 and 2020

Competition Tribunal Protocols

Hot-Tubbing Allowed by Tribunal for the First Time

• On January 5, 2021, the Competition Tribunal issued a Direction in the matter of The Commissioner of Competition v. Parrish & Heimbecker, Limited, which will require economic expert witnesses for the Commissioner and the parties to testify in a concurrent evidence session, also known as "hot-tubbing". This will be the first such use of the process since it was set out in the Competition Tribunal's Rules in 2002. Under the Directive: (1) before the hearing, the parties, their counsel, and the experts shall confer and agree on a list of issues to be addressed by the experts, and the order and manner in which the questions on those issues will be asked, and (2) during the hearing, each expert will provide a general overview of their opinion and explain what, in their view, the principal areas of disagreement are with the other side's expert(s). The hearing is scheduled for January 19-21, 2021.

Enforcement Activity

Bureau Closes Investigation of Postmedia and Torstar

• On January 7, 2021, the Bureau announced that it closed its investigation into Postmedia and Torstar for a potential violation of the conspiracy provisions of the Competition Act, concluding that no further action was warranted. In November 2017, the Bureau commenced an investigation of a transaction between Postmedia and Torstar involving the swap of 41 newspapers and announcements by each party on the same day the transaction was closed that 36 of those papers would be closed.

Non-Enforcement Activity

Bureau Publishes Highlights from its Digital Enforcement Summit

• On December 18, 2020, the Bureau issued a summary report that outlines four expert panel discussions from the Bureau's first Digital Enforcement Summit. The expert panel discussions focused on (i) the role of digital intelligence in the pre-investigation stage and advances in the process of evidence gathering; (ii) how competition enforcement agencies are adapting to digital investigations; (iii) the rise of new technological solutions and tools to support enforcement in the digital age; and (iv) the challenges agencies face with the rapid pace of change in the digital economy and evolving evidentiary burdens in court. The Bureau intends to host annual events providing enforcers an opportunity to share best practices, address emerging issues and to explore new solutions and tools.

Investment Canada Act

Government of Canada Blocks TMAC Sale to Shandong Gold Mining Co. Ltd.

• On December 21, 2020, TMAC Resources Inc. (TMAC) announced that the Governor-in-Council issued an order under the Investment Canada Act to Shandong Gold Mining Co. Limited and its affiliate blocking its proposed acquisition of TMAC. On January 5, 2021, TMAC and Agnico Eagle Mines Limited announced that they have entered into an agreement for Agnico Eagle Mines Limited to acquire TMAC.

Highlights

• Information regarding Investment Canada Act decisions for November 2020 and January – November 2020 have not yet been published and will instead be included in next month's Competitive Edge newsletter.

Blakes Notes