Canada Transportation Act (S.C. 1996, c. 10)

Review of Mergers and Acquisitions

Marginal note:Notice

• 53.1 (1) Every person who is required to notify the Commissioner of Competition under subsection 114(1) of the Competition Act of a proposed transaction that involves a transportation undertaking shall, at the same time as the Commissioner is notified and, in any event, not later than the date by which the person is required to notify the Commissioner,

  • (a) give notice of the proposed transaction to the Minister; and

  • (b) in the case of a proposed transaction that involves an air transportation undertaking, also give notice of the transaction to the Agency.

• Marginal note:Information

  (2) A notice given to the Minister or to the Agency shall, subject to the regulations, contain the information required under subsection 114(1) of the Competition Act. The notice shall also contain any information with respect to the public interest as it relates to national transportation that is required under any guidelines that shall be issued and published by the Minister. After receipt of a notice, the Minister may require the person who has given the notice to provide further information.

• Marginal note:Guidelines

  (2.1) The guidelines referred to in subsection (2) shall be elaborated in consultation with the Competition Bureau and shall include factors that may be considered to determine whether a proposed transaction raises issues with respect to the public interest as it relates to national transportation.

• Marginal note:Not statutory instruments

  (3) The guidelines referred to in subsection (2) are not statutory instruments within the meaning of the Statutory Instruments Act.

• Marginal note:No public interest issues

  (4) If the Minister is of the opinion that the proposed transaction does not raise issues with respect to the public interest as it relates to national transportation, the Minister shall, within 42 days after a person gives notice under subsection (1), give notice of the opinion to that person, in which case sections 53.2 and 53.3 do not apply in respect of that transaction.

• Marginal note:Public interest issues

  (5) If the Minister is of the opinion that the proposed transaction raises issues with respect to the public interest as it relates to national transportation, the Minister may direct the Agency to examine those issues under section 49 or appoint and direct any person to examine those issues under section 7.1 of the Department of Transport Act.

• Marginal note:Report

  (6) The Agency or person, as the case may be, shall report to the Minister within 150 days after being directed under subsection (5), or within any longer period that the Minister may allow.

Marginal note:Prohibition

• 53.2 (1) No person shall complete a proposed transaction referred to in subsection 53.1(1) unless the transaction is approved by the Governor in Council and, in the case of a transaction that involves an air transportation undertaking, the Agency determines that the transaction would result in an undertaking that is Canadian as defined in subsection 55(1).

• Marginal note:Commissioner’s report

  (2) The Commissioner of Competition shall within 150 days after the Commissioner is notified of the proposed transaction under subsection 114(1) of the Competition Act, or within any longer period that the Minister may allow, report to the Minister and the parties to the transaction on any concerns regarding potential prevention or lessening of competition that may occur as a result of the transaction.

• Marginal note:Report to be made public

  (3) The report shall be made public immediately after its receipt by the Minister.

• Marginal note:Concerns relating to public interest and competition

  (4) After receipt of the Commissioner’s report and any report given under subsection 53.1(6), but before the Minister makes a recommendation for the purposes of subsection (7), the Minister shall

  • (a) consult with the Commissioner regarding any overlap between any concerns that the Minister has in respect of the proposed transaction with regard to the public interest as it relates to national transportation and any concerns in respect of the transaction that are raised in the Commissioner’s report; and

  • (b) request the parties to the transaction to address

    • (i) with the Minister any concerns that the Minister has in respect of the transaction with regard to the public interest as it relates to national transportation, and

    • (ii) with the Commissioner any concerns that the Commissioner has regarding potential prevention or lessening of competition that may occur as a result of the transaction.

• Marginal note:Measures to address concerns

  (5) The parties to the transaction shall

  • (a) after conferring with the Minister regarding concerns referred to in subparagraph (4)(b)(i), inform the Minister of any measures they are prepared to undertake to address those concerns; and

  • (b) after conferring with the Commissioner regarding concerns identified under subparagraph (4)(b)(ii), inform the Commissioner of any measures they are prepared to undertake to address those concerns.

  The parties may propose revisions to the transaction.

• Marginal note:Preconditions to recommendation

  (6) Before making a recommendation for the purposes of subsection (7), the Minister shall obtain the Commissioner’s assessment of the adequacy of any undertaking proposed by the parties to address the concerns that have been identified under subparagraph (4)(b)(ii) and the effects of any proposed revisions to the transaction on those concerns.

• Marginal note:Approval of Governor in Council

  (7) If the Governor in Council is satisfied that it is in the public interest to approve the proposed transaction, taking into account any revisions to it proposed by the parties and any measures they are prepared to undertake, the Governor in Council may, on the recommendation of the Minister, approve the transaction and specify any terms and conditions that the Governor in Council considers appropriate. The Governor in Council shall indicate those terms and conditions that relate to potential prevention or lessening of competition and those that relate to the public interest as it relates to national transportation.

• Marginal note:Variation of terms and conditions

  (8) On application by a person who is subject to terms and conditions specified under subsection (7), the Governor in Council may, on the recommendation of the Minister, vary or rescind the terms and conditions. If the terms and conditions to be varied or rescinded affect competition, the Minister shall consult with the Commissioner before making the recommendation.

• Marginal note:Commissioner’s representations

  (9) If the Minister directs the Agency under section 49 to inquire into any matter or thing to assist the Minister in making a recommendation under subsection (7) or (8), the Agency shall give notice of the inquiry to the Commissioner and allow the Commissioner to make representations to the Agency.

• Marginal note:Compliance with terms and conditions

  (10) Every person who is subject to terms and conditions shall comply with them.

Marginal note:Canadian

53.3 The Agency shall determine whether a proposed transaction referred to in subsection 53.1(1) that involves an air transportation undertaking would result in an undertaking that is Canadian as defined in subsection 55(1).

Marginal note:Order of divestiture — application by Minister

• 53.4 (1) If a person contravenes subsection 53.2(1) or (10) with respect to a term or condition that relates to the public interest as it relates to national transportation, a superior court may, on application by the Minister, order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Minister shall notify the Commissioner of Competition before making an application.

• Marginal note:Order of divestiture — application by Commissioner

  (2) If a person contravenes subsection 53.2(10) with respect to a term or condition that relates to potential prevention or lessening of competition, a superior court may, on application by the Commissioner, order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Commissioner shall notify the Minister before making an application.

Marginal note:Regulations

53.5 The Governor in Council may, on the recommendation of the Minister, make regulations

• (a) specifying information required in a notice under subsection 53.1(1); and

• (b) exempting classes of transactions from the application of sections 53.1 to 53.3.

Marginal note:Offence — subsection 53.1(1)

• 53.6 (1) Every person who contravenes subsection 53.1(1) is guilty of an offence and is liable

  • (a) on conviction on indictment, to a fine not exceeding $50,000; or

  • (b) on summary conviction, to a fine not exceeding $25,000.

• Marginal note:Offence — subsection 53.2(1) or (10)

  (2) Every person who contravenes subsection 53.2(1) or (10) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years or to a fine not exceeding $10,000,000, or to both.

• Marginal note:Continuing offence

  (3) If an offence under subsection 53.2(10) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.

• Marginal note:Officers, etc., of corporations

  (4) If a corporation commits an offence under subsection (1) or (2), any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

• Marginal note:Sections 174 and 175 do not apply

  (5) Sections 174 and 175 do not apply in respect of an offence committed under subsection (1) or (2).

Review of Arrangements Involving Two or More Transportation Undertakings Providing Air Services

Marginal note:Definitions

53.7 The following definitions apply in sections 53.71 to 53.84.

arrangement

arrangement means an agreement or arrangement, other than a transaction referred to in subsection 53.1(1), involving two or more transportation undertakings providing air services, as defined in subsection 55(1), to, from or within Canada, to coordinate on any aspect of the operation or marketing of such services, including prices, routes, schedules, capacity or ancillary services and to share costs or revenues or other resources or benefits. (entente)

party

party means any person who proposes to enter into or has entered into an arrangement for which a notice has been given under subsection 53.71(1). (partie)

Marginal note:Notice

• 53.71 (1) Every person who proposes to enter into an arrangement may notify the Minister of that arrangement. If the person so notifies the Minister, they shall at the same time provide a copy of the notice to the Commissioner of Competition.

• Marginal note:Information

  (2) A notice given under subsection (1) shall contain any information that is required under the guidelines that are issued and published by the Minister, including information that relates to considerations respecting competition.

• Marginal note:Guidelines

  (3) The guidelines referred to in subsection (2) shall be developed in consultation with the Competition Bureau and shall include factors that may be considered by the Minister to determine whether a proposed arrangement raises significant considerations with respect to the public interest under subsection (6) and, if applicable, to render a final decision regarding the arrangement under subsection 53.73(8).

• Marginal note:Not statutory instruments

  (4) The guidelines referred to in subsection (2) are not statutory instruments within the meaning of the Statutory Instruments Act.

• Marginal note:Further information

  (5) The Minister or the Commissioner may, after receiving a notice or copy of a notice under subsection (1), require any party to provide further information.

• Marginal note:Minister’s response

  (6) The Minister shall, within 45 days after the day on which he or she receives the notice with the information referred to in subsection (2), inform the parties and the Commissioner as to whether, in his or her opinion, the proposed arrangement raises significant considerations with respect to the public interest.

• Marginal note:No significant public interest considerations

  (7) If the Minister is of the opinion that the proposed arrangement does not raise significant considerations with respect to the public interest, sections 53.72 to 53.79 do not apply to that arrangement.

• Marginal note:Significant public interest considerations

  (8) If the Minister is of the opinion that the proposed arrangement raises significant considerations with respect to the public interest, the arrangement is subject to the review process set out in section 53.73.

Marginal note:Prohibition

53.72 If a notice has been given under subsection 53.71(1), the proposed arrangement shall not be completed without the Minister’s authorization under subsection 53.73(8).

Marginal note:Review process

• 53.73 (1) The Minister, or a person designated by the Minister, shall examine the proposed arrangement, if it is subject to the review process.

• Marginal note:Commissioner’s report

  (2) The Commissioner of Competition shall, within 120 days after the day on which he or she receives a copy of the notice under subsection 53.71(1) with the information referred to in subsection 53.71(2), report to the Minister and the parties on any concerns regarding potential prevention or lessening of competition that may occur as a result of the proposed arrangement.

• Marginal note:Summary

  (3) Unless a notice is withdrawn or is deemed to have been withdrawn under section 53.8, the Commissioner shall make public a summary of the conclusions of the report that does not include any confidential information.

• Marginal note:Communicating concerns

  (4) The Minister shall, within 150 days after the day on which he or she receives the notice with the information referred to in subsection 53.71(2), report to the parties on any concerns with respect to the public interest that may occur as a result of the proposed arrangement and provide a copy of the report to the Commissioner.

• Marginal note:Measures to address concerns

  (5) The parties shall, within 30 days after the day on which they receive the report under subsection (4), respond in writing to the Minister, addressing any concerns with respect to the public interest and competition raised by the Minister and the Commissioner and informing the Minister, among other things, of any measures they are prepared to undertake to address those concerns. The parties may propose amendments to the arrangement.

• Marginal note:Preliminary decision

  (6) The Minister shall, after consulting with the Commissioner and within 45 days after the day on which he or she receives the response from the parties under subsection (5), render a preliminary decision regarding the proposed arrangement and specify any terms and conditions relating to the public interest and competition under which an authorization could be given under subsection (8).

• Marginal note:Response to preliminary decision

  (7) The parties shall, within 30 days after the day on which they receive the Minister’s preliminary decision, provide a response in writing to the Minister and the response may include proposed amendments to the terms and conditions specified in the decision.

• Marginal note:Final decision

  (8) The Minister shall, within 30 days after the day on which he or she receives a response from the parties under subsection (7), render a final decision and make public a summary of that decision that does not include any confidential information. The Minister may, if satisfied that the proposed arrangement is in the public interest, authorize it and specify any terms and conditions relating to the public interest and competition that the Minister considers appropriate.