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Competition Act (R.S.C., 1985, c. C-34)

Full Document:  

Act current to 2022-06-20 and last amended on 2020-07-01. Previous Versions

PART VIIIMatters Reviewable by Tribunal (continued)

Mergers (continued)

Marginal note:Exception for joint ventures

  •  (1) The Tribunal shall not make an order under section 92 in respect of a combination formed or proposed to be formed, otherwise than through a corporation, to undertake a specific project or a program of research and development if

    • (a) a project or program of that nature

      • (i) would not have taken place or be likely to take place in the absence of the combination, or

      • (ii) would not reasonably have taken place or reasonably be likely to take place in the absence of the combination because of the risks involved in relation to the project or program and the business to which it relates;

    • (b) no change in control over any party to the combination resulted or would result from the combination;

    • (c) all the persons who formed the combination are parties to an agreement in writing that imposes on one or more of them an obligation to contribute assets and governs a continuing relationship between those parties;

    • (d) the agreement referred to in paragraph (c) restricts the range of activities that may be carried on pursuant to the combination, and provides that the agreement terminates on the completion of the project or program; and

    • (e) the combination does not prevent or lessen or is not likely to prevent or lessen competition except to the extent reasonably required to undertake and complete the project or program.

  • Marginal note:Limitation

    (2) For greater certainty, this section does not apply in respect of the acquisition of assets of a combination.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45

Marginal note:Exception where gains in efficiency

  •  (1) The Tribunal shall not make an order under section 92 if it finds that the merger or proposed merger in respect of which the application is made has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that will result or is likely to result from the merger or proposed merger and that the gains in efficiency would not likely be attained if the order were made.

  • Marginal note:Factors to be considered

    (2) In considering whether a merger or proposed merger is likely to bring about gains in efficiency described in subsection (1), the Tribunal shall consider whether such gains will result in

    • (a) a significant increase in the real value of exports; or

    • (b) a significant substitution of domestic products for imported products.

  • Marginal note:Restriction

    (3) For the purposes of this section, the Tribunal shall not find that a merger or proposed merger has brought about or is likely to bring about gains in efficiency by reason only of a redistribution of income between two or more persons.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45

Marginal note:Limitation period

 No application may be made under section 92 in respect of a merger more than one year after the merger has been substantially completed.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45
  • 2009, c. 2, s. 430

Marginal note:Where proceedings commenced under section 45, 49, 79 or 90.1

 No application may be made under section 92 against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which

  • (a) proceedings have been commenced against that person under section 45 or 49; or

  • (b) an order against that person is sought under section 79 or 90.1.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45
  • 2009, c. 2, s. 430

Marginal note:Conditional orders directing dissolution of a merger

  •  (1) The Tribunal may provide, in an order made under section 92 directing a person to dissolve a merger or to dispose of assets or shares, that the order may be rescinded or varied if, within a reasonable period of time specified in the order,

    • (a) there has occurred

      • (i) a reduction, removal or remission, specified in the order, of any relevant customs duties, or

      • (ii) a reduction or removal, specified in the order, of prohibitions, controls or regulations imposed by or pursuant to any Act of Parliament on the importation into Canada of an article specified in the order, or

    • (b) that person or any other person has taken any action specified in the order

    that will, in the opinion of the Tribunal, prevent the merger from preventing or lessening competition substantially.

  • Marginal note:When conditional order may be rescinded or varied

    (2) Where, on application by any person against whom an order under section 92 is directed, the Tribunal is satisfied that

    • (a) a reduction, removal or remission specified in the order pursuant to paragraph (1)(a) has occurred, or

    • (b) the action specified in the order pursuant to paragraph (1)(b) has been taken,

    the Tribunal may rescind or vary the order accordingly.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45

Marginal note:Interim order where no application under section 92

  •  (1) The Tribunal may issue an interim 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 in respect of which an application has not been made under section 92 or previously under this section, where

    • (a) on application by the Commissioner, certifying that an inquiry is being made under paragraph 10(1)(b) and that, in the Commissioner’s opinion, more time is required to complete the inquiry, the Tribunal finds that in the absence of an interim order a party to the proposed merger or any other person is likely to take an action that would substantially impair the ability of the Tribunal to remedy the effect of the proposed merger on competition under that section because that action would be difficult to reverse; or

    • (b) the Tribunal finds, on application by the Commissioner, that there has been a contravention of section 114 in respect of the proposed merger.

  • Marginal note:Notice of application

    (2) Subject to subsection (3), at least forty-eight hours notice of an application for an interim order under subsection (1) shall be given by or on behalf of the Commissioner to each person against whom the order is sought.

  • Marginal note:Ex parte application

    (3) Where the Tribunal is satisfied, in respect of an application for an interim order under paragraph (1)(b), that

    • (a) subsection (2) cannot reasonably be complied with, or

    • (b) the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest,

    it may proceed with the application ex parte.

  • Marginal note:Terms of interim order

    (4) An interim order issued under subsection (1)

    • (a) shall be on such terms as the Tribunal considers necessary and sufficient to meet the circumstances of the case; and

    • (b) subject to subsections (5) and (6), shall have effect for such period of time as is specified in it.

  • Marginal note:Duration of order: inquiry

    (5) The duration of an interim order issued under paragraph (1)(a) shall not exceed thirty days.

  • Marginal note:Duration of order: failure to comply

    (6) The duration of an interim order issued under paragraph (1)(b) shall not exceed

    • (a) ten days after section 114 is complied with, in the case of an interim order issued on ex parte application; or

    • (b) thirty days after section 114 is complied with, in any other case.

  • Marginal note:Extension of time

    (7) Where the Tribunal finds, on application made by the Commissioner on forty-eight hours notice to each person to whom an interim order is directed, that the Commissioner is unable to complete an inquiry within the period specified in the order because of circumstances beyond the control of the Commissioner, the Tribunal may extend the duration of the order to a day not more than sixty days after the order takes effect.

  • Marginal note:Completion of inquiry

    (8) Where an interim order is issued under paragraph (1)(a), the Commissioner shall proceed as expeditiously as possible to complete the inquiry under section 10 in respect of the proposed merger.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45
  • 1999, c. 2, ss. 24, 37

Marginal note:Right of intervention

 The attorney general of a province may intervene in any proceedings before the Tribunal under section 92 for the purpose of making representations on behalf of the province.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45

Marginal note:Advance ruling certificates

  •  (1) Where the Commissioner is satisfied by a party or parties to a proposed transaction that he would not have sufficient grounds on which to apply to the Tribunal under section 92, the Commissioner may issue a certificate to the effect that he is so satisfied.

  • Marginal note:Duty of Commissioner

    (2) The Commissioner shall consider any request for a certificate under this section as expeditiously as possible.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45
  • 1999, c. 2, s. 37

Marginal note:No application under section 92

 Where the Commissioner issues a certificate under section 102, the Commissioner shall not, if the transaction to which the certificate relates is substantially completed within one year after the certificate is issued, apply to the Tribunal under section 92 in respect of the transaction solely on the basis of information that is the same or substantially the same as the information on the basis of which the certificate was issued.

  • R.S., 1985, c. 19 (2nd Supp.), s. 45
  • 1999, c. 2, s. 37

General

Marginal note:Leave to make application under section 75, 76 or 77

  •  (1) Any person may apply to the Tribunal for leave to make an application under section 75, 76 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under that section.

  • Marginal note:Notice

    (2) The applicant must serve a copy of the application for leave on the Commissioner and any person against whom the order under section 75, 76 or 77, as the case may be, is sought.

  • Marginal note:Certification by Commissioner

    (3) The Commissioner shall, within 48 hours after receiving a copy of an application for leave, certify to the Tribunal whether or not the matter in respect of which leave is sought

    • (a) is the subject of an inquiry by the Commissioner; or

    • (b) was the subject of an inquiry that has been discontinued because of a settlement between the Commissioner and the person against whom the order under section 75, 76 or 77, as the case may be, is sought.

  • Marginal note:Application discontinued

    (4) The Tribunal shall not consider an application for leave respecting a matter described in paragraph (3)(a) or (b) or a matter that is the subject of an application already submitted to the Tribunal by the Commissioner under section 75, 76 or 77.

  • Marginal note:Notice by Tribunal

    (5) The Tribunal shall as soon as practicable after receiving the Commissioner’s certification under subsection (3) notify the applicant and any person against whom the order is sought as to whether it can hear the application for leave.

  • Marginal note:Representations

    (6) A person served with an application for leave may, within 15 days after receiving notice under subsection (5), make representations in writing to the Tribunal and shall serve a copy of the representations on any other person referred to in subsection (2).

  • Marginal note:Granting leave to make application under section 75 or 77

    (7) The Tribunal may grant leave to make an application under section 75 or 77 if it has reason to believe that the applicant is directly and substantially affected in the applicants’ business by any practice referred to in one of those sections that could be subject to an order under that section.

  • Marginal note:Granting leave to make application under section 76

    (7.1) The Tribunal may grant leave to make an application under section 76 if it has reason to believe that the applicant is directly affected by any conduct referred to in that section that could be subject to an order under that section.

  • Marginal note:Time and conditions for making application

    (8) The Tribunal may set the time within which and the conditions subject to which an application under section 75, 76 or 77 must be made. The application must be made no more than one year after the practice or conduct that is the subject of the application has ceased.

  • Marginal note:Decision

    (9) The Tribunal must give written reasons for its decision to grant or refuse leave and send copies to the applicant, the Commissioner and any other person referred to in subsection (2).

  • Marginal note:Limitation

    (10) The Commissioner may not make an application for an order under section 75, 76, 77 or 79 on the basis of the same or substantially the same facts as are alleged in a matter for which the Tribunal has granted leave under subsection (7) or (7.1), if the person granted leave has already applied to the Tribunal under section 75, 76 or 77.

  • Marginal note:Inferences

    (11) In considering an application for leave, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by it.

  • Marginal note:Inquiry by Commissioner

    (12) If the Commissioner has certified under subsection (3) that a matter in respect of which leave was sought by a person is under inquiry and the Commissioner subsequently discontinues the inquiry other than by way of settlement, the Commissioner shall, as soon as practicable, notify that person that the inquiry is discontinued.

  • 2002, c. 16, s. 12
  • 2009, c. 2, s. 431

Marginal note:Intervention by Commissioner

 If a person granted leave under subsection 103.1(7) or (7.1) makes an application under section 75, 76 or 77, the Commissioner may intervene in the proceedings.

  • 2002, c. 16, s. 12
  • 2009, c. 2, s. 432

Marginal note:Interim order

  •  (1) Subject to subsection (2), the Tribunal may, on ex parte application by the Commissioner in which the Commissioner certifies that an inquiry is being made under paragraph 10(1)(b), issue an interim order

    • (a) to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81, 84 or 90.1; or

    • (b) to prevent the taking of measures under section 82 or 83.

  • Marginal note:Limitation

    (2) The Tribunal may make the interim order if it finds that the conduct or measures could be of the type described in paragraph (1)(a) or (b) and that, in the absence of an interim order,

    • (a) injury to competition that cannot adequately be remedied by the Tribunal is likely to occur;

    • (b) a person is likely to be eliminated as a competitor; or

    • (c) a person is likely to suffer a significant loss of market share, a significant loss of revenue or other harm that cannot be adequately remedied by the Tribunal.

  • Marginal note:Consultation

    (3) Before making an application for an order to prevent the continuation of conduct that could be the subject of an order under any of sections 75 to 77, 79, 81, 84 or 90.1 by an entity incorporated under the Bank Act, the Insurance Companies Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act or a subsidiary of such an entity, the Commissioner must consult with the Minister of Finance respecting the safety and soundness of the entity.

  • Marginal note:Duration

    (4) Subject to subsections (5) and (6), an interim order has effect for 10 days, beginning on the day on which it is made.

  • Marginal note:Extension or revocation of order

    (5) The Tribunal may, on application by the Commissioner on 48 hours notice to each person against whom the interim order is directed,

    • (a) extend the interim order once or twice for additional periods of 35 days each; or

    • (b) rescind the order.

  • Marginal note:Application to Tribunal for extension

    (5.1) The Commissioner may, before the expiry of the second 35-day period referred to in subsection (5) or of the period fixed by the Tribunal under subsection (7), as the case may be, apply to the Tribunal for a further extension of the interim order.

  • Marginal note:Notice of application by Commissioner

    (5.2) The Commissioner shall give at least 48 hours notice of an application referred to in subsection (5.1) to the person against whom the interim order is made.

  • Marginal note:Extension of interim order

    (5.3) The Tribunal may order that the effective period of the interim order be extended if

    • (a) the Commissioner establishes that information requested for the purpose of the inquiry has not yet been provided or that more time is needed in order to review the information;

    • (b) the information was requested during the initial period that the interim order had effect, within the first 35 days after an order extending the interim order under subsection (5) had effect, or within the first 35 days after an order extending the interim order made under subsection (7) had effect, as the case may be, and

      • (i) the provision of such information is the subject of a written undertaking, or

      • (ii) the information was ordered to be provided under section 11; and

    • (c) the information is reasonably required to determine whether grounds exist for the Commissioner to make an application under any section referred to in paragraph (1)(a) or (b).

  • Marginal note:Terms

    (5.4) An order extending an interim order issued under subsection (5.3) shall have effect for such period as the Tribunal considers necessary to give the Commissioner a reasonable opportunity to receive and review the information referred to in that subsection.

  • Marginal note:Effect of application

    (5.5) If an application is made under subsection (5.1), the interim order has effect until the Tribunal makes a decision whether to grant an extension under subsection (5.3).

  • Marginal note:When application made to Tribunal

    (6) If an application is made under subsection (7), an interim order has effect until the Tribunal makes an order under that subsection.

  • Marginal note:Confirming or setting aside interim order

    (7) A person against whom the Tribunal has made an interim order may apply to the Tribunal in the first 10 days during which the order has effect to have it varied or set aside and the Tribunal shall

    • (a) if it is satisfied that one or more of the situations set out in paragraphs (2)(a) to (c) existed or are likely to exist, make an order confirming the interim order, with or without variation as the Tribunal considers necessary and sufficient to meet the circumstances, and fix the effective period of that order for a maximum of 70 days, beginning on the day on which the order confirming the interim order is made; and

    • (b) if it is not satisfied that any of the situations set out in paragraphs (2)(a) to (c) existed or is likely to exist, make an order setting aside the interim order.

  • Marginal note:Notice

    (8) A person who makes an application under subsection (7) shall give the Commissioner 48 hours written notice of the application.

  • Marginal note:Representations

    (9) At the hearing of an application under subsection (7), the Tribunal shall provide the applicant, the Commissioner and any person directly affected by the interim order with a full opportunity to present evidence and make representations before the Tribunal makes an order under that subsection.

  • Marginal note:Prohibition of extraordinary relief

    (10) Notwithstanding section 13 of the Competition Tribunal Act, an interim order shall not be appealed or reviewed in any court except as provided for by subsection (7).

  • Marginal note:Duty of Commissioner

    (11) When an interim order is in effect, the Commissioner shall proceed as expeditiously as possible to complete the inquiry arising out of the conduct in respect of which the order was made.

  • 2002, c. 16, s. 12
  • 2017, c. 26, s. 13
 
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