Amendments to the Notifiable Transactions Regulations made under the Competition Act (the Regulations) came into force on February 2, 2010. These amendments reflect the legislative amendments to the Competition Act passed in March, 2009. The highlights include the creation of a uniform notification form for all transactions, changes to the prescribed information that must be supplied to the Commissioner, and stipulations as to how certain asset and revenue values are to be calculated for amalgamations.
The 2009 amendments had already created a single, thirty-day initial waiting period for all transactions (extendable by issuance of a "second request," just as in the United States), and eliminated the choice between a fourteen-day or a forty-two-day waiting period that had existed under the old regime. Under the amended Regulations, the former distinction between a "short form" notification and a "long form" notification has also been removed in favour of a single list of prescribed information for all notifiable transactions. As a result, all transactions will now require the provision of certain information that previously was supplied only for "long forms." The additional requirements are:
- a copy of each legal document, or the most recent draft of that document if it is not yet executed, that is to be used to implement the proposed transaction; and
- all studies, surveys, analyses and reports that were prepared or received by a senior officer for the purpose of evaluating or analysing the proposed transaction with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into new products or geographic regions and, if not otherwise set out in that document, the names and titles of the individuals who prepared the document and the date on which it was prepared. (In the United States, for the equivalent Hart-Scott-Rodino filing, these types of documents are normally referred to as the "4(c) documents" - the Canadian language has also been changed to conform with that in the Hart-Scott-Rodino Act, such that a single search will now suffice.)
The amended Regulations also describe how the asset and revenue values are to be calculated to determine whether an amalgamation satisfies the new notification test, which establishes a second "size of parties" threshold for amalgamations (each of at least two of the amalgamating parties must have assets or gross revenues exceeding C$70 million).
The 2009 Competition Act amendments also permit the indexing of the C$70 million "size of transaction" threshold. Although the Minister responsible can reduce the threshold to C$67 million in keeping with the slight dip in Canadian prices in 2009, he has not as yet taken action in this regard.