Welcome to the May 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

  • Merger review activity continues to pick up from the significant reduction resulting from COVID-19 observed in 2020 (particularly in the second quarter and through the summer months), with the number of completed merger reviews through the end of April (79) being 30 per cent higher than the number of completed reviews through the same period in 2020 (61). Indeed, merger activity in the first four months of 2021 exceeded pre-pandemic levels, being 36 per cent higher than the number of completed reviews through the same period in 2019 (58).

  • Competition Bureau releases updated guidelines regarding the Bureau’s approach to collaborations between competitors.

Merger Monitor

April 2021 Highlights

  • 20 merger reviews completed

  • Primary industries: finance and insurance (25 per cent); real estate and rental and leasing (15 per cent); and manufacturing (15 per cent)

  • Zero consent agreements (remedies) filed

  • 15 transactions received an Advance Ruling Certificate (75 per cent), while five transactions received a No Action Letter (25 per cent)

January – April 2021 Highlights

  • 79 merger reviews completed

  • Primary industries: manufacturing (24 per cent); finance and insurance (15 per cent); real estate and rental and leasing (13 per cent); and mining, quarrying and oil and gas extraction (13 per cent)

  • Zero consent agreements (remedies) filed

  • 53 transactions received an Advance Ruling Certificate (67 per cent), while 26 transactions received a No Action Letter (33 per cent)

Non-Enforcement Activity

Competition Bureau releases updated guidelines regarding the Bureau’s approach to collaborations between competitors

  • On May 6, 2021, the Competition Bureau published the final version of its revised Competitor Collaboration Guidelines (Guidelines). This is the first update to the Guidelines, which were initially published in 2009. The updated Guidelines signal several key changes to the Bureau’s enforcement practices for competitor collaborations. The most notable change in the updated Guidelines is to confirm the Bureau’s position that joint purchasing agreements among competitors – such as wage-fixing and no-poach agreements – do not violate the criminal competitor collaboration provisions of the Canadian Competition Act (Act). For more information, see our May 2021 Blakes Bulletin: Canadian Competition Bureau Releases Updated Competitor Collaboration Guidelines.

Competition Bureau encourages interested parties to share views with multilateral working group on analysis of pharmaceutical mergers

  • On May 11, 2021, the Competition Bureau released a statement encouraging stakeholders, including health policy experts, economists, attorneys, scientists, health care practitioners, academics and consumers to share ideas with the Multilateral Pharmaceutical Merger Task Force, an international working group established to develop updated approaches for analyzing the effects of pharmaceutical mergers. The U.S. Federal Trade Commission will collect submissions on behalf of the task force, which is seeking input from stakeholders to inform its review of a variety of issues related to mergers in the pharmaceutical industry, including potential new or refreshed theories of harm, the evaluation of the effects of a merger on innovation and potential remedies to resolve competition concerns.

Speeches

Fostering inclusive growth through competition

  • On April 29, 2021, Commissioner Matthew Boswell made remarks to attendees of the CBA Competition Law Spring Online Symposium. In his speech, Commissioner Boswell discussed how competition can contribute to Canada’s economic recovery from COVID-19, and how it can reduce barriers and support inclusive growth across the country. Commissioner Boswell also alluded to the fact that the Bureau will consider potential harm to marginalized groups when choosing cases and focusing its advocacy.

Investment Canada Act

January 2021 Highlights

  • For non-cultural investments: zero reviewable investment approvals and 92 notifications filed (70 for acquisitions and 22 for the establishment of a new Canadian business)

  • Country of origin of investor (non-cultural): U.S. (67 percent), UK (four per cent), China (three per cent), and Hong Kong (three per cent)