As discussed in our prior blog post titled “Competition Tribunal Dismisses Request for Interim Interim Order”, the Competition Tribunal (the “Tribunal”) previously found that it does not have the power to grant “interim interim” relief pending its decision for “interim” relief. While the Tribunal’s decision was initially upheld following an emergency motion before a single judge of the Federal Court of Appeal (the “FCA”), the jurisdictional question before it was recently overturned following a hearing before a full panel of FCA judges. In particular, this panel of judges confirmed that the Tribunal has the jurisdiction to temporarily block mergers (i.e., grant “interim interim”) where the Commissioner meets certain evidentiary and legal burdens.

This blog post includes some relevant background information, discusses the FCA’s recent decision and summarizes the implications for businesses going forward.

Background

On March 9, 2021, SECURE Energy Services Inc. (“Secure”) and Tervita Corporation (“Tevita”) announced a transaction to combine their respective midstream infrastructure and environmental solutions businesses (the “Transaction”).

On June 29, 2021, the Commissioner of Competition (the “Commissioner”) filed a Notice of Application pursuant to section 92 of the Competition Act (the “Act”) alleging that the Transaction would result in a substantial prevention or lessening of competition in various markets in British Columbia (the “Section 92 Application”). This application is scheduled to be heard starting on May 9, 2022.

At the same time he filed the Section 92 Application, the Commissioner also filed a Notice of Application for Interim Order pursuant to section 104 of Act for an order preventing the merging parties from proceeding with the Transaction until the Section 92 Application is finally disposed of (the “Section 104 Application”). In this regard, the Commissioner alleged that, in the absence of an interim order, Secure would be able to increase prices and otherwise limit competition in the relevant market, which would cause irreparable harm before the Section 92 Application was dealt with.

Finally, because the applicable waiting period had expired and the merging parties had advised the Commissioner that they intended to close the Transaction shortly after midnight on July 2, 2021, the Commissioner requested an “interim interim” order preventing the parties from closing the Transaction until the motion seeking an “interim” order (i.e., the Section 104 Application) was heard and decided.

On July 1, 2021, Chief Justice Crampton issued his Reasons and Order in respect of the Commissioner’s request for “interim interim” relief. Specifically, Chief Justice Crampton concluded that the Tribunal “does not have the jurisdiction to issue the specific interim and unprecedented relief sought by the Commissioner” because the interim injunction provisions in the Act are “sufficiently detailed and specific”, provide a “complete code” and do not contemplate the type of “interim interim” order being sought by the Commissioner. This decision was upheld by a single judge of the FCA about three hours later, following which the merging parties closed the Transaction.

Prior Decisions Overturned

Notwithstanding that the Transaction had closed and the Commissioner’s appeal on the merits was moot, the FCA, at the request of the Commissioner, concluded that it would consider whether the Tribunal has the jurisdiction to grant “interim interim” relief to delay a proposed merger until an application for “interim” relief under section 104 of the Act can be heard and decided.

The Commissioner’s appeal was heard on January 19, 2022 and, on February 9, 2022, the FCA issued its Reasons for Judgement overturning the prior decisions. In summary, the FCA undertook a formal statutory interpretation analysis that considered the text, context and purpose of section 104 of the Act – something it noted had not been done by the Tribunal. Based on this analysis, the FCA concluded that section 104, when properly interpreted, provides the Tribunal with jurisdiction to grant “interim interim” relief.

According to the FCA, the “key provision” to its analysis is subsection 104(1) of the Act, which provides as follows:

If an application has been made for an order under [Part VIII of the Act] … the Tribunal, on application by the Commissioner … may issue any interim order that it considers appropriate, having regard to the principles ordinarily considered by superior courts when granting interlocutory or injunctive relief. [emphasis added]

In the FCA’s view, there is nothing in either the “context of section 104” or the “goal of encouraging completion of merger review before closing” which “suggests that the broad power of the Tribunal to issue ‘any interim order that it considers appropriate’ should be read more narrowly than a plain textual reading suggests” – with the result that this provision captures both “interim” orders and “interim interim” orders.

Implications For Businesses

The Competition Bureau (the “Bureau”) issued a News Release welcoming the FCA’s decision and confirming that the Commissioner will continue to use all available tools to protect competition and the public interest. As such, it is likely that this decision will embolden the Commissioner to seek “interim interim” orders in an effort to temporarily prevent merging parties from closing potentially problematic transactions until after the Commissioner’s applications for “interim” orders have been heard and decided. That being said, the Commissioner still bears the high evidentiary and legal burdens to demonstrate that “interim interim” relief ought to be granted on a case-by-case basis (as is the case for “interim” relief).

As noted above, in exercising its discretion to issue an order under section 104 of the Act (including both “interim” orders and “interim interim” orders), the Tribunal is directed to consider “the principles ordinarily considered by superior courts when granting interlocutory or injunctive relief”. The Tribunal has consistently applied the tripartite test for injunctive relief set out by the Supreme Court of Canada in RJR-MacDonald – including in the context of the Section 104 Application. Accordingly, the Tribunal may issue an order under this provision if the Commissioner proves the following on a balance of probabilities: (a) there is a serious issue to be tried; (b) irreparable harm would ensue if an interim order is not granted; and (c) the balance of convenience favours granting the interim order.

Recent case law has imposed a high standard with respect to balance of convenience – something that the Commissioner acknowledged in a prior speech and the Bureau acknowledged in its submission responding to Senator Howard Wetston’s invitation to comment on Canada’s competition policy framework. For example, in its decision in respect of the Section 104 Application, which involved an application for an “interim” order, the Tribunal stated as follows:

… in a merger case where the respondent provides clear and non-speculative evidence of the extent of harm that it would suffer if the relief sought by the Commissioner is granted, the Commissioner must provide at least some “rough” or initial sense of the irreparable harm he alleges would result if that relief is not granted.

With the assistance of staff in the … Bureau and outside experts, the Commissioner should be able to provide at least rough estimates, supported by evidence, of (i) the range of price effects that are likely to result from the merger; (ii) a range of plausible elasticities; (iii) a “ballpark” estimate of the deadweight loss; and (iv), where applicable, a basic sense of the extent to which non-price effects are likely to result from the merger…. 

Moving forward, the FCA’s decision does provide the Commissioner with an additional tool to potentially prevent a transaction from closing. In complex transactions, merging parties should account for this possibility at the agreement and planning stages, including, for example, by ensuring that an appropriate outside date is included in the agreement and∕or expressly allowing the purchaser to enter into a timing agreement with the Commissioner if necessary.