Welcome to the November 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 activity in 2023 remains slow despite increased activity in October with 157 mergers completed through the end of the month. This is a 6.6% decrease over the number of reviews completed in the same period in 2022 (168).

  • The Bureau publishes a draft bulletin on the 2022 amendments to the abuse of dominance provisions.

  • The Bureau publishes its 2022 to 2023 annual report.

Merger Monitor

October 2023 Highlights

  • 21 merger reviews completed

  • Primary Industries: manufacturing (29%); real estate and rental and leasing (19%); finance and insurance (10%); health care and social assistance (10%); and retail trade (10%)

  • One consent agreement (remedy) registered

  • 13 transactions received an Advance Ruling Certificate (62%), seven transactions received a No Action Letter (33%)

January – October 2023 Highlights

  • 157 merger reviews completed

  • Primary industries: manufacturing (22%); mining, quarrying, and oil and gas extraction (17%); real estate and rental and leasing (13%); finance and insurance (11%); retail trade (7%)

  • Four consent agreements (remedies) registered

  • One judicial decision

  • 75 transactions received an Advance Ruling Certificate (48%), 75 transactions received a No Action Letter (48%)

Merger Reviews Completed Year to Date in 2023 by Primary Industry

Merger Enforcement Activity

Competition Bureau reaches consent agreement with Global Fuels regarding its acquisition of Greenergy’s Canadian retail fuel business

  • On October 26, 2023, the Bureau announced that it entered into a consent agreement with Global Fuels regarding its acquisition of Greenergy’s Canadian retail fuel business. Out of the 241 retail fuel and convenience locations, the Bureau found that the transaction would lessen competition in the sale of diesel and gasoline to retail customers in Chatham and Picton, Ontario, respectively. To resolve the Bureau’s concerns, Global Fuels agreed to assign a motor fuel supply agreement in each of these local areas to a buyer approved by the Commissioner of Competition.

Other Enforcement Activity

Criminal charges laid against two individuals in a bid-rigging case in Outaouais

  • On October 23, 2023, criminal charges were laid against two individuals in the Court of Quebec in connection with bid-rigging for public road and culvert work on Guy-Lafleur Highway in the Gatineau region in 2021. The accused individuals allegedly conspired to undermine the competitive process by agreeing to rig bids submitted in response to a call for tenders from the ministère des Transports du Québec.

Non-Enforcement Activity

Competition Bureau publishes and seeks feedback on draft bulletin on the 2022 amendments to the abuse of dominance provisions

Commissioner Boswell remarks on Canada’s competition history

  • On October 26, 2023, Commissioner of Competition (Commissioner) Matthew Boswell gave a speech at the Canadian Bar Association's Competition Law Fall Conference focusing on leveraging competition to increase prosperity in Canada. Referring to the Bureau’s recently published report on the decline of competitive intensity in Canada, the Commissioner highlighted several measures that could enhance competitive intensity, including reforming the Act, enhancing the Bureau’s enforcement efforts and skills, and taking a whole-of-government approach to ensure public policies support competition. Additionally, the Commissioner pointed to the Bureau’s newly introduced Digital Enforcement and Intelligence Branch as an example of its ability and willingness to keep up with emerging technologies and practices, such as the application of artificial intelligence and machine learning in the digital era.

Competition Bureau publishes 2022–23 Annual Report

  • On November 8, 2023, the Bureau released its 2022–23 Annual Report, summarizing the Bureau’s enforcement and advocacy efforts throughout the 2022 to 2023 fiscal year ended March 31, 2023. Among other items, the Bureau highlighted: (i) its continued crackdown on numerous businesses to prevent deceptive marketing practices; (ii) its ongoing work with the Canadian government to review and amend the Act; (iii) its role as host of the Competition and Green Growth Summit; (iv) its three-part report on the Bureau’s Digital Health Care Market Study; and (v) its market study of grocery store competition in Canada.

Investment Canada Act

Non-Cultural Investments

September 2023 Highlights

  • Zero reviewable investment approvals and 89 notifications filed (72 filed for acquisitions and 17 for the establishment of a new Canadian business)

  • Country of ultimate control: United States (48%); United Kingdom (9%); France (4%); Japan (4%)

January – September 2023 Highlights

  • Four reviewable investment approvals and 896 notifications filed (671 filed for acquisitions and 221 for the establishment of a new Canadian business)

  • Country of ultimate control: U.S. (51%); U.K. (7%); France (6%); Austria (4%); Germany (3%); India (3%)

Cultural Investments

Q4 2022 Highlights

  • One reviewable investment approval and six notifications filed (five for acquisitions and one for establishment of a new Canadian business)

  • Country of origin of investor: U.S. (43%); U.K. (29%); Japan (14%); Ukraine (14%)

2022 Highlights

  • 11 reviewable investment approvals and 33 notifications filed (23 for acquisitions and 10 for establishment of a new Canadian business)

  • Country of origin of investor: U.S. (52%); China (14%); Sweden (7%); U.K. (7%); Japan (5%)