Canada’s new merger review regime, enacted in March 2009, allows the Commissioner of Competition to “stop the clock” during her review of a merger by issuing a supplemental information request (SIR) before the expiry of an initial 30-day pre-merger waiting period. Since the issuance of an SIR extends the waiting period until 30 days after the parties have complied with its terms, the Commissioner is not under the same pressure to limit the scope of SIRs that she was with production orders under the prior regime. Before March 2009, a requirement for court approval and a fixed waiting period of 42 days imposed practical limits on document production and review. These constraints – which limited the time available both for parties to collect documents and for the Commissioner and her staff to review them – have now been removed.
In recent public statements, the Commissioner has attempted to assure the business community that the application of Canada’s new review process will not mirror the much-criticized U.S. process on which it is based, and that she will be more “surgical” than her American counterparts in targeting document production. Nevertheless, parties to complex mergers should expect to receive broader and more demanding document production orders, which will affect review timing and increase compliance costs. This is a trend we have already begun to see.
The SIR process also provides the Commissioner with much more control over the timing of the review process than was previously the case.
In these circumstances, antitrust considerations take on greater strategic significance – particularly in complex cases in which timing is an issue – and reinforce the need to involve experienced antitrust counsel in the early stages of merger planning.