On July 21, 2011, the Competition Bureau (the "Bureau") released two new Interpretation Guidelines (the “Interpretation Guidelines”) setting out the Bureau's approach to notifiable transactions in the context of unsolicited or hostile transactions.
"Hostile Transactions Interpretation Guideline Number I: Bureau Policy on Disclosure of Information" replaces a June, 2010 policy statement and states that while the Bureau generally protects information provided to or obtained by it under the Act, in the context of a hostile transaction it is obliged to immediately advise a target entity of receipt of a notification filing from a bidder. This guideline also states that the Bureau will provide information typically disclosed in the context of a non‐hostile transaction (such as the complexity designation of the transaction, the anticipated timing of the Bureau's review, etc.) to both the target and the bidder in an equitable manner, subject to statutory restrictions on the disclosure of confidential information.
The second publication, "Hostile Transactions Interpretation Guideline Number 2: Bureau Policy on Running of Subsection 123(1) Waiting Periods" is new and explains how the Bureau will calculate applicable waiting periods in the context of an unsolicited bid for the acquisition of shares. When the Commissioner of Competition receives a notification of such a proposed transaction from the bidder, she will immediately notify the target, and the target will have 10 days to provide information prescribed under the Act. The applicable waiting period will start when the bidder submits its notification or, if a supplementary information request (a “SIR”) is issued, when the bidder certifies completeness with the SIR, regardless of when information is provided to the Bureau by the target. The new guideline also describes how applicable waiting periods will be affected if there is a change in status of an unsolicited bid.
For further information, the Interpretation Guidelines can be accessed on the Bureau's website here.