The Commissioner of Competition has challenged a merger in which the largest hazardous waste landfill operator in north-eastern British Columbia acquired a company that had just received regulatory approval to build a competing landfill.
This is an interesting case for a number of reasons:
- It is likely an efficiencies case (i.e., a case where the Respondents raise the efficiencies defence), but one with a twist: the Respondents will argue that keeping the new landfill out of the market (by allowing the merger to stand) is more efficient than allowing it to begin to operate competitively;
- It is a “prevent” case; i.e., the alleged harm is that the merger prevents a competitor from emerging in the market – most cases have been based on an alleged substantial lessening of competition;
- It seeks dissolution (unwinding) of the merger as the primary remedy, with divestiture as an alternative remedy;
- It overreaches by seeking an additional remedy that is not available under the statute (an order forcing the acquirer to provide notice of proposed mergers that would not be notifiable under the Competition Act); and
- It is the first merger case in many years where the Commissioner has accepted written undertakings rather than insisting on a formal “hold separate” order.
We have prepared a note that discusses the implications of these points in more detail. Click here to read it.