GCR 100 - 17th Edition

Canada

10 January 2017

Canada

Competition enforcement remains strong in Canada and keeps its bar busy, even as the Competition Bureau undergoes reforms and focuses on compliance.

Elite

Led by Brian A Facey, BLAKE CASSELS & GRAYDON’s practice counts 18 partners, including recently promoted David Rosner, and 14 associates. This past year, the firm has handled a flood of mega deals, which have often needed clearance from multiple enforcers, including Canada’s Competition Bureau.

Blakes is currently providing competition counsel to Bell Canada on its proposed acquisition of Manitoba Telecom Services for C$3.9 billion, as well as to Agrium on its US$36-billion merger with Potash. Partner Julie Soloway is took the lead as Canadian competition counsel to Office Depot in its US$6.3 tie-up with Staples. Both the Canadian Competition Bureau and the US Federal Trade Commission challenged the merger, which the office supply companies abandoned after a US federal court granted a preliminary injunction. The matter was not fully litigated in Canada. The firm also advised Superior Plus in Canada on its C$932-million proposed acquisition of Canexus – the first time the Competition Bureau has cleared a deal based solely on novel efficiencies defence.

In non-merger work, Blakes represented Nestlé against criminal charges that the Swiss company fixed prices with other chocolate makers, and won access to Hershey’s leniency application. The Public Prosecution Service of Canada entered a stay of the proceedings in November 2015 against Nestlé and its former president Robert Leonidas, who were the last remaining criminal defendants in the case. The firm is also representing Mitsui and others in Ontario, Quebec and British Columbia class actions alleging price fixing in the ocean shipping industry.

The team at DAVIES WARD PHILLIPS & VINEBERG boasts agency experience that few can match. Practice head George N Addy is a former competition commissioner; key partner Adam Fanaki once oversaw merger control at the Competition Bureau; busy litigator Charles Tingley was deputy general counsel of New Zealand’s Commerce Commission before rejoining the team in 2012.

Davies has a reputation for advising and representing a wide range of international and domestic clients across the full spectrum of competition and foreign investment review. Recently, the firm advised Mars Canada in precedent-setting litigation defining the government’s disclosure obligations in criminal cartel proceedings stemming from cartel immunity and leniency applications. Additionally, Davies acted for Google in the Competition Bureau’s inquiry into the company’s search and advertising practices. The firm currently represents the Canadian Real Estate Association in its intervention in the competition bureau’s abuse of dominance proceedings against the Toronto Real Estate Board.

In merger work, Davies advised Pfizer in the pharmaceutical company’s proposed US$160 billion tie-up with Allergan, which was dropped after a change in US tax law, and United Technology in its US$9 billion sale of Sikorsky Aircraft. The firm also represented Staples in connection with the competition bureau’s bid to block to the office supplier’s proposed purchase of Office Depot.

STIKEMAN ELLIOTT’s competition practice is led by partner Paul Collins, who returned to the firm in 2012 after two years of heading up the Competition Bureau’s mergers branch. Other key partners include Katherine L Kay, one of Canada’s top competition litigators. Susan M Hutton and Lawson A W Hunter both have active regulatory practices in Ottawa, while Shawn CD Neylan in Toronto covers everything from bureau and internal investigations of potential violations, to mergers and the attendant concerns about national security and foreign investment.

Merger control lawyers at Stikeman often work on the bureau’s abuse of dominance probes. But for criminal and litigation work, Kay is in charge. She and fellow litigators Eliot Kolers, Danielle Royal and Montreal-based Yves Martineau advise clients in multiple investigations and class actions, including several auto parts companies accused of colluding with rivals to fix prices.

This past year, Stikeman acted for Marriott International in its US$13 billion purchase of Starwood Hotels & Resorts, as well as Lowe’s in its acquisition of Canadian home improvement chain Rona for US$2.4 billion. The firm represents Bayer in its proposed US$66 billion acquisition of agrochemical giant Monsanto; Potash in its agri-merger with Agrium; and Japanese construction and mining equipment manufacturer Komatsu in its proposed purchase of Joy Global, which makes surface and underground mining equipment.

The antitrust and competition team at BENNETT JONES is a leader in cartel defence and litigation. Partner Andrew Little recently returned to the firm after a two-year secondment with the Department of Justice as general counsel at the Competition Bureau. The firm was counsel to the Commissioner of Competition in his successful application against the Toronto Real Estate Board (TREB) for allegedly abusing its dominant position. After five years of litigation, including a requested appeal to the Supreme Court of Canada and two trials before the Competition Tribunal, the tribunal granted the commissioner’s application in April 2016 and prohibited TREB from continuing its anticompetitive conduct.

On the merger front, Bennett Jones pushed back on the Competition Bureau’s attempt to block Parkland’s C$378 million acquisition of Pioneer Energy assets. The agency and the petrol retailers settled in March 2016, following the first ever mediation before the Competition Tribunal – with Parkland having to divest fewer and less valuable assets than the the bureau had demanded before the litigation. The firm also represented Starwood Hotels & Resorts in its tie-up with Marriott International, and the Computer Sciences Corporation in its US$8.5 billion merger with the Enterprise Services segment of Hewlett Packard. Bennett Jones was Canadian counsel to Canadian Pacific Railway in the company’s approximately US$31 billion unsolicited bid for Norfolk Southern, which ultimately was dropped after US regulatory opposition.

MCCARTHY TÉTRAULT has entrenched itself as one of the strongest operators in Quebec, and this is reflected by its stellar dual-language competition team. The firm’s roster of partners includes Dominic Thérien, who recently spent two years investigating criminal cases at the Competition Bureau, and Madeleine Renaud, regarded as one of Quebec’s best competition lawyers. In Toronto, practice head Donald Houston handles litigation and deal work, while Oliver Borgers is a merger control and foreign investment specialist.

McCarthy represents Dow Chemical in the company’s mega-merger with DuPont, as well as International Paper in connection with its acquisition of Weyerhaeuser’s fluff pulp business. The firm also acted for Molson Coors in its purchase of the Miller beer portfolio divested from the Anheuser Busch-InBev/SABMiller deal, and for Enbridge in its C$37 billion merger with Spectra Energy. In non-merger work, McCarthy successfully defended distributor ITWAL against criminal price-fixing charges in the bureau’s chocolate case. It also defended Direct Energy against abuse of dominance allegations brought by the commissioner.

MCMILLAN’s talent includes David W Kent, James B Musgrove, A Neil Campbell, Guy Pinsonnault and Casey W Halladay – a line-up with years of agency and litigation experience under their belts. The firm has served as defence counsel on some of the most significant antitrust class action cases of the past year including those relating to optical disc drives and car carriers. McMillan lawyers also have a dozen separate retainers in the various auto parts cases, and are counsel to Olco and Suncor in retail gasoline class actions. Additionally, the firm is Canadian defence counsel to MasterCard in relation to class action lawsuits filed against MasterCard, Visa and many Canadian banks in Quebec, Ontario and British Columbia for allegedly fixing interchange fees.

On the deal side, McMillan represented SABMiller in its US$107 billion tie-up with Anheuser-Busch InBev, which Canada’s competition authority conditionally cleared in May 2016; the companies divested certain SABMiller brands to Molson Coors in another US$12 billion transaction. The firm also acted for security systems company Tyco in its US$18 billion combination with Johnson Controls, as well as JAB Holdings in its US$13.9 billion acquisition of Keurig.

Michelle A Lally’s team at OSLER HOSKIN & HARCOURT is up there with the best. Peter L Glossop has worked there for 30 years, and like Lally, focuses most of his time on merger control, counselling and foreign investment work. Peter Franklyn is another veteran competition practitioner doing both litigation and advisory work, and younger partner Shuli Rodal has extensive experience in all aspects of competition law and foreign investment law. Christopher Naudie heads the firm’s competition litigation and investigations practice.

In the past year, Osler represented Whistler Blackcomb Holdings in its C$1.4 billion acquisition by Vail Resorts, as well as China Molybdenum in its agreement to acquire Anglo American’s Brazilian niobium and phosphates businesses for US$1.5 billion. The firm also acted for Canadian Oil Sands during a hostile bid by Suncor; Calloway Real Estate Investment Trust in its C$1.16 billion acquisition of SmartCentres; and Bank of Montreal in its acquisition of GE Capital’s North American transportation finance business. In non-deal work, the team is defending Royal Philips against class action claims that it conspired to fix the price of cathode ray tubes. The firm has also advised the Royal Bank of Canada in Canadian class actions pursuing damages for foreign exchange rate-rigging.

Partners Dany H Assaf and Omar Wakil co-head the TORYS competition team, which consists of eight partners and five associates, including new addition Bill McNamara. The firm’s former chair of competition R Jay Holsten retired from practice in December 2015.

Torys currently represents five separate clients in the Canadian aspects of the global auto parts cartel investigations, and is defending them against follow on class actions brought across Canada. On the deal front, the team, led by Assaf, is representing DuPont in its US$130 merger with the Dow Chemical, and Abbott Laboratories in its proposed US$4.88 billion acquisition of medical diagnostics company Alere. The firm is also exclusive Canadian competition counsel to Abbott in the company’s pending US$25 billion purchase of St Jude Medical. Meanwhile, Wakil is heading the team acting for Parkland in its proposed C$965 million acquisition of the majority of CST Brands’ Canadian assets.

AFFLECK GREENE MCMURTRY’s antitrust practice dates back to 1992 when several partners left Fasken Martineau to set up a litigation and competition law boutique. Practice head W Michael G Osborne says AGM is still the only boutique in Canada to offer the full menu of competition work. While cartel, conduct, and class action defence are their bread and butter, the team acts for complainants, advises on business practices, and even files the occasional merger notification. Osborne and partner Michael Binetti are busy with capacitors, optical disk drives, credit cards, and auto parts. On the civil side, Osborne defended two music publishers in a price maintenance claim by Stargrove Entertainment, and founder and partner emeritus Donald Affleck QC defended the Toronto Real Estate Board against an abuse-of-dominance lawsuit brought by the bureau. David Vaillancourt will be promoted to partner in 2017, and the team brought over associate Kyle Taylor from Quinn Emanuel in 2016.

Robert S Russell leads the competition team at BORDEN LADNER GERVAIS, Canada’s largest law firm. The practice is active in defending clients in several class actions, particularly in regard to alleged price-fixing of capacitors and air cargo services. The firm secured a precedent-setting pretrial victory in 2015 for British Airways, one of the three remaining defendants in the cargo class action, when an Ontario Superior Court of Justice ruling reduced the size of the plaintiff class. Highly regarded partner Subrata Bhattacharjee leads the team defending Deutsche Bank in Canadian competition class action proceedings alleging that 15 global banks colluded to set foreign exchange rates. The firm is also acting for Loblaw in the bureau’s high-profile abuse of dominance investigation. Partner Davit Akman joined the firm in January 2016.

Chris Hersh leads the antitrust team at CASSELS BROCK & BLACKWELL, which consists of five partners and one associate. Merger control and counselling are a particular specialty, but they are also handling domestic and cross-border cartel investigations. Significant deals over the past year include the US$1.1 billion merger between US-based miner Thompson Creek and Canadian mining company Centerra Gold, and the US$2.2 billion tie-up between commercial real estate company Cushman & Wakefield and rival DTZ. Cassels Brock also acted for Pioneer Energy in connection with the sale of its retail and wholesale gasoline business to Parkland Fuel, including during the litigation the Competition Bureau initiated to challenge the deal.

DENTONS’ Canadian antitrust group, led by Sandy Walker, consists of seven partners and six associates. Over the past few years, the firm has been retained by clients involved in the Canadian foreign exchange and capacitors class actions, while also working on a string of high-profile deals. Dentons acted for Shaw Communications in its C$1.6 billion acquisition of Mid-Bowline Group and its wholly owned subsidiary, WIND Mobile. Additionally, it counselled Bayer in the pharmaceutical company’s sale of its diabetes care business to Panasonic for US$1.15 billion, and advised the Katz Group, one of Canada’s largest privately owned enterprises, on the sale of its retail pharmacy chain Rexall Health to McKesson for C$3 billion.

Anthony Baldanza and Huy Do lead a team of nine competition law partners and four associates at FASKEN MARTINEAU DUMOULIN. In October 2016, Antonio Di Domenico rejoined the firm’s Toronto office, after a two-year special appointment as counsel to the competition commissioner. Class action practice head Paul Martin and partner Geoffrey Cowper represent Royal Bank of Canada in the interchange fee litigation, and the firm defends several auto parts makers in class actions and bureau enforcement proceedings. Cowper and partner Andrew Borrell are lead trial counsel for Microsoft in a competition class action, which is expected proceed to an oral hearing for cross-examinations in the spring of 2017.

With the addition of Howard Wetston in April 2016, GOODMANS has the only competition team featuring two former commissioners of the Canadian Competition Bureau – although Wetston was tapped for Canada’s Senate as GCR 100 went to press. The firm hired practice leader Calvin S Goldman QC from Blakes back in January 2014. Goldman, along with counsel and long-time bureau mergers chief Richard Annan, recently promoted partner Michael Koch and associate Jesse-Ross Cohen represent the Vancouver Airport Authority in the bureau’s investigation into whether the nonprofit corporation, which is responsible for operating the Vancouver International Airport, abused its dominance. Recently, the firm acted for the National Hockey League in the bureau’s review of the Rogers/NHL broadcasting agreement. On the deal side, Goodmans advised the Mark Anthony Group in its US$350 million sale of certain ready-to-drink, cider and craft brew brands, including Mike’s Hard Lemonade. Goodmans currently acts for Spectra Energy in its tie-up with Enbridge.

Kevin Ackhurst heads NORTON ROSE FULBRIGHT’s competition group in Canada, which is made up of 10 partners and 11 associates. Partner Michael Brown leads the team defending Citigroup against follow-on class action allegations that the bank conspired to manipulate foreign exchange rates. Meanwhile, partner Eric Lefebvre heads the team acting for Ventilex in the bureau’s investigation into bid-rigging in the tendering of private sector ventilation contracts for residential high-rise buildings. On the deal side, Norton Rose represented Canadian home improvement chain Rona in its merger with Lowe’s, and Bombardier Transportation in its US$1.5 billion deal with Caisse de dépôt et placement du Québec.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Elite

Blake Cassels & Graydon

Brian A Facey

18 partners

14 associates

Brian A Facey

Jason Gudofsky

Navin Joneja

Robert E Kwinter

Deborah Salzberger

Julie Soloway

Agrium, Bell Canada, Dow Chemical Canada, Encana, Exxon Mobil, General Electric Company, Johnson Electric Holdings, LafargeHolcim, Office Depot, Samsung, Shell Canada, Suncor Energy, Superior Plus

Davies Ward Phillips & Vineberg

George N Addy

12 partners

3 associates

George N Addy

Anita Banicevic

John D Bodrug

Adam Fanaki

Mark Katz

Elisa Kearney

Sandra A Forbes

Rogers Communications, Google, Mars, Canadian Real Estate Association, Burger King, Pfizer, Staples, GE Capital

Stikeman Elliott

Paul Collins

8 partners

2 counsel

7 associates

Paul Collins

Lawson A W Hunter

Susan M Hutton

Katherine L Kay

Bayer, Manitoba Telecom Services, Lowe's, Potash Corporation of Saskatchewan, Allergan, Air Canada, Marriott, Canadian National Offshore Oil Company

Highly recommended

Bennett Jones

Randal Hughes

Melanie Aitken

9 partners

9 associates

Randal Hughes

John F Rook QC

Apple, Parkland Fuel Corporation, Starwood Hotels & Resorts Worldwide, Canadian Pacific Railway, Computer Sciences Corporation, American Airlines, Brewers Retail, The Nielsen Company, Commissioner of Competition

McCarthy Tétrault

Donald Houston

8 partners

11 associates

2 counsel

Oliver Borgers

Donald Houston

Madeleine Renaud

Dominic Thérien

Dow Chemical, Molson Coors, Enbridge, Fairmont Hotels, Spectra Energy, Unilever, Bell Media, Bouygues Energies, International Paper, Glencore International, Kraft Foods, BCE, Reebok-CCM, VersaCold, ITWAL

McMillan

A Neil Campbell

James B Musgrove

14 partners

7 associates

A Neil Campbell

Casey W Halladay

James B Musgrove

Guy Pinsonnault

MasterCard, Suncor, Olco Petroleum, Toyo Tire, Sumitomo, JAB Holdings, Coty

Osler Hoskin & Harcourt

Michelle Lally

9 partners

6 associates

Peter Franklyn

Peter L Glossop

Michelle Lally

Manulife Financial, TELUS Corporation, Shoppers Drug Mart, Valeant Pharmaceuticals, Procter & Gamble, Canadian Bankers Association, Simon & Schuster, Canadian Oil Sands

Torys

Dany H Assaf

Omar Wakil

8 partners

5 associates

Dany H Assaf

Omar Wakil

Linda M Plumpton

DuPont, Abbott Laboratories, Blackberry, GTech, Hachette, National Bank, Reliance Comfort, Tervita, Canadian Tire, Sanofi, Abbvie, RBC, TD Bank, CPPIB, OMERS, Husky

Recommended

Affleck Greene McMurtry

W Michael G Osborne

3 partners

1 counsel

5 associates

W Michael G Osborne

Hitachi, Toronto Real Estate Board, Pioneer, JPMorgan, Calsonic

Borden Ladner Gervais

Robert S Russell

5 partners

6 associates

Subrata Bhattacharjee

Robert S Russell

Loblaw, Samsung Electronics Canada, Hewlett-Packard, Netflix, Deutsche Bank, British Airways, Husky Energy, eBay Canada, Marktplaats BV, KEMET, Innovative Medicines Canada

Cassels Brock & Blackwell

Chris Hersh

5 partners

1 associate

Chris Hersh

Accor, Becton Dickinson, Berkshire Hathaway, Ferrero Canada, Food & Consumer Products of Canada, Pioneer Petroleums, Lubrizol

Dentons

Sandy Walker

7 partners

6 associates

Sandy Walker

Barry Zalmanowitz QC

Berkshire Hathaway Energy, Bayer, Shaw Communications, Mercuria Energy, Capital Power, Lions Gate Entertainment, Husky Energy, the Katz Group, Enbridge, Cenovus

Fasken Martineau DuMoulin

Anthony Baldanza

Huy Do

9 partners

4 associates

Huy Do

DP World, GS Electech, MAHLE, Microsoft, Novartis, Royal Bank of Canada, Toshiba, TPG Technology Consulting, Yamashita, Yamada

Goodmans

Calvin S Goldman QC

5 partners

1 counsel

2 associates

Richard Annan

Calvin S Goldman QC

Microsoft, Qualcomm, Postmedia Network Canada, National Hockey League, Spectra Energy, Sunovion Pharmaceuticals, Vancouver Airport Authority, Welltower, RioCan REIT

Norton Rose Fulbright

Kevin Ackhurst

10 partners

11 associates

None

Archer Daniels Midland, Avis Budget, Citibank, Crescent Point Energy, InnVest REIT, JTEKT, Pacific Exploration and Production, Lassonde, Porter Aviation, Parmalat Canada, Rona, Quebecor Media, Siriusxm

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