Canada: merger review
This article sets out the structure and practice for merger review under the Canadian Competition Act. We also examine issues related to challenges by the Commissioner of Competition, and potential remedies when issues arise. Finally, we discuss the enforcement approach taken to merger review by the Competition Bureau, including recent developments.
- Background to the Competition Bureau’s approach to merger reviews
- The refined procedural approach to the Bureau’s analysis of the efficiencies defence under the Competition Act
- Potential reform of the merger review process under the Canadian Competition Act
Referenced in this article
- Competition Bureau
- Commissioner of Competition
- Competition Act, RSC, c C-34, as amended
- Merger Enforcement Guidelines, Competition Bureau, October 2011
- A practical guide to efficiencies in merger review, Competition Bureau, March 2018
- Model Timing Agreement for Merger Reviews involving Efficiencies, Competition Bureau, May 2020
- Tervita Corporation v Canada (Commissioner of Competition), 2015 SCC 3
Under the Competition Act, the Competition Bureau (the Bureau) has jurisdiction to review a broad variety of transactions and commercial arrangements as ‘mergers’. Specifically, Section 91 of the Competition Act defines a merger as:
the acquisition or establishment, direct or indirect, by one or more persons, whether by purchase or lease of shares or assets, by amalgamation or by combination or otherwise, of control over or significant interest in the whole or part of a business of a competitor, supplier, customer or other person.
If it is found that a merger prevents or lessens, or is likely to prevent or lessen, competition substantially, the Competition Tribunal (the Tribunal) may, on application by the commissioner, issue an order dissolving or blocking the merger, or ordering the divestiture or rescission of all or part of the acquired business.
In the course of its review to determine whether a transaction is likely to result in a substantial prevention or lessening of competition (SPLC), the Bureau obtains its analytical information from several sources: it will receive information when the merging parties file notification forms (if required) and advance ruling certificate requests, it will often issue voluntary requests for information to the parties, and it may obtain information through market contacts (eg, customers, suppliers and other stakeholders). In a small number of cases, the Bureau also seeks further information through a ‘supplementary information request’ (SIR), which is a compulsory, US-style second request process. The Bureau may also seek a court order pursuant to Section 11 of the Competition Act to compel a person or entity to provide documents and information.
In reviewing all the information that it has collected from the parties, its own records, competitors, market sources, experts and other third parties, the Bureau must determine whether a proposed merger will result in an SPLC. As noted in the Bureau’s Merger Enforcement Guidelines (MEGs), which provide merging parties with general guidance on the Bureau’s analytical approach to merger review, ‘an SPLC results only from mergers that are likely to create, maintain or enhance the ability of the merged entity, unilaterally or in coordination with other firms, to exercise market power’. In the Superior Propane case, the Tribunal noted that ‘what is necessary is evidence that a merger will create or enhance market power which . . . is the ability to profitably influence price, quality, variety, service, advertising, innovation or other dimensions of competition’. The factors considered by the Bureau in determining the existence of an SPLC are discussed below.
The anticompetitive threshold
While market power can generally be assessed from the perspective of either the seller or buyer, the Bureau’s MEGs focus on the seller’s market power, defined as the ability of a single firm or group of firms to profitably maintain prices above the competitive level for a significant period; however, its analytical framework applies equally to purchasers.
In considering whether the merged entity will have an ability to influence price materially, the Bureau will look at the likely magnitude, scope and duration of any anticipated price increase that may result from the merger. The SPLC will occur when the merged entity, unilaterally or in coordination with other firms, is able to sustain higher prices than would exist in the absence of the merger by diminishing existing competition or by hindering the development of future competition.
In the latter scenario, the Bureau will typically examine the type, scope and timing of the potential entry or expansion by either one of the merging parties. To this end, when reviewing a merger, the Bureau may treat the transaction as a ‘prevent’ case when the acquirer, the target or a potential competitor has entry or expansion plans that are shelved due to the merger. Examples of mergers that may result in the prevention of competition include the following:
- an acquisition that otherwise prevents planned unilateral expansion by a merging party into new geographical markets;
- the introduction of new products; or
- the acquisition of an increasingly vigorous competitor or potential entrant.
Typically, the first step in the Bureau’s review of a merger is to define the relevant product and geographical markets in which the merging parties operate. The underlying rationale is to identify a group of buyers that may face increased market power as a result of the proposed merger. In doing so, the Bureau is essentially trying to define the smallest group of products, including at least one product of the merging parties, and the smallest geographical area in which a hypothetical monopolist can impose and maintain a 5 per cent price increase for a period generally longer than one year.
The definition of the product market revolves around the characteristics of the products and buyers’ ability or willingness to switch from one product to another in significant quantities in response to relative price changes. In determining which products, if any, are close substitutes, the Bureau may rely on statistical measures where detailed price and quantity data are available. The Bureau may also look at indirect evidence of substitutability, including evidence from market participants and functional indicators such as end use, physical and technical characteristics, price relationships and relative price levels, as well as potential switching costs incurred by buyers. It is possible that products that are functional substitutes entail high switching costs and in practical terms are not substitutes for buyers. For example, if the cost of switching to a close functional substitute is higher than the hypothetical monopolist’s 5 per cent price increase, the switching cost alone may be the determining factor in discouraging a buyer from substituting that new product.
Geographical market definition focuses on the buyers’ ability or willingness to switch their purchases from one location to another, in response to changes in relative prices. As with the product market definition, the Bureau will rely on functional indicators in determining whether geographical areas are considered to be close substitutes. The MEGs provide examples of these indicators, including specific characteristics of the product, transportation costs, price relationships and relative price levels, shipment patterns and conditions regarding foreign competition. Several price and non-price factors can affect a buyer’s ability or willingness to consider distant options. For example, non-price factors may include fragility or perishability of the relevant product, convenience, frequency of delivery and the reliability of service or delivery. Again, as in the case of product market definition, high switching costs incurred by buyers may also discourage substitution between geographical areas.
Market definition is not necessarily a required step in the Bureau’s assessment of a merger, and this has been emphasised in recent revisions to the MEGs as well as in a 2012 decision of the Tribunal.
Market shares and concentration
The next step of the analysis involves the identification of participants in the relevant markets to determine whether significant vigorous competitors will remain in the market post-merger. The first step in the SPLC analysis involves determining the participants’ and remaining competitors’ market shares and concentration levels to initially establish the potential significance of the impact of the merger on the market. Generally, participants include competitors that are current sellers of the relevant products, but can also include potential competitors that could readily and profitably sell into the relevant markets without significant sunk cost investments and that could effectively enter within one year. This response is often referred to as a ‘supply response’. Typically, the Bureau will examine factors such as switching costs, a seller’s ability to reposition its products or extend its product line, a seller’s excess capacity and any applicable intellectual property rights. In the case of foreign sellers, the Bureau will also look at such matters as the existence of tariffs, fluctuation rates, import quotas or export constraints, domestic ownership restrictions and whether the industry is susceptible to supply interruptions from abroad.
Having identified participants in the relevant market, the Bureau will then calculate their respective market shares, relying on metrics that can consist of dollar sales, unit sales, capacity or, in certain natural resource industries, reserves. In selecting the appropriate market share metric, the Bureau will attempt to identify the sellers’ future competitive significance.
Determining market share or concentration only provides part of the larger picture. Section 92 of the Competition Act stipulates that a merger cannot be found to substantially prevent or lessen competition solely on the basis of market shares. Nevertheless, high market shares may serve as a warning sign and lead to a more in-depth analysis of the merger by Bureau officials.
To avoid needlessly delaying mergers by conducting an in-depth investigation of every single transaction, the Bureau has outlined certain thresholds to identify mergers that are unlikely to have anticompetitive consequences. Typically, the commissioner will not challenge a merger on the basis of a concern related to the unilateral exercise of market power when the post-merger share of the merged entity is less than 35 per cent. Similarly, in the case of a concern related to a coordinated exercise of market power by the remaining competitors, if the post-merger share accounted for by the four largest firms in the market would be less than 65 per cent, or if the post-merger market share of the merged entity itself would be less than 10 per cent, the commissioner will typically not challenge the proposed merger.
These thresholds are not absolute benchmarks and should be considered with some caution. Conversely, mergers that exceed these thresholds are not automatically viewed as anticompetitive. In these cases, the Bureau will simply expand its analysis and examine other factors to determine whether the merger in question will result in an SPLC. In practice, many mergers with a post-merger share exceeding 35 per cent are not ultimately challenged by the commissioner.
In addition to determining market share and concentration, the Bureau will examine distribution of market shares across competitors and the extent to which market shares have varied over a significant period. Finally, the Bureau will also take into consideration the nature of the market and the impact of forthcoming change and innovation on the stability of existing market shares.
If the market share and concentration thresholds are exceeded or if the Bureau has information suggesting that there may be an SPLC as a result of the merger, it will conduct a competitive effects analysis, based on factors listed in Section 93 of the Competition Act. This analysis typically focuses on unilateral and coordinated effects.
In a market with many sellers offering comparable products, a firm may be limited in its ability to profitably raise prices as buyers may be tempted to switch to substitute products. However, there may be situations where a firm will be able to exercise unilateral market power irrespective of how its competitors respond. In markets with differentiated products, a post-merger price increase may be profitable because a price increase by one of the merging parties will divert demand towards the other merging party. In markets where firms are distinguished based on capacity, a price increase is likely to be profitable if the seller offering close substitutes has insufficient capacity to absorb the demand that would normally be diverted from the merged entity.
A merger may result in coordinated effects when a group of firms can profitably coordinate their behaviour. This usually occurs when individual firms can adjust their conduct in response to one another. Such behaviour can involve tacit or express understandings on price, service levels, allocation of customers or territories, or any other aspect of competition. Typically, the Bureau will examine whether market conditions will more effectively facilitate coordinated behaviour post-merger by assessing, for example, whether firms will be better able to detect and monitor deviations from coordinated efforts and how the merger changes the competitive dynamic in the market.
The specific factors that the Bureau looks at pursuant to Section 93 are briefly summarised below.
The Bureau will examine the presence and viability of foreign competition to determine whether it is likely to counter increased market power of the merged entity.
The Bureau will consider whether one of the merging entities would fail if the merger were not to occur. A firm is considered to be failing if it is or is likely to become insolvent, to initiate voluntary bankruptcy proceedings or to be petitioned into bankruptcy or receivership. The Bureau has issued general guidance on the types of information that are most relevant for a timely and efficient analysis of a failing firm. The guidance states that probable business failure does not provide a defence for a merger that is likely to prevent or lessen competition substantially. Rather, the loss of the actual or future competitive influence of a failing firm is not attributed to the merger if imminent failure is probable and, in the absence of a merger, the assets of the firm are likely to exit the relevant market because no competitive alternatives exist. Before concluding that a merger involving a failing firm is not likely to result in an SPLC, the Bureau will look at other alternatives, including acquisition by a competitively preferable purchaser, retrenchment or restructuring, and liquidation.
Consideration will be given to the availability of acceptable substitutes for the merging parties’ products that are in the same geographical market as the merging parties and whether consumers have other means of supply.
Barriers to entry
In assessing whether entry by a potential competitor is effective, the Bureau will take a closer look at whether entry is likely, timely and sufficient in scale and scope. Its analysis will also take into consideration existing entry barriers that may affect the likelihood, timeliness and sufficiency of entry. These barriers may include regulatory impediments, significant sunk costs and other entry-deterring factors.
The Bureau will attempt to determine whether the collective influence of all sources of competition in the market will be able to constrain the exercise of market power by the merged entity acting unilaterally or in coordination with other market participants.
Elimination of a vigorous competitor
A firm that is a vigorous and effective competitor often plays an important role in pressuring other firms to compete harder. The competitive attributes and history of the target firm are assessed to determine whether the merger is likely to result in the removal of a vigorous and effective competitor.
The Bureau examines change and innovation in relation to:
- buyer tastes;
- purchase patterns;
- firm structure;
- the regulatory environment; and
- the economy as a whole.
Where there is a great deal of change and innovation, it is less likely that any firm will be able to exercise market power for sustained periods.
Countervailing buying power
Where credible options are available to buyers, buyer concentration can prevent a price increase and make it difficult for sellers to exercise market power. Typically, a buyer will have this ability if, for example, it can switch to other sellers in a reasonable amount of time, or the promise of substantial orders can induce the expansion of an existing seller or sponsor entry by a potential seller. In this scenario, the Bureau will assess whether one or more buyers have such a countervailing power to constrain the exercise of market power.
Unlike the integrated analysis conducted in the United States and by the European Commission, the Bureau considers efficiencies separately, following its evaluation of whether a merger will result in an SPLC. This reflects the fact that the Canadian legislative framework contains an explicit efficiencies exception. Specifically, Subsection 96(1) of the Competition Act allows for the clearance of an anticompetitive merger, where the efficiency gains brought about by the merger are greater than and offset the anticompetitive effects. The onus is on the parties to establish the gains in efficiency, whereas the commissioner bears the burden of establishing the anticompetitive effects of the merger.
The first step in the trade-off analysis consists of an assessment of all efficiency claims, including their nature, magnitude and likely realisation. The Bureau will pay close attention to gains in productive efficiency, such as savings associated with integrating new activities within the firm or product, and plant-level and multi-plant-level savings in variable and fixed costs, as well as gains in dynamic efficiency, such as the optimal introduction of new products or the improvement of product quality and service.
The second step in the trade-off analysis is to balance the efficiency gains against ‘the effects of any prevention or lessening of competition that will result or is likely to result from the merger or proposed merger’. This entails the Bureau looking at all relevant price and non-price effects, including negative effects on allocative, productive and dynamic efficiencies, negative or socially adverse redistributive effects, and effects on service, quality and product choice. Further, the Bureau may also consider price and non-price effects in interrelated markets.
In weighing the efficiency gains against the anticompetitive effects, the Bureau normally applies the balancing weights standard, where the increase in surplus from the efficiency gains is balanced against the deadweight loss resulting from the anticompetitive effects to which may be added some portion of the wealth transfer from consumers to producers that is considered socially adverse. The Supreme Court of Canada has ruled that the balancing test may be framed as a two-step inquiry. First, the quantitative efficiencies of the merger should be compared against the quantitative anticompetitive effects. Second, the qualitative efficiencies should be balanced against the qualitative anticompetitive effects and a final determination must be made as to whether the total efficiencies offset the total anticompetitive effects of the merger at issue. The Supreme Court held that marginal efficiency gains should not be required for the defence to apply, as the language of Section 96 of the Act does not provide a basis for requiring this kind of threshold.
In 2018, the Bureau issued (in draft for public consultation) a practical guide to efficiencies in merger reviews, which is intended to inform businesses and their advisers of the Bureau’s most recent experience conducting the trade-off analysis in accordance with Section 96 and in what circumstances the commissioner may exercise discretion to not challenge an otherwise anticompetitive merger owing to efficiency gains. The Bureau is yet to adopt a final version of the practical guide to efficiencies; moreover, the commissioner recently announced that he is ‘highly unlikely’ to exercise his enforcement discretion and not challenge a potentially anticompetitive merger without reliable, credible and probative evidence that supports and validates the efficiencies defence advanced by the parties. The Bureau has announced that its refined procedural approach will require: the provision of detailed evidence supporting the efficiencies claimed; the ability to test the evidence underlying those claims; and adequate time, set out in a timing agreement, to conduct a meaningful assessment of the efficiencies claimed.
The commissioner also announced that the Bureau intends to provide guidance on the general categories of evidence and information that parties will need to provide to the Bureau to advance and support their claims regarding efficiencies. In addition, the Bureau released a model form of timing agreement in May 2020 that includes timed stages for production of information and evidence and engagement with the Bureau during a review that involves efficiencies claims. The model timing agreement is intended to be entered into prior to the beginning of the second statutory waiting period. It provides merging parties the opportunity to receive scheduled updates from the Bureau in respect of its analysis of anticompetitive effects, and a commitment from the commissioner not to go to the Tribunal until the process is complete; however, the trade-off for merging parties is that the model timing agreement significantly extends the overall review period.
Over the past year, the Bureau has become increasingly vocal about the need to review the Competition Act and, as part of this reform, has advocated for the elimination of the efficiencies exception and adoption of the integrated approach applied by the United States antitrust authorities and the European Commission (ie, where efficiencies are considered as a factor when considering the effects of mergers, rather than as a defence).
Challenging a merger
If the Bureau finds that the merger or proposed merger is likely to result in an SPLC and that there is no robust evidence of the efficiencies exception, the commissioner may apply to the Tribunal to challenge the merger or, alternatively, negotiate remedies consensually with the merging parties to resolve its competition concerns. If the commissioner is of the view that more time is needed to adequately analyse the competitive impact of a proposed merger, they may seek the agreement of the merging parties to delay the closing of the transaction. Otherwise, the commissioner may seek an interim injunction from the Tribunal pursuant to Section 100 of the Competition Act, although this power has been used very rarely as the Tribunal must be satisfied that, in the absence of an interim order, an action is likely to be taken that would substantially impair its ability to impose a remedy because that action would be difficult to reverse.
The Canadian merger review regime establishes an initial waiting period of 30 days, after which the parties can close their transaction provided the Bureau has not exercised its discretion to extend the waiting period by issuing a SIR. Since the Bureau acquired the statutory power to stop the clock, Section 100 orders have become less relevant as a tool to provide the Bureau with additional time to review a merger.
If, following its review, the Bureau is of the view that the transaction would lead to an SPLC, and the commissioner and merging parties are unable to reach a settlement, it is open to the commissioner to challenge the proposed transaction pursuant to Section 92 of the Competition Act. This is invariably followed by the commissioner bringing an application for an injunction under Section 104, which may proceed on a contested or consensual basis. Unlike a Section 100 injunction, a Section 104 injunction is only available where the commissioner has made an application to the Tribunal pursuant to Section 92 alleging that the proposed merger would result in an SPLC. To obtain this order from the Tribunal, the commissioner must establish that there is a serious issue to be tried, that irreparable harm would be caused if injunctive relief is not granted and that the balance of convenience favours granting the injunction.
Where the Bureau is concerned a merger or proposed merger is likely to result in an SPLC, it will attempt, where possible, to negotiate a remedy with the parties concerned. This remedy must restore competition to the point where it is no longer substantially less than it was pre-merger. Although the Bureau has a wide range of structural and behavioural remedies at its disposal, it generally favours the former because, on balance, it believes they are more effective. These preferences are outlined in the ‘Information Bulletin on Merger Remedies in Canada’, which provides the Bureau’s current policy on merger remedies and general guidance on the objectives for remedial actions, as well as general principles it applies when it seeks, designs and implements remedies.
Typically, the Bureau is willing to consider three types of remedies. Structural remedies involve the divestiture of assets, which must be viable and sufficient to eliminate an SPLC. The divestiture must occur in a timely manner, generally within three to six months, and the buyer must be independent and have both the ability and intention to be an effective competitor in the relevant market. Prior to the completion of the divestiture, the Bureau normally requires that the merging parties hold these assets separate, although in some instances it is willing to simply require that the competitive viability of the assets be maintained.
Second, the Bureau may also seek quasi-structural remedies. In this case, the merged entity is allowed to retain ownership of the assets acquired in the merger, but must take certain actions that have structural implications for the marketplace, such as the removal of anticompetitive contract terms, the granting of non-discriminatory access rights to networks or the licensing of intellectual property.
Finally, the Bureau may seek behavioural remedies, although until recently, it has rarely done so on a stand-alone basis. Rather, it may seek combination remedies where a structural divestiture is combined with behavioural remedies.
Common examples include the following:
- short-term supply arrangements for the buyer of the assets to be divested, at a price defined to approximate direct costs;
- the provision of technical assistance to help a buyer or licensee train employees in complex technologies, especially for those technologies related to intellectual property; and
- codes of conduct, which can be readily monitored and expeditiously enforced by a third party, such as through binding arbitration procedures.
That said, the commissioner has recently stated that the Bureau may require behavioural remedies to resolve concerns with a merger when structural remedies are either unavailable or insufficient. The Bureau issued a template for merger consent agreements in September 2016, which is designed to provide better insight into the Bureau’s expectations when negotiating measures to address competitive issues likely to arise from a proposed merger.
On 29 March 2016, the Bureau reached its first-ever mediated resolution of a merger challenge when it entered into a consent agreement with Parkland Fuel Corporation in connection with its acquisition of Pioneer Energy. The mediation process was utilised again in 2022 in connection with the Bureau’s consent agreement with GFL Environmental Inc to resolve the commissioner’s challenge of its acquisition of Terrapure Environmental Ltd. In both cases, the mediator was a judicial member of the Tribunal.
In its 2021 budget announcement, the federal government committed to increase the Bureau’s budget by C$96 million over the next five years, plus annual C$27.5 million budget increases after that, as a way of enhancing the Bureau’s capacity and making sure ‘it is equipped with the necessary digital tools’ for the modern economy. However, the commissioner clarified in recent remarks that none of this new funding will be allocated to the Bureau’s merger review programme, which is currently funded entirely through filing fees collected through the merger notification regime. A formal review of the existing merger filing fees is scheduled for 2023.
Canada has joined several other jurisdictions in considering legislative reforms to its competition laws, including the merger review process. On 7 February 2022, Canada’s Minister of Innovation, Science and Industry announced that the federal government will undertake a broad review of the Competition Act and consider potential ways to improve its operation with a view to promoting dynamic and fair markets. In addition, Senator Howard Wetston issued a consultation invitation in October 2021 (the Wetston Consultation), which was intended to inform future parliamentary consideration of Canada’s competition policy framework, the Competition Act in particular, and whether it remains appropriate in the digital age. The consultation received 23 responses, including a submission by the Bureau.
As noted above, one area of focus for potential reform is on the role of efficiencies in the Canadian merger review process. In its submission to the Wetston Consultation, the Bureau recommended eliminating the efficiencies exception owing to what it describes as four key problems:
- it permits mergers that are harmful to Canadians;
- it is inconsistent with international best practice;
- it is difficult – if not impossible – to implement properly; and
- it suffers from a misguided original policy intent.
The Bureau argues that the efficiencies exception is no longer supportable and that Canada should move in line with ‘international best practice’ and incorporate efficiencies as a mere factor that may be considered in assessing the effects of a merger. In the Bureau’s view, this would permit a more flexible and modern approach to efficiencies analysis and avoid immunising anticompetitive mergers where ‘private benefits’ to the parties outweigh the anticompetitive effects of a merger.
In the meantime, while the efficiencies exception remains part of the legislative framework, the Bureau continues to request that parties enter into its model timing agreement for merger reviews involving claimed efficiencies. The Bureau has made it clear that it expects merging parties to enter into a timing agreement for it to consider efficiencies claims, citing the need for an adequate amount of time to review these claims as the review requires a detailed and resource-intensive analysis.
The Bureau’s submission to the Wetston Consultation included a number of other notable recommendations for reform of the merger review process.
- Enacting structural presumptions to shift the burden onto the merging parties to prove why a ‘concentrative merger’ (which is not defined) would not substantially lessen or prevent competition. The Bureau argues that the requirement for the commissioner to prove that a concentrative merger is likely to harm competition is not an efficient use of judicial, business or public sector resources, and that enacting structural presumptions would simplify merger cases (for the Bureau).
- Creating a new, lower, standard for the prevention branch of the SPLC test, at least as it relates to acquisitions of emerging competitors in the ‘digital economy’. The case law has established that the commissioner has the burden to establish that new entrants would likely have entered or expanded in the relevant market, or would be likely to do so, ‘within a reasonable period of time, and on a sufficient scale, to effect either a material reduction of prices or a material increase in one or more levels of non-price competition, in a material part of the market’. The Bureau argues that this standard, established from analysis of more traditional industries, is not suitable for assessing acquisitions of emerging competitors in the digital economy and that a more workable standard would provide additional flexibility to protect the competitive process.
- Enacting a new remedial standard that requires that the proposed remedy for a merger restores competition to pre-merger levels (ie, the remedy should eliminate all anticompetitive effects and not merely the ‘substantiality’ of these effects). The current Canadian remedial standard for mergers, which has been established by case law, requires that the remedy restore competition to the point at which it can no longer be said to be substantially less than it was before the merger.
- Reviewing the standards for filing, hearing, determining and obtaining interim injunctions to ensure that there is a workable avenue to protect competition on an interim basis. The Bureau argues that the commissioner’s ability to temporarily pause the completion of a merger pending the outcome of proceedings before the Tribunal is currently subject to legal standards that are impractical.
- Extending the limitation period for mergers from the current one-year period to three years. Section 97 of the Competition Act prevents the commissioner from challenging a merger more than one year after it has been substantially completed. The Bureau argues that the current one-year limitation period is shorter than that in other jurisdictions (eg, the United States and Australia) and that extending the limitation period to three years would better allow the Bureau to detect and review mergers that are not subject to mandatory pre-merger notification.
- Enacting amendments to close certain technical loopholes in the pre-merger notification regime and introducing an anti-avoidance provision. The Bureau argues that there are a number of technical issues in the current pre-merger notification regime that increase the risk of it not detecting some problematic mergers.
The federal government has already introduced a first round of amendments to the Competition Act in its omnibus bill to implement certain provisions of the budget tabled on 7 April 2022. Apart from the introduction of a new anti-avoidance provision to the pre-merger notification regime, the amendments do not include material changes to the merger review process, including any of the Bureau’s recommended changes described above. The impetus for change to Canada’s merger review process appears to be strong enough to result in some reforms in the near term – the precise timing and extent of these reforms is less clear but the most significant changes since the merger review process was last overhauled (in 2009) appear to be on the horizon.
 Competition Act, RSC, c C-34, as amended (the Competition Act).
 Supplementary information requests (SIRs) are issued quite infrequently; however, the number of SIRs issued by the Bureau on a yearly basis has increased in recent years. This may be attributable to the case mix (ie, there may have been a greater proportion of very complex reviews in recent years), rather than evidence of a pattern. The Bureau may also rely on voluntary information requests and enter into timing agreements with parties in some instances, rather than employing the more formal SIR process.
 The Bureau has indicated that it may rely on Section 11 in certain circumstances; for example, where a transaction is not notifiable or in the case of hostile transactions. See Merger Review Process Guidelines, Competition Bureau, January 2012.
 Merger Enforcement Guidelines (MEGs), Competition Bureau, October 2011.
 Canada (Commissioner of Competition) v Superior Propane Inc  CCTD No. 15 at 258 (Superior Propane).
 MEGs, footnote 4, at 2.3.
 id., at 2.11. See also Tervita Corporation v Commissioner of Competition, 2013 FCA 28 at paragraphs 85–104; and Tervita Corporation v Canada (Commissioner of Competition), 2015 SCC 3 at paragraphs 67–77 (Tervita).
 MEGs, footnote 4, at 4.4 and 4.5.
 The hypothetical monopolist approach seeks to identify relevant markets by asking, with regard to each product of the merging firms, whether a profit-maximising hypothetical monopolist of that product would be able to profitably impose a small but significant non-transitory price increase.
 Superior Propane, footnote 5, at 49.
 MEGs, footnote 4, at 4.14.
 id., at 4.21.
 See MEGs, footnote 4, at 3.1; and The Commissioner of Competition v CCS Corporation et al (29 May 2012), CT-201-002 (Competition Tribunal) at paragraphs 360–364.
 MEGs, footnote 4, at 6.25.
 See Competition Bureau, News Release, ‘Competition Bureau statement regarding the acquisition of Total Metal Recovery (TMR) Inc. by American Iron & Metal Company Inc.’ (29 April 2020). Note that, similar to other agencies around the world, the Bureau did not make any substantive change to its interpretation of this factor during the 2008 economic crisis.
 Canada (Director of Investigation and Research) v Air Canada , 27 CPR (3d) 476 (Competition Tribunal); and Canada (Director of Investigation and Research) v Air Canada (1993), 49 CPR (3d) 7 (Competition Tribunal).
 Canada (Director of Investigation and Research) v Laidlaw Waste Systems Ltd , 40 CPR (3d) 289 (Competition Tribunal) at 331.
 MEGs, footnote 4, at 12.21.
 See Canada (Commissioner of Competition) v Superior Propane Inc (30 August 2000), CT-1998/002 (Competition Tribunal).
 Tervita, footnote 7, at paragraphs 147–155.
 See Competition Bureau, ‘A practical guide to efficiencies in merger review’, 20 March 2018.
 Remarks by Commissioner of Competition Matthew Boswell at the Canadian Bar Association Competition Law Spring Conference 2019 (7 May 2019), Toronto, Ontario (available at
 See Competition Bureau, ‘Model Timing Agreement for Merger Reviews involving Efficiencies’ (21 May 2020).
 Upon the issuance of a SIR, the waiting period is suspended until a complete response has been submitted by the merging parties. Once the response to the SIR is submitted, a new 30-day period begins to run and the parties may close their transaction following its expiry.
 See: ‘Competition Bureau challenges proposed merger of rival oil and gas waste service providers Secure and Tervita’ (30 June 2021), https://www.canada.ca/en/competition-bureau/news/2021/06/competition-bureau-challenges-proposed-merger-of-rival-oil-and-gas-waste-service-providers-secure-and-tervita.html.
 See: ‘Competition Bureau reaches agreement with Rogers and Shaw to prohibit closing pending the outcome of the Commissioner’s application to challenge merger’ (30 May 2022),
 In The Commissioner of Competition v Parkland Industries Ltd, 2015, 4 (29 May 2015), CT-2015-003 (Competition Tribunal), the commissioner sought a ‘hold separate’ over Pioneer’s retail gas assets in 14 communities; the Tribunal granted the commissioner’s application for an interim injunction, but only in part, requiring Parkland to hold separate Pioneer’s retail gas assets in only six communities for the duration of the commissioner’s challenge.
 Canada (Director of Investigation and Research) v Southam Inc  1 SCR 748 at paragraph 85.
 Canada (Commissioner of Competition) v Canadian Waste Services Holding Inc  CCTD No. 32, 15 CPR (4th) 5 (Competition Tribunal) at paragraph 110.
 Information Bulletin on Merger Remedies in Canada, Competition Bureau, 22 September 2006.
 id., at paragraph 33.
 id., at paragraph 24.
 The Bureau recently obtained behavioural remedies in respect of the Telus/Public Mobile and Garda/G4S transactions. See Competition Bureau, Announcement, ‘Competition Bureau Issues a “No Action Letter” to TELUS’ (29 November 2013); Competition Bureau, Position Statement, ‘Competition Bureau Statement Regarding The Proposed Acquisition by TELUS of Public Mobile’ (29 November 2013); Competition Bureau, Announcement, ‘GardaWorld provides Competition Bureau with commitment in Quebec’ (13 March 2014); and Competition Bureau, Position Statement, ‘Competition Bureau Statement Regarding the Acquisition by GardaWorld of G4S Canada’ (13 March 2014).
 See Competition Bureau, ‘Competition Bureau Mergers Consent Agreement Template’ (29 September 2016).
 See Competition Bureau, News Release, ‘Competition Bureau and Parkland reach mediated resolution that will see gas stations and assets sold in Ontario and Manitoba’ (29 March 2016); and Competition Bureau, News Release, ‘Competition Bureau reaches agreement with GFL to preserve competition for industrial waste and oil recycling services in western Canada’ (14 April 2022).
 See Competition Bureau, Speech, ‘Pre-recorded remarks from Matthew Boswell, Commissioner of Competition’, Canadian Bar Association Competition Law Fall Conference (20 October 2021).
 See Innovation, Science and Economic Development Canada, News Release, ‘Pre-merger notification transaction-size threshold to remain at $93M and Canada’s competition law to be examined’ (7 February 2022).
 See Submission by the Competition Bureau, ‘Examining the Canadian Competition Act in the Digital Era’ (8 February 2022).
 id., at section 2.1.
 id., at sections 2.2–2.7.
 See, for example, Commissioner of Competition v Vancouver Airport Authority, 2019 Comp Trib 6 at paragraph 667.