Welcome to the January issue of Blakes Competitive Edge, a monthly publication of the Blakes Competition, Antitrust & Foreign Investment group. Blakes Competitive Edge provides an overview of recent developments in Canadian competition law, including updates on enforcement activity by the Canadian Competition Bureau (Bureau), recent initiatives and key trends.
Key Highlights
Merger review activity remained strong through the month of December, with a total of 236 merger reviews having been completed in 2021. This is a nine per cent increase over the number of reviews completed through the same period in 2019 (216), and a 48 per cent increase over the number of reviews through the same period in 2020 (160).
The Competition Bureau entered into a consent agreement with S&P Global Inc. in response to its acquisition of IHS Markit Ltd.
In misleading advertising, the Competition Bureau has obtained a court order requiring NuvoCare Health Sciences Inc. to produce records and information relevant to the Bureau’s ongoing investigation into weight loss claims by NuvoCare and entered into a consent agreement with Keurig Canada regarding false or misleading claims as to the recyclability of its coffee pods.
Merger Monitor
December 2021 Highlights
32 merger reviews completed
Primary industries: real estate and rental and leasing (34 per cent); mining, quarrying, and oil and gas extraction (28 per cent); and manufacturing (19 per cent)
One consent agreement (remedies) filed
21 transactions received an Advance Ruling Certificate (66 per cent), while 10 transactions received a No Action Letter (31 per cent)
Annual 2021 Highlights
236 merger reviews completed
Primary industries: real estate and rental and leasing (23 per cent); manufacturing (20 per cent); mining, quarrying and oil and gas extraction (17 per cent); and finance and insurance (10 per cent)
Four consent agreements (remedies) filed
154 transactions received an Advance Ruling Certificate (65 per cent), while 78 transactions received a No Action Letter (33 per cent)
Merger Reviews Completed in 2021, by Primary Industry
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Monthly Merger Review Completed, 2020 and 2021
Merger Enforcement
Competition Bureau enters into consent agreement with S&P Global Inc.
On December 21, 2021, the Competition Bureau entered into a consent agreement with S&P Global Inc. to address the Bureau’s concerns that S&P Global’s acquisition of IHS Markit Ltd. would substantially lessen competition for price assessments in the energy, coal and petrochemical sectors. Both companies operate price reporting agencies that provide price assessments of oil, refined petroleum products, liquid natural gas, liquefied petroleum gas, natural gas, petrochemicals and coal in Canada. To address the Bureau’s concerns, S&P Global agreed to sell certain assets to an acceptable buyer, including IHSM’s Oil Price Information Services business, including its PetroChem Wire division and its Coal, Metals and Mining business. The Commissioner has approved News Corporation as the buyer of the assets once the transaction closes.
Other Enforcement Activity
Competition Bureau obtains court order relating to investigation of Nuvocare Health Sciences Inc.
On January 5, 2022, the Competition Bureau announced that it had obtained a court order from the Federal Court under section 11 of the Competition Act to advance its ongoing investigation of weight loss claims made by NuvoCare Health Sciences Inc. about certain of its natural health products. The court order requires NuvoCare to produce records and information in connection with the Bureau’s investigation of NuvoCare under the deceptive marketing practices provisions of the Competition Act. The Competition Bureau’s press release regarding the order is available here.
Competition Bureau enters into consent agreement with Keurig Canada Inc.
On January 6, 2022, the Competition Bureau entered into a consent agreement with Keurig Canada Inc. to resolve concerns over false or misleading environmental claims made to consumers about the recyclability of certain single use coffee pods in municipalities that either did not recycle the pods or required individuals to take additional, unadvertised steps to recycle the pods. Among other things, Keurig Canada has agreed to pay a C$3-million penalty, donate C$800,000 to a Canadian charitable organisation focused on environmental causes, change its recyclable claims, and publish corrective notices about the recyclability of its products.
Non-Enforcement Activity
Competition Bureau and Health Canada’s Products and Food Branch issue joint notice on collaboration
On January 10, 2022, the Competition Bureau and Health Canada’s Health Products and Food Branch (HPFB) issued a joint notice in which they committed to further collaborate to support Canadians’ access to safe and effective pharmaceuticals and biologics. In particular, the Bureau and HPFB affirmed their commitment to share information (including the Bureau’s findings related to the impact of regulatory frameworks on competition in the context of access to medicines and HPFB feedback on competition-related issues that impact access to medicines) and cooperate on Bureau-led enforcement actions.
Section 36 Remedies
In Coburn and Watson’s Metropolitan Home v. Bank of Montreal, 2021 BCSC 2398, the Supreme Court of British Columbia approved the plaintiffs’ settlements with the five remaining Bank defendants (Royal Bank of Canada, Canadian Imperial Bank of Commerce, Toronto-Dominion Bank, Bank of Montreal and Bank of Nova Scotia) in class proceedings relating to credit card interchange fees in the courts of British Columbia, Alberta, Saskatchewan, Ontario and Québec. In a joint hearing, the Court of Queen’s Bench of Alberta, the Court of Queen’s Bench for Saskatchewan, the Ontario Superior Court of Justice and the Superior Court of Québec also approved the settlements. The approval of the settlements represents settlement with all defendants and, barring an appeal, the end of this long-standing class proceeding (which began in 2010).
Investment Canada Act
Non-Cultural Investments
October and November 2021 Highlights
One reviewable investment approval and 229 notifications filed (185 for acquisitions and 44 for the establishment of a new Canadian business)
Country of origin of investor: U.S. (62 per cent), Austria (seven per cent), UK (four per cent), India (four per cent), France (three per cent), Australia (three per cent) and China (three per cent)
January - November 2021 Highlights
One reviewable investment approval and 1,055 notifications filed (809 for acquisitions and 245 for the establishment of a new Canadian business)
Country of origin of investor: U.S. (61 per cent), UK (five per cent), Austria (three per cent) and France (three per cent)
Cultural Investments
January - March 2021 Highlights
Seven reviewable investment approvals and five notifications filed (three for acquisitions and two for the establishment of a new Canadian business)
Country of origin of investor: U.S. (42 per cent), Sweden (25 per cent), UK (eight per cent), Japan (eight per cent), Hong Kong (eight per cent) and the Netherlands (eight per cent)
Blakes Notes
In its recent decision in Cineplex v. Cineworld, the Ontario Superior Court of Justice (Commercial List) delivered a C$1.24-billion damages award for a busted M&A transaction that was a victim of the COVID-19 pandemic. To read more about this decision, please click here.
To read more thought leadership insights from the Competition, Antitrust & Foreign Investment group, please click here.
For the latest legal and business updates regarding COVID-19, visit our Resource Centre.
Contact Us
If you have any questions, please do not hesitate to contact your usual Blakes contact or any member of the Blakes Competition, Antitrust & Foreign Investment group.
