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 and foreign investment law, including updates on enforcement activity by the Canadian Competition Bureau (Bureau), recent initiatives and key trends.
Key Highlights
Important amendments to the Competition Act (Act) now in effect as Bill C-56 receives Royal Assent
Government of Canada reappoints Matthew Boswell as Commissioner of Competition
Merger review activity remained slow through the month of December, with a total of 193 merger reviews completed in 2023. This is a 4% decrease from the number of reviews completed through the same period in 2022 (201), and an 18% decrease from the number of reviews completed through the same period in 2021 (236)
Merger Monitor
November 25 – December 31, 2023 Highlights
16 merger reviews completed
Primary Industries: mining quarrying, and oil and gas extraction (25%); transportation and warehousing (19%); manufacturing (13%); professional, scientific, and technical services (13%)
10 transactions received an Advance Ruling Certificate (63%), six transactions received a No Action Letter (38%)
January – December 31, 2023 Highlights
193 merger reviews completed
Primary Industries: manufacturing (21%); mining, quarrying, and oil and gas extraction (17%); real estate and rental and leasing (13%); finance and insurance (10%); retail trade (8%)
Four consent agreements (remedies) registered
One judicial decision
94 transactions received an Advance Ruling Certificate (49%), 90 transactions received a No Action Letter (47%)
One transaction abandoned, three transactions resolved through other means
Merger Reviews Completed Through December 31, 2023 by Primary Industry
Legislation Watch
Parliamentary debate continues regarding proposed changes to the Investment Canada Act under Bill C-34
- On December 14, 2023, Bill C-34 completed second reading at the Senate. Bill C-34 proposes to introduce a new mandatory pre-closing filing requirement for specified investments by non-Canadians in certain business sectors (which will be identified in the regulations), provide the relevant minister authority to accept undertakings during a national security review, and remove the threshold for review of investments by state-owned enterprises from countries without trade agreements with Canada.
Bill C-56 receives Royal Assent, making significant amendments to the Act
On December 15, 2023, Bill C-56 received Royal Assent, amending the Act. These amendments provide the Bureau with the power to compel third parties to produce information in connection with market studies, eliminate the efficiencies defence provisions (which allowed mergers and collaborations that result in economic efficiency gains to proceed if those gains outweigh any anti-competitive effects resulting from the merger or collaboration), restructure the test for abuse of dominance, and add the imposition of excessive and unfair selling prices to the list of anti-competitive acts under the abuse of dominance provision, among other things. The expanded market studies power, elimination of the efficiencies defence with respect to mergers and the abuse of dominance amendments came into force on December 15, 2023. The elimination of the efficiencies defence with respect to collaborations will come into force with a one-year delay, on December 15, 2024.
On December 18, 2023, the Bureau published a guide providing an overview of the amendments made to the Act following the Royal Assent of Bill C- 56.
Canadian government tables reading of Bill C-59
In addition to Bill C-56, the Canadian government has also proposed additional amendments to the Act under Bill C-59, previously previewed in the government’s Fall Economic Statement.
Non-Enforcement Activity
Canadian government reappoints Matthew Boswell as Commissioner of Competition
On December 20, 2023, the Government of Canada announced the reappointment of Matthew Boswell as Commissioner of Competition. Commissioner Boswell’s current term would have ended February 26, 2024. With the reappointment, the Commissioner will hold the position for another two-year term, effective February 27, 2024.
Investment Canada Act
Non-Cultural Investments
November 2023 Highlights
Zero reviewable investment approvals and 93 notifications filed (74 filed for acquisitions and 19 for the establishment of a new Canadian business)
Country of ultimate control: United States (53%); Germany (9%); United Kingdom (8%); and France (6%)
January – November 2023 Highlights
Five reviewable investment approvals and 1,074 notifications filed (808 filed for acquisitions and 266 for the establishment of a new Canadian business)
- Country of ultimate control: U.S. (51%); U.K. (8%); France (6%); Austria (3%); Germany (3%); China (3%)
Blakes Notes
Blakes has once again been recognized as an Elite Canadian competition firm in Global Competition Review’s GCR 100 2024.
Blakes has developed a new Market Studies Toolkit that provides critical background information and practical advice on what to do if a market study is initiated in your industry. Download your copy here.
Updates on recent amendments to the Act:
For more information about the Bill C-56 amendments, see our April 4, 2023 Blakes Seminar: Sweeping Changes to Canada's Competition and Foreign Investment Rules, our September 15, 2023 Blakes Bulletin: Proposed Competition Law Changes Will Affect Merger Planning and Expand the Scope of Competition Bureau Investigations, our September 21, 2023 Blakes Bulletin: Canadian Government Introduces Important Amendments to the Competition Act, and our December 21, 2023 Blakes Bulletin: Competition Law Update: Parliament Approves Next Wave of Competition Act Amendments.
For more information on the proposed amendments under Bill C-59, see our November 23, 2023 Competition Law Update: Further Changes Coming to the Competition Act, and our November 30, 2023 Blakes Bulletin: Revamping the Rules: Canadian Competition Act Update.
For more information about the Bill C-34 amendments, see our December 7, 2022 Blakes Bulletin: Canadian Government Proposes Important Changes to Expand National Security Review Powers Under the Investment Canada Act and our April 4, 2023 Blakes Seminar: Sweeping Changes to Canada's Competition and Foreign Investment Rules.
For more information on the new criminal prohibition against wage-fixing and no-poach agreements, see our September 7, 2022 Blakes Bulletin: Competition Act Restrictions on Agreements Between Companies on Employment Terms: What You Need to Know, our November 22, 2022 Blakes Podcast: Canada’s Competition Act to Ban Wage-Fixing and No-Poach Agreements, our January 19, 2023 Blakes Bulletin: Competition Bureau Publishes Draft Guidance on Wage-Fixing and No-Poach Agreements, our April 27, 2022 Blakes Bulletin: Proposed Competition Law Amendments in Canada Set to Significantly Expand the Scope of the Competition Act, our May 23, 2023 Blakes Bulletin: New Criminal Prohibition Against Wage-Fixing and No-Poach Agreements Coming Soon, our June 28, 2023 Blakes Bulletin: Update: Amendments to Canada’s Competition Act Now Enacted, and our June 1, 2023 Blakes Bulletin: New Enforcement Guidelines for Wage-Fixing and No-Poach Agreements.
Browse our thought-leadership insights from the Competition, Antitrust & Foreign Investment group to learn more.
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.