June 23, 2022
This Interpretation Guideline is issued by the Commissioner of Competition ("Commissioner"), who is responsible for the administration and enforcement of the Competition Act ("Act"). The purpose of this Guideline is to assist parties and their counsel in interpreting and applying the provisions of the Act relating to notifiable transactions. This Guideline sets out the general approach taken by the Competition Bureau ("Bureau") and supersedes all previous statements made by the Commissioner or other Bureau officials. This Guideline is not intended to be a binding statement of how discretion will be exercised in a particular situation and should not be taken as such, nor is it intended to substitute for the advice of legal counsel to the parties, or to restate the law. Guidance regarding a specific proposed transaction may be requested from the Merger Notification UnitFootnote 1.
Generally, in providing information, including in the context of an unsolicited or "hostile" takeover bid ("unsolicited bid"), the Bureau is guided by section 29 of the Competition Act (the "Act") and the enforcement policy and practice articulated in the Bureau's Information Bulletin on the Communication of Confidential Information Under the Competition Act (the "Bulletin"). Section 29 protects information provided to or obtained by the Bureau, including the identity of any persons who have provided it, subject to certain exceptions. In particular, this section provides for the communication of information in four circumstances: to a Canadian law enforcement agency; for the purposes of the administration or enforcement of the Act; where information has been made public; or when authorized by the person who provided the information. Please consult the Bulletin for further details on the scope and application of section 29 of the Act.
The Act places limited obligations on the Bureau to disclose information to the parties to an unsolicited bid transaction. Subsection 114(3) of the Act requires the Bureau to immediately advise a target of the date upon which the Bureau receives a filing from a person who has commenced or has announced an intention to commence a take-over bid.
With respect to a non-hostile transaction, the Bureau is generally willing to provide updates, where appropriate, on the progress of its review, speaking with counsel for both parties, separately or together (as requested by the purchasing party). Typically, in such situations, the Bureau provides its complexity designation, the anticipated timing of its review, the date upon which the other party has certified completeness of any SIR response, the Bureau's preliminary and final views on market definitions and relevant section 93 factors, as developed, and its preliminary and final conclusions regarding a potential prevention or lessening of competition (collectively, "Pertinent Information"). Having considered the sensitivities involved in sharing information with both parties in an unsolicited bid, the Bureau has determined that, where it shares Pertinent Information with one party, it will strive to disclose such Pertinent Information equitably to the other party, subject, in all cases, to restrictions on the disclosure of confidential information defined by section 29 of the Act.
The Bureau acknowledges that unsolicited bids can give rise to particularly complex considerations that may impact the straightforward application of the foregoing policy on disclosure of Pertinent Information, including, for example, in circumstances involving multiple competing bids. Accordingly, the Bureau will be mindful of such considerations in determining, on a case-by-case basis, how the policy is applied.
Merger Notification Unit
50 Victoria Street
Gatineau, Quebec K1A 0C9