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Under the Competition Act, the Commissioner of Competition may review any merger or acquisition, regardless of size, to protect and promote competition.
Although the majority of transactions do not raise competition concerns some may harm competition through higher prices, reduced output, reduced quality of goods or services, or less innovation.
In certain cases, the Competition Act requires the parties to a proposed merger to notify the Bureau prior to closing the transaction so that we can conduct a review. This is known as a notifiable transaction.
When a transaction is “notifiable,” parties to the merger must notify us and provide certain information. They must also wait a specified period of time before they can close their transaction.
Whether a proposed transaction is notifiable depends on if certain financial thresholds related to the size of the parties and the transaction are met. These thresholds and other criteria, including certain exceptions to notification, are set out in the Competition Act.
If you are a party to a merger that may require advance notification, you are encouraged to seek legal advice.
Mergers that are not subject to mandatory pre-merger notification, may also raise competition concerns and may be investigated by us. In those cases, we encourage the merging parties to voluntarily contact us before closing their transaction, preferably at an early stage. When a transaction has already closed, we may investigate it for up to one year after closing.
Contact the Merger Intelligence and Notification Unit:
- Telephone: 819-953-8652
- Email: email@example.com
For more in-depth information on merger reviews, consult the documents listed under Further Reading at the bottom of this page.
Stages in a notifiable merger review
1. Submission of a pre-merger notification and waiting periods
Note that section 113.1 of the Competition Act provides that when one or more transactions are proposed or designed to avoid notification, sections 114 through 123.1 of the Competition Act apply, making these transactions also subject to notification.
The parties to a notifiable merger must notify us and submit certain information to the Bureau. The information to be provided is listed in section 16 of the Notifiable Transactions Regulations. In the event such information is received after 5:00 p.m. Eastern Time on a business day, or at any time on a holiday, it is deemed received on the next business day.
When we receive a complete notification that includes all required information, the parties also become subject to an initial 30-day waiting period. During this initial waiting period the parties are prohibited from completing the merger, unless they receive a waiver from us to proceed.
If during this initial 30-day waiting period we determine that additional information is required from the merging parties to conduct our review, we have the authority to ask merging parties for that information. This is known as a Supplementary Information Request (SIR). Where we issue a SIR, the parties may not close their transaction prior to the expiry of a subsequent waiting period. This subsequent 30-day waiting period begins once we have received the merging parties’ certified complete responses to the SIR.
Merging parties may also choose to submit a request for an Advance Ruling Certificate (ARC), in lieu of or in addition to submitting a pre-merger notification. Where parties choose to submit an ARC request in lieu of a notification, parties may not close their transaction without also receiving a waiver from us. The Commissioner may issue an ARC where they are satisfied that the proposed transaction would not be likely to result in a substantial lessening or prevention of competition.
2. The review
For the small number of cases that do raise competition concerns, the focus of the Bureau's review is to confirm whether a proposed transaction is likely to result in a substantial prevention or lessening of competition in any relevant market in Canada.
To do so we consider many different elements, such as:
- the level of economic concentration in the relevant industry
- the market shares of the merging parties
- the conditions of entry and barriers to entry into the market
- the likely anti-competitive effects of the proposed transaction
Our review does not take into account any impact that the merger may have on jobs or employment.
As part of the review, we consult with a wide range of industry participants, such as suppliers, competitors, industry associations, customers, buying groups, and industry experts.
We also use all of the tools available to us to complete a thorough review of the facts regarding a proposed transaction. This includes investigative steps requiring merging parties to produce documents and data — such as through SIRs or a court order.
3. Our decision and possible actions
If the Bureau determines that a proposed transaction is not likely to result in a substantial lessening or prevention of competition, we may issue either:
- an ARC confirming that the proposed transaction would not be likely to result in a substantial lessening or prevention of competition; or
- a No-Action Letter confirming that we do not intend to challenge the proposed transaction at this time.
The Bureau has up to one year following the completion of a transaction to challenge it before the Competition Tribunal.
If we do have concerns about a merger, we may take either (or both) of the following actions:
- We can negotiate remedies with the parties to resolve the competition concerns.
- Most often, the remedy involves a divestiture, such as the sale of assets to a new or existing market participant and will take the form of a Consent Agreement that is filed with the Competition Tribunal.
- We can apply to the Competition Tribunal to challenge the merger. The Tribunal may:
- direct that the merger or part of the merger not proceed;
- prohibit certain actions by the merging parties; and/or
- dissolve the merger or order the disposition of assets or shares.
Importance of full disclosure and early consultation
We strongly encourage all parties to consult with us before (or as soon as possible after) submitting a notification or when requesting an Advance Ruling Certificate.
Early consultation enables us to complete our review in a timely manner and minimizes requests for additional information. It also enables us to provide more definitive guidance. Parties are encouraged to disclose all relevant facts, including the names of all parties involved in the merger, transaction details, and any other relevant information.
All submissions to the Bureau are kept confidential.
Communication of confidential information
Section 29 of the Competition Act protects information obtained by or provided to the Bureau, including the identities of those who provided the information and any information that could reveal their identities.
The Bureau is committed to treating confidential information responsibly and in accordance with the law. Maintaining confidentiality is fundamental to the Bureau’s ability to pursue its responsibilities under the Act and to maintain its integrity as a law enforcement agency.
The Bureau’s Merger Intelligence and Notification Unit processes all merger notifications and provides guidance to parties on filing, timing, and information requirements.
Fax: 819 994 0998
Place du Portage I
50 Victoria Street, 19th Floor
Gatineau, Quebec K1A 0C9
Concerns or questions about a merger
Contact us if you have any comments or concerns regarding a particular merger or if you have any questions about the merger review process.
We do not comment on mergers that are currently under review. The results of concluded merger reviews are posted monthly, on or after the 10th calendar day of the month.
The following table lists a variety of reference documents. These documents describe the process and include guidelines and forms as well as information about fees and service standards.
|Review Stage||Reference Document||Topics Included|
|Pre-merger notification||Procedures Guide for Notifiable Transactions and Advance Ruling Certificates|
|Merger Reviews: Fees and Service Standards Policy|
|Merger Reviews: Fees and Service Standards Handbook|
|Pre-Merger Notification Interpretation Guidelines|
|Notifiable transaction (template)|
|Hostile Transactions Interpretation Guidelines|
|Advance Ruling Certificate (ARC) requests||Procedures Guide for Notifiable Transactions and Advance Ruling Certificates|
|Merger review||Merger Enforcement Guidelines|
|Supplementary Information Request||Merger Review Process Guidelines|
|Merger Reviews involving Efficiencies||Model Timing Agreement for Merger Reviews involving Efficiencies|
|Negotiated remedies||Merger Remedies in Canada|
|Merger Consent Agreement (template)|
|Merger Remedies Study|
|Concluded mergers||Records of concluded merger reviews|