Blakes Competitive Edge': November 2022 Update November 21, 2022

• Published date: 24 November 2022
• Subject Matter: orporate/Commercial Law, Antitrust/Competition Law, M&A/Private Equity, Antitrust, EU Competition
• Law Firm: Blake, Cassels & Graydon LLP
• Author: Blakes Competition & Antitrust Group

Welcome to the November 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 in 2022 continues to slow, with 168 mergers completed through the end of August. This is a 7.6% decrease over the number of reviews completed in the same period in 2021 (182).
• Competition Tribunal releases decision rejecting the Bureau's challenge of Parrish & Heimbecker Limited's acquisition of a grain elevator in Virden Manitoba.
• Minister Champagne denies a request for the wholesale transfer of spectrum licences from Shaw to Rogers.
• Ministry of Innovation, Science and Industry publishes its annual Investment Canada Act report.
• Government of Canada issues new policy regarding Foreign Investments from State-Owned Enterprises in Critical Minerals and orders divestiture of investments by three Chinese companies in Canadian critical minerals businesses.

Merger Monitor

October 2022 Highlights

• Fifteen merger reviews completed
• Primary industries: wholesale trade (20%); manufacturing (20%) utilities (13%); finance and insurance (13%)
• Zero consent agreements (remedies) filed
• One judicial decision filed
• Six transactions received an Advance Ruling Certificate (40%) eight transactions received a No Action Letter (53%)

January - October 2022 Highlights

• 168 merger reviews completed
• Primary industries: real estate and rental and leasing (17%) manufacturing (14%); mining, quarrying, and oil and gas extraction (14%); wholesale trade (13%); finance and insurance (10%)
• Six consent agreements (remedies) filed
• One judicial decision filed
• 88 transactions received an Advance Ruling Certificate (52%); 73 transactions received a No Action Letter (43%)

Merger Enforcement Activity

Competition Tribunal issues summary of its decision in Parrish & Heimbecker, Limited

• On November 16, 2022, the Competition Tribunal (Tribunal) released its decision in Canada (Commissioner of Competition) v. Parrish & Heimbecker, Limited. The Tribunal concluded the Commissioner did not prove that the acquisition by Parrish & Heimbecker, Limited of one grain elevator in Virden, Manitoba, from Louis Dreyfus Company Canada ULC would substantially lessen price or non-price competition for the purchase of wheat and canola in the geographic area surrounding the elevator. The Tribunal found that the Commissioner's proposed product market was not grounded in commercial reality or in the evidence and that their "value-added" approach to defining the product market failed on the facts, from both a legal standpoint and an economic perspective. The Tribunal determined that the transaction's price effects for the purchase of both wheat and canola were immaterial, that there remained several effective competitors post-acquisition and that the combined shares were below the 35% safe-harbour threshold. The Bureau has announced that it is reviewing the Tribunal's decision and may take additional steps to challenge the acquisition. For more discussion on the case, refer to the January 2021 and February 2021 editions of Blakes Competitive Edge.

Minister Champagne denies request for wholesale transfer of spectrum licences from Shaw to Rogers

• On October 25, 2022, the Minister of Innovation, Science and Industry (Minister) released a statement officially denying the parties' request to approve the wholesale transfer of wireless spectrum licences from Shaw to Rogers in connection with Rogers' proposed acquisition of Shaw. Moreover, in respect of Shaw's proposal to sell Freedom Mobile to Vidéotron, the Minister stated that he would...