Welcome to the June issue of Blakes Competitive Edge, a monthly publication of the Blakes Competition, Antitrust &
Key Highlights
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The Bureau completes 74 merger reviews through the end of
- The Bureau publishes wage-fixing and no-poach enforcement guidelines in advance of the new criminal prohibition coming into effect on
June 23, 2023 . - The Bureau files an application with the
Competition Tribunal alleging that Cineplex advertised misleading ticket prices. - In a report to
Health Canada , the Bureau makes recommendations to promote competition in the cannabis industry. - Primary industries: wholesale trade (19%); real estate and rental and leasing (13%); construction (13%); manufacturing (13%); utilities (13%); mining, quarrying, and oil and gas extraction (13%)
- One consent agreement (remedy) filed
- Six transactions received an Advance Ruling Certificate (38%); nine transactions received a No Action Letter (56%)
- Primary industries: manufacturing (23%); mining, quarrying, and oil and gas extraction (19%); finance and insurance (15%); real estate and rental and leasing (11%); utilities (7%); wholesale trade (7%)
- Two consent agreements (remedies) filed
- One judicial decision filed
- 30 transactions received an Advance Ruling Certificate (41%); 42 transactions received a No Action Letter (55%)
- On
May 31, 2023 , the Bureau announced that it had entered into a consent agreement withSuperior Plus Corp. (Superior) to resolve the Bureau's concerns that Superior's acquisition ofCertarus Ltd. would likely result in a substantial lessening of competition for the retail supply of portable heating fuels for industrial customers in northernOntario . This transaction and associated consent agreement, on which Blakes acted for Superior, shows that complex matters can be completed in a timely fashion with proactive engagement. - On
April 20, 2023 , the Governor in Council approved an application to vary the terms and conditions governing the merged entity operating asCanadian North Inc. The parties to the 2019First Air andCanadian North Inc. merger undertook to comply with the original terms and conditions to secure the Governor in Council's approval of the transaction under Subsection 53.2 of the Canada Transportation Act. Sections 53.1 and 53.2 of the Canada Transportation Act create a parallel merger review process for mergers that involve a transportation undertaking and which are notifiable under the Competition Act. Canadian North sought relief from the original terms and conditions imposed in 2019 after travel restrictions imposed in response to the COVID-19 pandemic limited Canadian North's ability to turn a profit. The Commissioner of Competition reviewed and did not comment on the amended terms and conditions. The amended terms and conditions allow Canadian North to modify and reduce the frequency and the capacity of its schedules to reflect current demand and to increase fares subject to certain limits, curb Canadian North's profits and make Canadian North subject to a quarterly audit by an independent monitor, among other requirements. These amended terms and conditions will remain in effect until the end ofJune 2026 , when the original order will expire. - On
May 18, 2023 , the Bureau announced that it had filed an application with theCompetition Tribunal alleging thatCineplex Inc. had engaged in deceptive marketing by imposing aC$1.50 per ticket fee at checkout for movie tickets purchased online or on Cineplex's mobile application. This is the first application relying on the new section 74.01(1.1) of the Competition Act, which was introduced in 2022. The new provision provides that making a representation of a price that is not attainable due to fixed obligatory charges or fees ("drip pricing") constitutes a false or misleading representation for the purposes of section 74.01(1), except where such fees represent charges or fees imposed by government (e.g., taxes). The Bureau is seeking a declaration that Cineplex has engaged in reviewable conduct and an order prohibiting the continuation of the conduct. It is also seeking orders requiring Cineplex to (1) pay an administrative monetary penalty and (2) pay up to the total amounts Cineplex received as payment for the relevant products, for distribution among persons to whom such tickets were sold. - On
May 30, 2023 , the Bureau published its final enforcement guidelines for the new criminal prohibition against agreements between employers to fix, maintain, decrease or control wages or other terms or conditions of employment (wage-fixing agreements) or not to solicit or hire each other's employees (no-poach agreements). The prohibition comes into force onJune 23, 2023 . While these guidelines are not binding, they provide insight into the Bureau's enforcement approach to the new provision. Key changes in the final guidance clarify that the Bureau is unlikely to investigate pre-existing no-poach or wage-fixing agreements where parties to the agreements take no steps to reaffirm or implement the provision on or afterJune 23, 2023 . Further, the changes recognize the important role that labour-related restraints can play in business agreements and arrangements, such as franchise agreements and certain service-provider–client relationships. For more information regarding the enforcement guidelines, see ourJune 2023 Blakes Bulletin: New Enforcement Guidelines for Wage-Fixing and No-Poach Agreements. - On
May 26, 2023 , the Bureau published its submission toHealth Canada and the members of the Cannabis Act legislative-reviewExpert Panel in support ofHealth Canada's legislative review of the Cannabis Act. In its report, the Bureau identified five barriers to competition for cannabis producers in relation to entry and expansion in the industry: licensing requirements and regulatory compliance costs; limits on the THC content of edible cannabis products; prohibitions on cannabis promotion, packaging and labelling;Canada's excise duty framework; and a lack of industry standardization (the latter two barriers are outside the scope of the legislative review). The Bureau provided three recommendations to support the goal of modernizing policies and promoting a more competitive legal cannabis industry, including forHealth Canada to (1) review the cannabis licensing process and regulatory compliance to ensure minimal intrusion to competition, (2) review and consider adjusting limits on the THC content of edible cannabis products to allow legal cannabis producers to meet consumer demand and better compete with the illicit market, and (3) review and consider easing restrictions on cannabis promotion, packaging and labelling to empower consumers to make informed purchasing decisions and provide cannabis producers with more flexibility to compete and innovate. - On
June 9, 2023 , the Bureau announced that theCanadian Digital Regulators Forum (Forum) was established via a partnership between theCompetition Bureau , theCanadian Radio-television andTelecommunications Commission (CRTC) and theOffice of the Privacy Commissioner of Canada (OPC). These three agencies have agreed to exchange best practices, conduct research and collaborate on matters of common interest, such as artificial intelligence and data portability. The Terms of Reference of the Forum state that the Forum's purpose is to strengthen information-sharing and collaboration on subject matters of common interest that relate to digital markets or platforms. - Zero reviewable investment approvals and 80 notifications filed (73 for acquisitions and seven for the establishment of a new Canadian business)
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Country of ultimate control:
United States (64%);Austria (11%);United Kingdom (6%);China (4%) - Two reviewable investment approvals and 89 notifications filed (64 for acquisitions and 25 for the establishment of a new Canadian business)
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Country of ultimate control:
U.S. (56%);Austria (9%);U.K. (5%);China (3%);France (3%) - One reviewable investment approval and 18 notifications filed (11 for acquisitions and seven for the establishment of a new Canadian business)
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Country of ultimate control:
U.S. (37%);Pakistan (16%);India (11%);France (11%) - Three reviewable investment approvals and 187 notifications filed (148 for acquisitions and 39 for the establishment of a new Canadian business)
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Country of ultimate control:
U.S. (57%);Austria (9%);U.K. (6%);France (4%);China (3%) -
Browse our thought-leadership insights from the Competition, Antitrust &
Foreign Investment group to learn more.
Merger Monitor
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16 merger reviews completed
January –
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74 merger reviews completed
Merger Enforcement Activity
Terms and conditions governing merger of
Other Enforcement Activity
Non-Enforcement Activity
Investment Canada Act
Non-Cultural Investments
January –
Blakes Notes
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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