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

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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%)

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Blakes Notes

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