(c) an entity other than a corporation is controlled by an entity or individual if the entity or individual, directly or indirectly, whether through one or more subsidiaries or otherwise, holds an interest in the entity that is not a corporation that entitles them to receive more than 50% of the profits of that entity or more than 50% of its assets on dissolution. COMPETITION AND CONSUMER ACT 2010 - SECT 96 Acts constituting engaging in resale price maintenance (1) Subject to this Part, a corporation (in this section called the supplier) engages in the practice of resale price maintenance if that corporation does an act referred to in any of the paragraphs of subsection (3). Where public interest objectives are at play in Canadian merger control outside of the scope of the Bureau’s mandate, the Bureau will cooperate fully with other agencies or parts of government according to the various applicable merger laws in Canada and the policies guiding coordination. Shaded provisions are … (c)  the offering of goods for sale at a price less than a price The notification of the merger shall be published within five business days after receipt by the FCCPC. In assessing whether a merger involving a transportation undertaking raises issues or concerns with respect to the public interest as it relates to national transportation, Transport Canada takes into consideration economic, environmental, safety, security and social factors. The most notable examples of such reviews by the Minister of Finance occurred in 1998 when the Royal Bank of Canada and the Bank of Montreal announced their intention to merge, and shortly thereafter Toronto‑Dominion Bank and the Canadian Imperial Bank of Commerce also announced a merger agreement. Competition Bureau releases model timing agreement for mergers involving claimed efficiencies, May 21, 2020 - GATINEAU, QC - Competition Bureau. 96 (1) The Tribunal shall not make an order under section 92 if it finds that the merger or proposed merger in respect of which the application is made has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition that will result or is likely to result from the merger or proposed merger and that the gains in efficiency would not likely be attained if the order were made. Section 94 of the Act states that “the Tribunal shall not make an order under section 92 in respect of…, a merger or proposed merger approved under subsection 53.2(7) of the. Secondly, an undertaking shall also not be deemed to be under control as defined in the Act where control is acquired by an office holder according to the laws of the Federation relating to liquidation, insolvency, or analogous proceedings. 97 Limitation period. Response of the Government, Parliament of Canada, June 23, 2003. Section 96 of the Act, often referred to as the “efficiencies defence”, creates a framework for the Tribunal to weigh the efficiency gains that are likely to be brought about by a merger against the anti‑competitive effects that are likely to result from the merger, if the defence is raised by the merging parties. The threshold requirements under the FCCPA discussed in question 2.1 above will determine whether such a merger is notifiable. (d) otherwise than as described in paragraphs (a) to (c). (2)  Subject to this Part, a person (not being a corporation and also in However, apart from its power to invalidate or void a merger, the FCCPC has the power to impose administrative fines on parties for breach of the provisions of the Act. Public interest considerations also arguably arise in the context of Canada’s unique framework for considering merger efficiencies. In other cases, such as in telecommunications and broadcasting, where a merger is subject to review by both the Bureau and either the CRTC or Minister of Innovation, Science and Economic Development, the reviews occur concurrently. 3.10      Who is responsible for making the notification? In merger review, broader public interests may be a consideration in assessing both the effects of a proposed transaction and the efficiencies that may be realized by the proposed transaction. Economic considerations could include impacts on users of the transportation system; the price and the level of access to services and facilities; impacts on communities, including employment and the availability of affordable service; impacts on other transportation undertakings or sectors; impacts on trade, workforce expertise, productivity, innovation and overall Canadian competitiveness; and impacts on the undertakings involved, including the financial viability of the merged entity. Prior to the enactment of the Federal Competition and Consumer Protection Act, ... the FCCPC has the power to impose administrative fines on parties for breach of the provisions of the Act. This court makes orders for shareholders’ meetings to consider the merger scheme. references to: (a)  the advertising of goods for sale at a price less than a price Either the Minister of Innovation, Science and Economic Development Canada (formerly the Minister of Industry) or the Minister of Canadian Heritage, as applicable,Footnote 10 must decide whether the transaction in question is likely to be of “net benefit” to Canada. See also our response to question 2.7. This also connotes that regardless of the enactment of the FCCPA, SEC’s rules and regulations on mergers and other business combinations remains in force until the FCCPC issues a notice to the contrary. The result has been an overhaul of approval processes which is likely to positively affect merger control regulation. What are the risks in completing before clearance is received? Subject to the exceptions set out in sections 94 to 96 of the Act. 92 (1) Where, on application by the Commissioner, the Tribunal finds that a merger or proposed merger prevents or lessens, or is likely to prevent or lessen, competition substantially. Propane was the first challenged merger in Canada allowed to proceed on the basis of the efficiencies defence, and the issue of income redistribution was addressed thoroughly by the courts. The three general criteria considered by the government were whether the mergers would: In December of 1998, the Bureau issued letters to the banks, with a copy to the Minister of Finance, outlining its conclusions in respect of both mergers. “authorised officer” means any public officer appointed as an authorised officer under section 3(2); [Act … If the conditions are acceptable to the parties, they may proceed with the merger. It is possible for FCCPC to use its power under s.93 to require notification for a merger which may not meet the mandatory requirement of large merger threshold based on its consideration such as the digital value of the merger which may not be reflected in the financial value of the transaction. The Commission is yet to make any regulation as at the time of this response. "Basem Al Imam - Head of Legal Affairs Division, Arab Bank plc, © 2002-2020 Copyright: ICLG.com | Our Privacy, Basem Al Imam - Head of Legal Affairs Division, Arab Bank plc. However, Section 121 (i) (d) was retained allowing SEC to determine whether all shareholders are fairly, equitably and similarly treated and given sufficient information with regards to mergers. Since joint venture transactions may play out in different scenarios, it is the nature of the joint venture that would determine whether it falls within the change of control concept.