The Competitor : Canada Competition / Antitrust Blog by Stikeman Elliott Lawyers & Attorneys

Susan M. Hutton

The Competition Bureau has settled a number of long-running merger reviews in recent months:

• On November 4, 2009, the Competition Bureau announced that it had reached an agreement with Agrium Inc. to resolve competition concerns related to Agrium's proposed acquisition of CF Industries Holdings Inc. Under the terms of the Consent Agreement, if Agrium is successful in its bid, it will divest half of its nitrogen-based fertilizer production facility in Carseland, Alberta and will be required to supply additional product to Terra Industries, Inc., a new entrant into Western Canadian wholesale nitrogen fertilizer markets. 

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Eliot N. Kolers

The Competition Tribunal (the "Tribunal") released a decision in Nadeau Poultry Farm Limited v. Westco Inc., et al (2009 Comp Trib 6), in which it made several valuable clarifications in its interpretation of the "refusal to deal" provision contained in section 75 of the Competition Act (the "Act"). Under this provision, a supplier of a product can be ordered to sell its product to a particular customer if certain criteria are met. This case, which came before the Tribunal through the private access provisions allowing private parties to bring cases before the Tribunal, sheds light on the Tribunal's interpretation of the concepts of "ample supply", "as a result of insufficient competition", "usual trade terms", and "adverse impact on competition", all in the context of a supply-managed industry.
 

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Susan M. Hutton

The National Security Review of Investments Regulations, establishing the process for national security reviews under the Investment Canada Act (ICA), came into force on September 17, 2009. While the new ability of the Canadian government to screen foreign investment on the basis of national security reflects similar legislation elsewhere (e.g., the so-called Exon-Florio Act in the United States, pursuant to which many investments in the United States are reviewed by the Committee on Foreign Investment in the United States, or CFIUS), the procedure and time-lines are quite different.
 

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Katherine L. Kay and Kevin Rushton

On November 12, 2009, the British Columbia Court of Appeal unanimously allowed an appeal from the dismissal of a class certification motion in an action alleging price-fixing against certain manufacturers of DRAM (dynamic random access memory) chips, which are found in a wide variety of electronics products. The B.C. Court of Appeal certified a class of direct and indirect purchasers of DRAM and products containing DRAM.1

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