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

Mark Walli

Nearly three decades ago, the European Union’s highest court adopted a two-part test for “legal professional privilege” protecting lawyer-client communications: (1) the communication must involve legal advice given for the purpose of the client’s rights of defence, and (2) the advice must emanate from an “independent lawyer.”¹ Under the AM&S Europe test, communications between in-house counsel and company employees were found not to be protected by the privilege.  The Applicants in the recent case of Akzo Nobel Chemicals Ltd, joined by a host of European bar associations, the Netherlands and the United Kingdom as intervenors, asked the Court of Justice (ECJ) to relax or overrule the existing test and to extend the legal professional privilege to in-house counsel. In its decision released September 14, 2010, the ECJ squarely rejected their appeal and confirmed the existing rule.²

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Shawn Neylan

On October 5, 2010, the Competition Bureau announced that it has approved the divestiture of waste collection assets of BFI Canada Inc. in Calgary, Ottawa and Edmonton. The divestitures were announced as a remedy in relation to the merger of IESI-BFC Ltd. (BFI) and Waste Services Inc. on June 29, 2010. In each city, there was a different buyer, illustrating that in transactions involving smaller geographic markets, different buyers in each market may be acceptable. Divestitures in other cities are still required under the terms of the consent agreement.

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The Metropolitan Corporate Counsel recently published an article discussing the differences between Canadian competition law and American antitrust law as well as some of the legislative developments occurring in the two countries. Stikeman Elliott partner Jeffrey Brown was interviewed for the article.

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Susan Hutton and Megan MacDonald

On July 20, 2010, the Department of Canadian Heritage announced that it would undertake a review of its Revised Foreign Investment Policy in Book Publishing and Distribution (the Book Policy). The Book Policy, which governs foreign investment in the Canadian book industry, was introduced in 1985 and last revised in 1992. The review specifically seeks to determine whether the Book Policy continues:

• to provide opportunity for healthy competition in the book publishing, distribution and retail industries; and
• to contribute to the broader government objective of ensuring that Canadian cultural content is created and accessible in Canada and abroad.

To initiate the review process, the Department of Canadian Heritage released a discussion paper in July entitled Investing in the Future of Canadian Books. The paper outlined the motivations for the review, described the structure of the Canadian book industry and discussed the impact of existing foreign investment policies on a variety of cultural industries. The Department accepted responses to a questionnaire included in the discussion paper until mid-September 2010, and these submissions will be posted on the Canadian Heritage website for public comment throughout the month of October. The final consultation phase will involve roundtable discussions to be held in late 2010.

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The Competition Bureau announced on August 13 that it will not challenge the proposed acquisition of the over-the-air and specialty television businesses of Canwest Global Communications Corp. (Canwest) by Shaw Communications Inc. (Shaw). According to the Bureau, the transaction would not likely give rise to a substantial lessening or prevention of competition, being the statutory test for a merger challenge under the Competition Act. The Bureau based its conclusion on a number of factors, including effective remaining competition, the effect of the regulatory environment and a lack of relevant competitive concerns on the part of market participants. Concerns from market participants are typically a very important factor in the Bureau's assessment of the competitive impact of a transaction. In terms of the transaction's potential impact on advertising, the Bureau found that there were numerous alternative options available to advertisers. The transaction remains subject to CRTC approval.

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