Competition Bureau's new powers resulting in increased merger scrutiny?
An article in the Globe and Mail considers whether enhancements to the Competition Bureau's enforcement tools have led to more aggressive scrutiny of corporate mergers in Canada. Some in the legal community see an increase in the Competition Bureau's demands for remedies emerging from the Bureau's ability, since 2009, to request additional documents and information from merging parties without having to obtain court approval, and to extend waiting periods while such requests are complied with. Others, however, disagree that the Bureau's substantive approach to merger review has been affected by the enhanced investigative powers. According to the head of Stikeman Elliott's Competition Law practice group, Lawson Hunter, who was quoted in the article,
I don’t see any evidence that the bureau is getting more aggressive in how they are analyzing mergers because of these changes at all.
Commissioner of Competition Melanie Aitken, has also suggested that the Bureau is taking a cautious approach to its expanded powers. In a September 2010 speech to the CBA Fall Competition Law Conference, Ms. Aitken stated:
The Guidelines [the Bureau's Merger Review Process Guidelines, which explain the Bureau's approach to administering Canada's merger review process] also emphasized our commitment to use our new information gathering powers judiciously, only in respect of those transactions that raise significant competition issues and for which the Bureau requires additional information to conduct a sufficiently thorough review.
Since the introduction of the amendments in 2009, the Bureau has issued only ten SIRs [Supplementary Information Requests, also called "second requests" in the United States]. To put this into perspective, the Bureau has received more than 300 merger filings over this same period, approximately 90% of which were cleared within the initial 30-day review period.
