On May 29, 2012, the Competition Tribunal ruled in favour of the Commissioner of Competition, and ordered CCS Corporation to divest a hazardous waste landfill site, the acquisition of which the Commissioner had alleged would result in a substantial prevention of competition in the market for hazardous waste disposal in northeastern British Columbia. This was the first contested challenge to a merger by the Commissioner since 2005.
Complete Environmental had received regulatory approval to open the Babkirk landfill in February 2010, and had not yet started construction when CCS Corporation acquired the site. CCS already operates the only two operational secure landfills for hazardous waste in British Columbia. The Commissioner alleged that, through the acquisition of the Babkirk landfill, CCS had prevented the entry of a potential competitor, thereby substantially preventing competition.
While the transaction was not subject to pre-merger notification under the Competition Act, in Canada the Commissioner has jurisdiction to challenge even non-notifiable transactions. Such challenges can be launched for up to one year after closing. Despite not being notified, the Commissioner learned of the transaction prior to closing, and informed the parties of her objection to the transaction.
Of note, in her application, the Commissioner had sought dissolution as a possible remedy, which the respondents moved to challenge in November 2011 on the basis that dissolution was an overly broad and punitive measure. In the hearing on that motion Justice Simpson refused to grant summary disposition, and confirmed the possibility of dissolution as an effective remedy, concluding that it would be for the Tribunal to weigh the evidence for and against divestiture versus dissolution as potential remedies.
The release of the Tribunal’s decision in this case is still pending.