Competition Bureau Wins Secure-Tervita Challenge As Efficiencies Defence Fails

On March 3, 2023, the Competition Tribunal ("Tribunal") published an information note advising that it had granted in part the application pursuant to section 92 of the Competition Act (Canada) of the Commissioner of Competition ("Commissioner") seeking relief with respect to the acquisition (the "Merger") by SECURE Energy Services Inc. ("Secure") of Tervita Corporation ("Tervita"). Subsequently, on March 23, 2023, the Tribunal released its decision.

The Commissioner prevailed by showing that the Merger substantially lessened competition in 136 of 143 markets. The Tribunal concluded, subject to the efficiencies defence, that the divestiture of 29 facilities would be required to restore competition (the Commissioner had sought the divestiture of 41 facilities). Because Secure failed to prove that the relevant efficiencies generated by the Merger (that would be lost if the divestitures were ordered) would offset the anti-competitive effects, the Tribunal ordered