Reflections On The Canadian Merger Review Process: Time For Reform?

Previously published in Antitrust Report, issue 3, 2007.

INTRODUCTION

The Canadian pre-merger notification and review process, like those in other jurisdictions, has strengths and weaknesses. Legislative flexibility coupled with pragmatic enforcement by the Competition Bureau (the Bureau) has resulted in a system that imposes a light regulatory burden on parties to transactions that do not give rise to substantive competition law issues. At the other extreme is the eviscerated role of the Competition Tribunal (the Tribunal), which has effectively allowed the Bureau to enforce the Competition Act¹ without adequate judicial oversight in all but a handful of cases.

Fortunately for stakeholders, the strengths of the Canadian system largely outweigh its weaknesses. Indeed, along the spectrum of the world's merger regimes, the Canadian system ranks among the best by objective measure. For example, it is almost fully compliant with the merger review best