Commissioner Wins Secure Energy Appeal: Key Takeaways

The Federal Court of Appeal's recent decision¹ upholding the Commissioner of Competition's largely successful challenge of Secure Energy Services Inc.'s acquisition of Tervita Corporation provides further evidence that the Commissioner can succeed in challenging mergers even when efficiencies are raised as a defence, despite oft-stated concerns about the defence. It has now been almost ten years since the courts have saved an anti-competitive merger on the basis of the efficiencies defence (which decision was reached on the narrowest of technical grounds). The Secure decision further limits the scope of the efficiencies defence, with particular implications for mergers involving multiple product or geographic markets.