The Competition Act (8)
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Part IX
Notifiable Transactions
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Interpretation
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Definitions |
108. (1) In this Part,
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"operating business" «entreprise en
exploitation» |
"operating business" means a business undertaking in Canada
to which employees employed in connection with the undertaking ordinarily
report for work;
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"person" «personne» |
"person" means an individual, body corporate, unincorporated
syndicate, unincorporated organization, trustee, executor, administrator
or other legal representative, but does not include a bare trustee;
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"prescribed" « réglementaire » |
"prescribed" means prescribed by regulations made under
section 124;
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"voting share" «actions comportant
droit de vote» |
"voting share" means any share that carries voting rights
under all circumstances or by reason of an event that has occurred and
is continuing.
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Corporations controlled by Her Majesty |
(2) For the purposes of this Part, except for the purposes of section
113, one corporation is not affiliated with another corporation by reason
only of the fact that both corporations are controlled by Her Majesty
in right of Canada or a province, as the case may be.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 25.
For a better understanding of this section:
Guidelines - Notifiable Transactions and Advance
Ruling Certificates Under the Competition Act: Procedures Guide
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Application
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General limit relating to parties |
109. (1) This Part does not apply in respect of a proposed
transaction unless the parties thereto, together with their affiliates,
(a) have assets in Canada that exceed four hundred million
dollars in aggregate value, determined as of such time and in such
manner as may be prescribed, or such greater amount as may be prescribed;
or
(b) had gross revenues from sales in, from or into Canada,
determined for such annual period and in such manner as may be prescribed,
that exceed four hundred million dollars in aggregate value, or such
greater amount as may be prescribed.
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Parties to acquisition of shares |
(2) For the purposes of this Part, the parties to a proposed acquisition
of shares are the person or persons who propose to acquire the shares
and the corporation the shares of which are to be acquired.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 26.
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Application of Part |
110. (1) This Part applies only in respect of proposed transactions
described in this section.
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Acquisition of assets |
(2) Subject to sections 111 and 113, this Part applies in respect
of a proposed acquisition of any of the assets in Canada of an operating
business where the aggregate value of those assets, determined as of
such time and in such manner as may be prescribed, or the gross revenues
from sales in or from Canada generated from those assets, determined
for such annual period and in such manner as may be prescribed, would
exceed thirty-five million dollars or such greater amount as may be prescribed.
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Acquisition of shares |
(3) Subject to sections 111 and 113, this Part applies in respect
of a proposed acquisition of voting shares of a corporation that carries
on an operating business or controls a corporation that carries on an
operating business
(a) where
(i) the aggregate value of the assets in Canada, determined as
of such time and in such manner as may be prescribed, that are
owned by the corporation or by corporations controlled by that
corporation, other than assets that are shares of any of those
corporations, would exceed thirty-five million dollars, or such
greater amount as may be prescribed, or
(ii) the gross revenues from sales in or from Canada, determined
for such annual period and in such manner as may be prescribed,
generated from the assets referred to in subparagraph (i) would
exceed thirty-five million dollars, or such greater amount as may
be prescribed, and
(b) where, as a result of the proposed acquisition of the
voting shares, the person or persons acquiring the shares, together
with their affiliates, would own voting shares of the corporation
that in the aggregate carry more than
(i) twenty per cent or, if the person or persons own twenty per
cent or more before the proposed acquisition, fifty per cent of
the votes attached to all outstanding voting shares of the corporation,
in the case of the acquisition of voting shares of a corporation
any of the voting shares of which are publicly traded, or
(ii) thirty-five per cent or, if the person or persons own thirty-five
per cent or more before the proposed acquisition, fifty per cent
of the votes attached to all outstanding voting shares of the corporation,
in the case of the acquisition of voting shares of a corporation
none of the voting shares of which are publicly traded.
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Amalgamation |
(4) Subject to section 113, this Part applies in respect of a proposed
amalgamation of two or more corporations where one or more of those corporations
carries on an operating business or controls a corporation that carries
on an operating business where
(a) the aggregate value of the assets in Canada, determined
as of such time and in such manner as may be prescribed, that would
be owned by the continuing corporation that would result from the
amalgamation or by corporations controlled by the continuing corporation,
other than assets that are shares of any of those corporations, would
exceed seventy million dollars, or such greater amount as may be
prescribed; or
(b) the gross revenues from sales in or from Canada, determined
for such annual period and in such manner as may be prescribed, generated
from the assets referred to in paragraph (a) would exceed
seventy million dollars, or such greater amount as may be prescribed.
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Combination |
(5) Subject to sections 112 and 113, this Part applies in respect
of a proposed combination of two or more persons to carry on business
otherwise than through a corporation where one or more of those persons
propose to contribute to the combination assets that form all or part
of an operating business carried on by those persons, or corporations
controlled by those persons, and where
(a) the aggregate value of the assets in Canada, determined
as of such time and in such manner as may be prescribed, that are
the subject-matter of the combination would exceed thirty-five million
dollars, or such greater amount as may be prescribed; or
(b) the gross revenues from sales in or from Canada, determined
for such annual period and in such manner as may be prescribed, generated
from the assets referred to in paragraph (a) would exceed
thirty-five million dollars, or such greater amount as may be prescribed.
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Combination |
(6) Subject to sections 111, 112 and 113, this Part applies in respect
of a proposed acquisition of an interest in a combination that carries
on an operating business otherwise than through a corporation
(a) where
(i) the aggregate value of the assets in Canada, determined as
of such time and in such manner as may be prescribed, that are
the subject-matter of the combination would exceed thirty-five
million dollars or such greater amount as may be prescribed, or
(ii) the gross revenues from sales in or from Canada, determined
for such annual period and in such manner as may be prescribed,
generated from the assets referred to in subparagraph (i) would
exceed thirty-five million dollars or such greater amount as may
be prescribed, and
(b) where, as a result of the proposed acquisition of the
interest, the person or persons acquiring the interest, together
with their affiliates, would hold an aggregate interest in the combination
that entitles the person or persons to receive more than thirty-five
per cent of the profits of the combination, or more than thirty-five
per cent of its assets on dissolution or, where the person or persons
acquiring the interest are already so entitled, to receive more than
fifty per cent of such profits or assets.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 27.
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Exemptions
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Acquisition of Voting Shares, Assets or Interests
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Acquisitions |
111. The following classes of transactions are exempt from
the application of this Part:
(a) an acquisition of real property or goods in the ordinary
course of business if the person or persons who propose to acquire
the assets would not, as a result of the acquisition, hold all or
substantially all of the assets of a business or of an operating
segment of a business;
(b) an acquisition of voting shares or of an interest in
a combination solely for the purpose of underwriting the shares or
the interest, within the meaning of subsection 5(2);
(c) an acquisition of voting shares, an interest in a combination
or assets that would result from a gift, intestate succession or
testamentary disposition;
(d) an acquisition of collateral or receivables, or an acquisition
resulting from a foreclosure or default or forming part of a debt
work-out, made by a creditor in or pursuant to a credit transaction
entered into in good faith in the ordinary course of business;
(e) an acquisition of a Canadian resource property, as defined
in subsection 66(15) of the Income Tax Act, pursuant to an
agreement in writing that provides for the transfer of that property
to the person or persons acquiring the property only if the person
or persons acquiring the property incur expenses to carry out exploration
or development activities with respect to the property; and
(f) an acquisition of voting shares of a corporation pursuant
to an agreement in writing that provides for the issuance of those
shares only if the person or persons acquiring them incur expenses
to carry out exploration or development activities with respect to
a Canadian resource property, as defined in subsection 66(15) of
the Income Tax Act, in respect of which the corporation has
the right to carry out those activities where the corporation does
not have any significant assets other than that property.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 29, c. 31, s.
229.
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Combinations
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Combinations that are joint ventures |
112. A combination is exempt from the application of this Part
if
(a) all the persons who propose to form the combination are
parties to an agreement in writing or intended to be put in writing
that imposes on one or more of them an obligation to contribute assets
and governs a continuing relationship between those parties;
(b) no change in control over any party to the combination
would result from the combination; and
(c) the agreement referred to in paragraph (a) restricts
the range of activities that may be carried on pursuant to the combination,
and contains provisions that would allow for its orderly termination.
R.S., 1985, c. 19 (2nd Supp.), s. 45.
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General
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General exemptions |
113. The following classes of transactions are exempt from
the application of this Part:
(a) a transaction all the parties to which are affiliates
of each other;
(a.1) a transaction in respect of which the Minister of Finance
has certified to the Commissioner under paragraph 94(b) that
it is, or would be, in the public interest;
(b) a transaction in respect of which the Commissioner has
issued a certificate under section 102;
(c) a transaction in respect of which the Commissioner or
a person authorized by the Commissioner has waived the obligation
under this Part to notify the Commissioner and supply information
because substantially similar information was previously supplied
in relation to a request for a certificate under section 102; and
(d) such other classes of transactions as may be prescribed.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1991, c. 45, s. 550, c. 46,
s. 594, c. 47, s. 717; 1999, c. 2, ss. 30, 37; 2001, c. 9, s. 580.
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Notice and Information
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Notice of proposed transaction |
114. (1) Subject to this Part, where
(a) a person, or two or more persons pursuant to an agreement
or arrangement, propose to acquire assets in the circumstances set
out in subsection 110(2), to acquire shares in the circumstances
set out in subsection 110(3) or to acquire an interest in a combination
in the circumstances set out in subsection 110(6),
(b) two or more corporations propose to amalgamate in the
circumstances set out in subsection 110(4), or
(c) two or more persons propose to form a combination in
the circumstances set out in subsection 110(5),
the parties to the proposed transaction shall, before the transaction
is completed, notify the Commissioner that the transaction is proposed
and supply the Commissioner with information in accordance with this
Part.
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Information required |
(2) The information required under subsection (1) is, at the option
of the person supplying the information, prescribed short form information
or prescribed long form information but, where a person provides prescribed
short form information, the Commissioner or a person authorized by the
Commissioner may, within fourteen days after receiving it, require the
person to supply the prescribed long form information.
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Corporation whose shares are acquired |
(3) Where a proposed transaction is an acquisition of shares and the
Commissioner receives information supplied under subsection (1) by a
party to the transaction, other than the corporation whose shares are
being acquired, before receiving such information from the corporation,
(a) the Commissioner shall immediately notify the corporation
that the Commissioner has received from that party the prescribed
short form information or prescribed long form information, as the
case may be;
(b) the corporation shall supply the Commissioner with the
prescribed short form information within ten days after being notified
under paragraph (a) or the prescribed long form information
within twenty days after being so notified, as the case may be; and
(c) where the corporation supplies the prescribed short form
information, the Commissioner may require the corporation to supply
the prescribed long form information and the corporation shall supply
it within twenty days after being so required by the Commissioner.
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Notice and information |
(4) Any of the persons required to give notice and supply information
under this section may
(a) if duly authorized to do so, give notice or supply information
on behalf of and in lieu of any of the others who are so required
in respect of the same transaction; or
(b) give notice or supply information jointly with any of
those others.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 31, c. 31, s.
53(F).
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Prior notice of acquisitions |
115. (1) It is not necessary to comply with section 114 in
respect of a proposed acquisition of voting shares or of an interest
in a combination where a limit set out in subsection 110(3) or (6) would
be exceeded as a result of the proposed acquisition within three years
immediately following a previous compliance with section 114 required
in relation to the same limit.
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Notice of future acquisition |
(2) Where a person or persons who propose to acquire voting shares
or an interest in a combination are required to comply with section 114
because the twenty or thirty-five per cent limit set out in subsection
110(3) or the thirty-five per cent limit set out in subsection 110(6)
would be exceeded as a result of the acquisition, the person or persons
may, at the time of the compliance, give notice to the Commissioner of
a proposed further acquisition of voting shares or of an interest in
a combination that would result in a fifty per cent limit set out in
that subsection being exceeded, and supply the Commissioner with a detailed
description in writing of the steps to be carried out in the further
acquisition.
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Exemption for further acquisitions of voting shares |
(3) It is not necessary to comply with section 114 in respect of a
proposed further acquisition referred to in subsection (2) if
(a) notice of the further acquisition is given to the Commissioner
under subsection (2) and it is carried out in accordance with the
description supplied under that subsection; and
(b) an additional notice of the further acquisition is given
to the Commissioner in writing within twenty-one, and at least seven,
days before the further acquisition.
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Limitation |
(4) Subsection (3) does not apply in respect of a further acquisition
unless the further acquisition is completed within one year after notice
of it is given under subsection (2).
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, ss. 32, 37.
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Where information cannot be supplied |
116. (1) If any of the information required under section 114
is not known or reasonably obtainable, or cannot be obtained without
breaching a confidentiality requirement established by law or without
creating a significant risk that confidential information will be used
for an improper purpose or that information that should, for commercial
reasons, be kept confidential will be disclosed to the public, the person
who is supplying the information may, in lieu of supplying the information,
inform the Commissioner under oath or solemn affirmation of the matters
in respect of which information has not been supplied and why it has
not been obtained.
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Where information not relevant |
(2) If any of the information required under section 114 could not,
on any reasonable basis, be considered to be relevant to an assessment
by the Commissioner as to whether the proposed transaction would or would
be likely to prevent or lessen competition substantially, the person
who is supplying the information may, in lieu of supplying the information,
inform the Commissioner under oath or solemn affirmation of the matters
in respect of which information has not been supplied and why the information
was not considered relevant.
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Where information previously supplied |
(2.1) If any of the information required under section 114 has previously
been supplied to the Commissioner, the person who is supplying the information
may, in lieu of supplying it, inform the Commissioner under oath or solemn
affirmation of the matters in respect of which information has previously
been supplied and when it was supplied.
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Commissioner may require information |
(3) Where a person chooses not to supply the Commissioner with information
required under section 114 and so informs the Commissioner in accordance
with subsection (2) or (2.1) and the Commissioner or a person authorized
by the Commissioner notifies that person, within seven days after the
Commissioner is so informed, that the information is required, the person
shall supply the Commissioner with the information.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, ss. 33, 37.
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Saving |
117. (1) Nothing in section 114 requires any person who is
a director of a corporation to supply information that is known to that
person by virtue only of his position as a director of an affiliate of
the corporation that is neither a wholly-owned affiliate nor a wholly-owning
affiliate of the corporation.
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Wholly-owned affiliate |
(2) For the purposes of subsection (1), one corporation is the wholly-owned
affiliate of another corporation if all its outstanding voting shares,
other than shares necessary to qualify persons as directors, are beneficially
owned by that other corporation directly, or indirectly through one or
more affiliates where all the outstanding voting shares of the affiliates,
other than shares necessary to qualify persons as directors, are beneficially
owned by that other corporation or each other.
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Wholly-owning affiliate |
(3) For the purposes of subsection (1), one corporation is the wholly-owning
affiliate of another corporation if it beneficially owns all the outstanding
voting shares of that other corporation, other than shares necessary
to qualify persons as directors, directly, or indirectly through one
or more affiliates where all the outstanding voting shares of the affiliates,
other than shares necessary to qualify persons as directors, are beneficially
owned by the corporation or each other.
R.S., 1985, c. 19 (2nd Supp.), s. 45.
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Information to be certified |
118. The information supplied to the Commissioner under section
114 shall be certified on oath or solemn affirmation
(a) in the case of a corporation supplying the information,
by an officer thereof or other person duly authorized by the board
of directors or other governing body of the corporation, or
(b) in the case of any other person supplying the information,
by that person,
as having been examined by that person and as being, to the best of
his knowledge and belief, correct and complete in all material respects.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 37.
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Where transaction not completed |
119. Where notice is given and information supplied in respect
of a proposed transaction under section 114 but the transaction is not
completed within one year thereafter or such longer period as the Commissioner
may specify in any particular case, section 114 applies as if no notice
were given or information supplied.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 37.
120. to 122. [Repealed, 1999, c. 2, s. 34]
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Completion of Proposed Transactions
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Time when transaction may not proceed |
123. (1) A proposed transaction referred to in section 114
shall not be completed before the expiration of
(a) fourteen days after the day on which information required
under section 114 has been received by the Commissioner, where the
information is prescribed short form information and the Commissioner
has not, within that time, required prescribed long form information
to be supplied under that section,
(b) except as provided in paragraph (c), forty-two
days after the day on which information required under section 114
has been received by the Commissioner, where the information is prescribed
long form information, or
(c) where the proposed transaction is an acquisition of voting
shares that is to be effected through the facilities of a stock exchange
in Canada and the information supplied is prescribed long form information,
twenty-one trading days, or such longer period of time, not exceeding
forty-two days, as may be allowed by the rules of the stock exchange
before shares must be taken up, after the day on which the information
required under section 114 has been received by the Commissioner,
unless the Commissioner or a person authorized by the Commissioner,
before the expiration of that time, notifies the persons who are required
to give notice and supply information that the Commissioner does not,
at that time, intend to make an application under section 92 in respect
of the proposed transaction.
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Acquisition of voting shares |
(2) In the case of an acquisition of voting shares to which subsection
114(3) applies, the periods of time referred to in subsection (1) shall
be determined without reference to the day on which the information required
under section 114 is received by the Commissioner from the corporation
whose shares are being acquired.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 35.
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Regulations
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Regulations |
124. (1) The Governor in Council may make regulations prescribing
anything that is by this Part to be prescribed.
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Publication of proposed regulations |
(2) Subject to subsection (3), a copy of each regulation that the
Governor in Council proposes to make under subsection (1) shall be published
in the Canada Gazette at least sixty days before the proposed
effective date thereof and a reasonable opportunity shall be afforded
to interested persons to make representations with respect thereto.
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Exception |
(3) No proposed regulation need be published under subsection (2)
if it has previously been published pursuant to that subsection, whether
or not it has been amended as a result of representations made pursuant
to that subsection.
R.S., 1985, c. 19 (2nd Supp.), s. 45.
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Part X
General
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Commissioner's Opinions
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Application for written opinion |
124.1 (1) Any person may apply to the Commissioner, with supporting
information, for an opinion on the applicability of any provision of
this Act or the regulations to conduct or a practice that the applicant
proposes to engage in, and the Commissioner may provide a written opinion
for the applicant's guidance.
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Opinion binding |
(2) If all the material facts have been submitted by or on behalf
of an applicant for an opinion and they are accurate, a written opinion
provided under this section is binding on the Commissioner. It remains
binding for so long as the material facts on which the opinion was based
remain substantially unchanged and the conduct or practice is carried
out substantially as proposed.
2002, c. 16, s. 15.
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References to Tribunal
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Reference if parties agree |
124.2 (1) The Commissioner and a person who is the subject
of an inquiry under section 10 may by agreement refer to the Tribunal
for determination any question of law, mixed law and fact, jurisdiction,
practice or procedure, in relation to the application or interpretation
of Part VII.1 or VIII, whether or not an application has been made under
Part VII.1 or VIII.
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Reference by Commissioner |
(2) The Commissioner may, at any time, refer to the Tribunal for determination
a question of law, jurisdiction, practice or procedure, in relation to
the application or interpretation of Parts VII.1 to IX.
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Reference by agreement of parties to a private action |
(3) A person granted leave under section 103.1 and the person against
whom an order is sought under section 75 or 77 may by agreement refer
to the Tribunal for determination any question of law, or mixed law and
fact, in relation to the application or interpretation of Part VIII,
if the Tribunal grants them leave. They must send a notice of their application
for leave to the Commissioner, who may intervene in the proceedings.
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Reference procedure |
(4) The Tribunal shall decide the questions referred to it informally
and expeditiously, in accordance with any rules on references made under
section 16 of the Competition Tribunal Act.
2002, c. 16, s. 15.
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Representations to Boards, Commissions
or Other Tribunals
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Representations to federal boards, etc. |
125. (1) The Commissioner, at the request of any federal board,
commission or other tribunal or on his own initiative, may, and on direction
from the Minister shall, make representations to and call evidence before
the board, commission or other tribunal in respect of competition, whenever
such representations are, or evidence is, relevant to a matter before
the board, commission or other tribunal, and to the factors that the
board, commission or other tribunal is entitled to take into consideration
in determining the matter.
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Definition of "federal board, commission or other
tribunal" |
(2) For the purposes of this section, "federal board, commission
or other tribunal" means any board, commission, tribunal or person
that carries on regulatory activities and is expressly charged by or
pursuant to an enactment of Parliament with the responsibility of making
decisions or recommendations related directly or indirectly to the production,
supply, acquisition or distribution of a product.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 37.
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Representations to provincial boards, etc. |
126. (1) The Commissioner, at the request of any provincial
board, commission or other tribunal, or on his own initiative with the
consent of the board, commission or other tribunal, may make representations
to and call evidence before the board, commission or other tribunal in
respect of competition, whenever such representations are, or evidence
is, relevant to a matter before the board, commission or other tribunal,
and to the factors that the board, commission or other tribunal is entitled
to take into consideration in determining the matter.
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Definition of "provincial board, commission or other
tribunal" |
(2) For the purposes of this section, "provincial board, commission
or other tribunal" means any board, commission, tribunal or person
that carries on regulatory activities and is expressly charged by or
pursuant to an enactment of the legislature of a province with the responsibility
of making decisions or recommendations related directly or indirectly
to the production, supply, acquisition or distribution of a product.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 37.
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Report to Parliament
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Annual report |
127. The Commissioner shall report annually to the Minister
on the operation of the Acts referred to in subsection 7(1), and the
Minister shall cause the report to be laid before each House of Parliament
on any of the first fifteen days after the Minister receives the report
on which that House is sitting.
R.S., 1985, c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 36.
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Regulations
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Regulations |
128. (1) The Governor in Council may make such regulations
as are necessary for carrying out this Act and for the efficient administration
thereof.
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Publication of proposed regulations |
(2) Subject to subsection (3), a copy of each regulation that the
Governor in Council proposes to make under subsection (1) shall be published
in the Canada Gazette at least sixty days before the proposed
effective date thereof and a reasonable opportunity shall be afforded
to interested persons to make representations with respect thereto.
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Ex
ception |
(3) No proposed regulation need be published under subsection (2)
if it has previously been published pursuant to that subsection, whether
or not it has been amended as a result of representations made pursuant
to that subsection.
R.S., 1985, c. 19 (2nd Supp.), s. 45.
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