Federal Court of Appeal confirms that the Competition Tribunal has the power to temporarily block mergers

From: Competition Bureau Canada

News release

Court grants Commissioner’s appeal following Tribunal decision which concluded the contrary

February 14, 2022 – GATINEAU, QC – Competition Bureau

The Commissioner of Competition welcomes a recent ruling from the Federal Court of Appeal (FCA) which confirms that the Competition Tribunal has the power to temporarily block mergers in urgent circumstances.

The Commissioner had appealed a July 2021 decision related to the Competition Bureau’s ongoing challenge of a merger between rival oil and gas waste service providers Secure and Tervita.

On June 29, 2021, the Commissioner filed applications under section 92 and 104 of the Competition Act to block the transaction and to obtain an injunction preventing the closing of the transaction, respectively. The Bureau requested the Tribunal issue an order to prevent the companies from completing the merger until the 104 injunction application could be heard and decided; however, the Tribunal concluded that it lacked the power to grant the temporary relief requested. The merging parties closed the transaction shortly thereafter.

In its decision, the FCA determined that the Tribunal erred in its conclusion – meaning that, as appropriate, it does have the power to prevent the closing of a transaction until an application for an interlocutory order can be heard in full.

In future, the Bureau will continue to use all of the tools at its disposal in keeping with its mandate to protect competition and the public interest.

Quick facts

  • An interim order is a court order that generally seeks to maintain the status quo until a matter is heard and a decision is rendered by the court.

  • Under section 92 of the Competition Act, if the Bureau determines that a merger is likely to substantially lessen or prevent competition, it may apply to the Tribunal for an order to prevent, dissolve or alter the merger.

  • Under section 104 of the Act, the Bureau may apply to the Tribunal for an interim order at the discretion of the court and for a period that the court considers necessary to meet the needs of the case.

  • While the transaction has closed, the Bureau’s section 92 application challenging the merger of Secure and Tervita remains before the Tribunal. The application is scheduled to be heard beginning in May 2022.

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The Competition Bureau is an independent law enforcement agency that protects and promotes competition for the benefit of Canadian consumers and businesses. Competition drives lower prices and innovation while fueling economic growth.

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