Hostile Transactions Interpretation Guideline Number 1: Bureau Policy on Disclosure of Information
July 21, 2011
This publication is not a legal document. It contains general information and is provided for convenience and guidance in applying the Competition Act.
This publication replaces the following Competition Bureau publication:
Enforcement Guidelines — Hostile Transactions: Bureau Policy on Disclosure of Information
For information on the Competition Bureau's activities, please contact:Information Centre
50 Victoria Street
Gatineau QC K1A 0C9
Toll free: 1-800-348-5358
TTY (for hearing impaired): 1-800-642-3844
Web site: www.competitionbureau.gc.ca
This publication can be made available in alternative formats upon request. Contact the Competition Bureau's Information Centre at the numbers listed above.
Permission to Reproduce
Except as otherwise specifically noted, the information in this publication may be reproduced, in part or in whole and by any means, without charge or further permission from the Competition Bureau provided due diligence is exercised in ensuring the accuracy of the information reproduced; that the Competition Bureau is identified as the source institution; and that the reproduction is not represented as an official version of the information reproduced, nor as having been made in affiliation with, or with the endorsement of the Competition Bureau. For permission to reproduce the information in this publication for commercial redistribution, please Apply for Crown Copyright Clearance or write to:Communications and Marketing Branch
C.D. Howe Building
235 Queen Street
Ottawa, ON K1A 0H5
Aussi offert en français sous le titre Avis d'interprétation no 1 sur les transactions hostiles : Politique du Bureau sur la communication de renseignements
This Interpretation Guideline is issued by the Commissioner of Competition ("Commissioner"), who is responsible for the administration and enforcement of the Competition Act ("Act"). The purpose of this Guideline is to assist parties and their counsel in interpreting and applying the provisions of the Act relating to notifiable transactions. This Guideline sets out the general approach taken by the Competition Bureau ("Bureau") and supersedes all previous statements made by the Commissioner or other Bureau officials. This Guideline is not intended to be a binding statement of how discretion will be exercised in a particular situation and should not be taken as such, nor is it intended to substitute for the advice of legal counsel to the parties, or to restate the law. Guidance regarding a specific proposed transaction may be requested from the Merger Notification UnitFootnote 1.
Generally, in providing information, including in the context of a hostile transaction, the Bureau is guided by section 29 of the Competition Act (the "Act") and the enforcement policy and practice articulated in the Bureau's Information Bulletin on the Communication of Confidential Information Under the Competition Act (the "Bulletin"). Section 29 protects information provided to or obtained by the Bureau, including the identity of any persons who have provided it, subject to certain exceptions. In particular, this section provides for the communication of information in four circumstances: to a Canadian law enforcement agency; for the purposes of the administration or enforcement of the Act; where information has been made public; or when authorized by the person who provided the information. Please consult the Bulletin for further details on the scope and application of section 29 of the Act.
The Act places limited obligations on the Bureau to disclose information to the parties to a hostile transaction. Subsection 114(3) of the Act requires the Bureau to immediately advise a target of the date upon which the Bureau receives a filing from a bidder.
With respect to a non-hostile transaction, the Bureau is generally willing to provide updates, where appropriate, on the progress of its review, speaking with counsel for both parties, separately or together (as requested by the purchasing party). Typically, in such situations, the Bureau provides its complexity designation, the anticipated timing of its review, the date upon which the other party has certified completeness of any SIR response, the Bureau's preliminary and final views on market definitions and relevant section 93 factors, as developed, and its preliminary and final conclusions regarding a potential prevention or lessening of competition (collectively, "Pertinent Information"). Having considered the sensitivities involved in sharing information with both parties in a hostile transaction, the Bureau has determined that, where it shares Pertinent Information with one party, it will strive to disclose such Pertinent Information equitably to the other party, subject, in all cases, to restrictions on the disclosure of confidential information defined by section 29 of the Act.
The Bureau acknowledges that hostile transactions can give rise to particularly complex considerations that may impact the straightforward application of the foregoing policy on disclosure of Pertinent Information, including, for example, in circumstances involving multiple competing bids. Accordingly, the Bureau will be mindful of such considerations in determining, on a case-by-case basis, how the policy is applied.
For further information, please contact:Merger Notification Unit
Mergers Branch, Competition Bureau
50 Victoria Street
Gatineau, Quebec K1A 0C9
How to Contact the Competition Bureau
Anyone wishing to obtain additional information about the Competition Act, the Consumer Packaging and Labelling Act (except as it relates to food), the Textile Labelling Act, the Precious Metals Marking Act or the program of written opinions, or to file a complaint under any of these acts should contact the Competition Bureau's Information Centre:
50 Victoria Street
National Capital Region: 819-997-4282
TTY (for hearing impaired) 1-800-642-3844
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