Fee and Service Standards Handbook For Merger-Related Matters

Bulletin

Draft for Public Consultation – May 31, 2010

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This publication is not a legal document. It contains general information and is provided for convenience and guidance related to the Competition Bureau's Fee and Service Standards Policy.

For information on the Competition Bureau's activities, please contact:

Information Centre
Competition Bureau
50 Victoria Street
Gatineau QC  K1A 0C9

Tel.: 819–997–4282
Toll free: 1–800–348–5358
TTY (for hearing impaired): 1–800–642–3844
Fax: 819–997–0324
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 e–mail droitdauteur.copyright@tpsgc-pwgsc.gc.ca.

Aussi offert en français sous le titre Guide sur la tarification et les normes de service mai 2010.

Preface

The Competition Bureau ("Bureau") is an independent law enforcement agency responsible for, among other things, the administration and enforcement of the Competition Act ("Act"). The Bureau contributes to the prosperity of Canadians by protecting and promoting competitive markets and enabling informed consumer choice.

Since November 1997, the Bureau has required the payment of fees for the following merger-related matters

• pre-merger notification filings submitted pursuant to subsection 114(1) of the Act ("notifications");
• requests for Advance Ruling Certificates under section 102 of the Act ("ARC requests"); and
• applications for written opinions under subsection 124.1(1) of the Act regarding the applicability of Part IX (Notifiable Transactions) of the Act ("written opinions").

With the establishment of fees came challenging but attainable service standards. These service standards, which are based on the complexity of the competition issues raised by a transaction, have been established to provide timely and predictable merger review periods for stakeholders and to comply with Treasury Board requirements with respect to the imposition of fees.

The purpose of this Fee and Service Standards Handbook for Merger-Related Matters ("Handbook") is to provide guidance as to how the Bureau determines the complexity of a proposed transaction that is the subject of a notification or ARC request and the complexity of a matter that forms the basis of a request for a written opinion. This Handbook also sets out the information required by the Bureau to commence the applicable service standard, and explains when the service standard may be paused and when it is terminated. Finally, this Handbook provides information with respect to the payment of fees.

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Part I - Introduction

With amendments to the merger provisions of the Act coming into force in March 2009, and the Notifiable Transaction Regulations ("Regulations") in February 2010, updates to the existing service standards and complexity designations for merger-related matters are necessary. In particular, at the request of stakeholders, a service standard has been created for proposed transactions where a Supplementary Information Request ("SIR") pursuant to section 114(2) of the Act, is issued by the Commissioner of Competition ("Commissioner") to ensure that the applicable service standard is aligned with the statutory waiting period. Also, the information required to commence the various service standards has been revised to accord with changes to the Regulations.

The Fee and Service Standards Policy ("Policy") is consistent with the Government's overall objective of fairness, which seeks to ensure that those who benefit most from a service should pay for it, rather than forcing all Canadians to pay through general taxation. The Policy also recognizes the "public good" component that is related to the activities of merger review. The fees set out herein, which have remained the same since 2003, were developed within this framework.

The introduction of fees and related service standards has promoted a more disciplined approach for identifying and measuring the Bureau's performance. The Bureau is committed to ensuring that those who seek services, or are bound by regulatory requirements, have timely and predictable opportunities to provide input regarding fees and service standards. To ensure that stakeholders have an opportunity to voice comments about the Policy and the Handbook, the Bureau holds public consultations every two to three years. These consultations also provide the Bureau with an opportunity to report publicly on its performance.

To request clarification with respect to the services and regulatory processes outlined in this Handbook or to ask a question regarding a particular merger issue, please contact the Merger Notification Unit ("MNU") for further information. This Handbook and other merger-related publications that parties may consult for additional guidance are available on the Bureau's website,¹ including the Notifiable Transactions and Advance Ruling Certificates Under the Competition Act: Procedures Guide ("Procedures Guide")² and the Merger Review Process Guidelines³.

The MNU can be contacted at:

Merger Notification Unit
Mergers Branch, Competition Bureau
50 Victoria Street
Gatineau, Québec K1A 0C9

Telephone: 819-953-4297 or 819-953-7092
Toll-free: 1-800-348-5358
Fax: 819-953-6169
E-mail: mergernotification@cb-bc.gc.ca

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Part II - Early Consultation

2.1 Overview

The Bureau's approach to service standards is premised on cooperation with parties and early, ongoing dialogue. The Bureau strongly encourages parties to a proposed transaction to consult with the Bureau prior to, or as soon as possible after, submitting a notification or an ARC request. Early consultation ensures that sufficient information is submitted to facilitate complexity designation, to trigger the commencement of the service standard period, and to better identify any potential competition concerns at an early stage. This approach also enables the Bureau to more readily focus its investigation, minimize any requests for additional information, and complete its review in a timely manner.

For transnational mergers involving a multi-jurisdictional competition review, where there are competition concerns in Canada, it is the Bureau's experience that early discussion on inter-agency cooperation is very useful. To facilitate this discussion, parties are strongly encouraged to provide foreign agencies with waivers permitting them to share information with the Bureau as early in the review process as possible.

2.2 Merger Notification Unit

The MNU is responsible for receiving and initially processing notifications and ARC requests, as well as requests for written opinions under section 124.1 of the Act relating to Notifiable Transactions.⁴ The MNU also handles other issues regarding the application and interpretation of Part IX of the Act and will provide non-binding verbal assistance in this regard. Where parties are uncertain about the type of information that must be provided to the Bureau to commence the service standard, parties are encouraged to contact the MNU for guidance to ensure that the applicable service standard is commenced. Parties involved in matters that raise complicated fact scenarios or legal issues are encouraged to seek private legal counsel. The MNU can be contacted at the coordinates provided above.

Part III - Notifications and ARC Requests

3.1 Overview

Service standards represent the maximum time within which the Bureau will endeavour to provide a response in respect of a proposed transaction that is the subject of a notification and/or an ARC request. As required by the Policy, these proposed transactions will be designated as "non-complex", "complex", or "very complex", and assigned a corresponding service standard. Where a SIR is issued, the assigned complexity designation remains the same; however, the SIR service standard applies. The Bureau strives to ensure that its approach to merger review is as transparent as possible and will inform parties of the complexity designation promptly. The complexity designation process and the information required to commence the applicable service standard are described in more detail below.

3.2 Complexity Designation

3.2.1 The Classification Process

Based on a review of the notification and/or the ARC request, as well as the information set out in sections 3.3.2, 3.3.3 or 3.3.4 of this Handbook, as applicable, the senior Bureau officer assigned to review the proposed transaction, in consultation with an Assistant Deputy Commissioner in the Mergers Branch, as appropriate, will determine complexity. Where a proposed transaction appears to be complex or very complex, the Bureau may consult with market participants, economists from the Economic Policy and Enforcement Branch of the Bureau, and outside experts before assigning a complexity level to the matter. As described in detail below, numerous factors, including product market, geographic market, market shares and barriers to entry, are taken into consideration in determining whether a proposed transaction is non-complex, complex, or very complex.

When providing information regarding relevant markets and market shares, the relevant markets being analysed for competitive effects may not necessarily correspond to the product categories or service areas established by parties in the conduct of their business activities.⁵ Parties may consult the Merger Enforcement Guidelines for guidance with respect to the approach utilized by the Bureau to determine relevant product and geographic markets. Where the relevant markets for competition analysis are not clear, parties are encouraged to consider alternative definitions and, to the extent possible, provide market share data (independent third party data is preferable) and other relevant information for each of these alternatives.

Where a proposed transaction has been designated as non-complex, upon receipt of sufficient information, parties will be informed promptly of the complexity level and applicable service standard. Where a proposed transaction is designated as complex or very complex, it often takes the Bureau more time to classify the transaction. For these transactions, the Bureau will inform parties promptly of the complexity level and the applicable service standard.

Where a SIR is issued, the corresponding service standard (described below) will apply in order to align the statutory waiting period and the service standard. As discussed in greater detail in the Merger Review Process Guidelines⁶, receiving parties will be notified as soon as reasonably possible within the initial 30-day waiting period that a SIR is forthcoming, and will generally be provided with a draft SIR and given an opportunity to engage in pre-issuance dialogue. For further information regarding this process, please refer to the Merger Review Process Guidelines.

3.2.2 Non-Complex Mergers

Non-complex transactions are readily identifiable by the clear absence of competition issues and include transactions where there is no or minimal overlap between parties, assuming properly defined product and geographic markets. Minimal overlap includes a combined post-merger market share of less than 10% in any relevant market, and market shares of less than 10% for either party in any relevant upstream or downstream market.

This category also includes certain transactions with moderate overlap where there are significant mitigating factors. Moderate overlap includes a combined post-merger market share between 10% and 35% in any relevant market, and market shares between 10% and 35% for either party in any relevant upstream or downstream market. Examples of mitigating factors include the following:

• (a) the relevant product and/or geographic markets are well known to the Bureau;
• (b) barriers to entry are low;
• (c) the number of effective remaining competitors post-merger is large; and,
• (d) market participants have expressed no competition concerns.

Most non-complex transactions are brought to the Bureau's attention by way of an ARC request. Between 2002 and 2010, approximately 88% of proposed transactions subject to service standards were classified as non-complex.

3.2.3 Complex Mergers

Complex mergers involve proposed transactions between competitors, or between customers and suppliers, where there are indications that the transaction may create, maintain, or enhance market power, as described in the Merger Enforcement Guidelines. Proposed transactions where the combined post-merger market share of the parties is potentially 35% or more are generally classified as complex or very complex.

This category also includes certain proposed transactions where the combined post-merger market share is less than 35% and the market shares of either party in any upstream or downstream market are below 35% and there are one or more complicating factors. Examples of such factors include the following:

• (a) defining the relevant markets is challenging⁷;
• (b) the existence of barriers to entry;
• (c) there are few effective remaining competitors;
• (d) difficulty in evaluating the effectiveness of remaining competition or assessing potential sources of new competition;
• (e) credible complaints or competitive concerns warranting a more in-depth review; and
• (f) cooperation and coordination with one or more foreign competition authorities is required to access relevant information.

From 2002 to 2010, approximately 10% of transactions subject to service standards were classified as complex.

3.2.4 Very Complex Mergers

Very complex mergers are typically characterized by indications early in the examination that there are grounds to believe that the proposed transaction is likely to create, maintain, or enhance market power according to the enforcement policies set out in the Merger Enforcement Guidelines.

This category of mergers includes proposed transactions where post-merger market shares will likely exceed 35% and/or the market shares of either party in any upstream or downstream market will likely exceed 35% and there are other complicating factors, such as the following:

• (a) a merger between participants in a concentrated industry;
• (b) defining the relevant markets is challenging;
• (c) high barriers to entry are evident;
• (d) the investigation involves complex theories of anti-competitive harm;
• (e) a failing firm or efficiencies analysis is required;
• (f) well-substantiated complaints or competitive concerns; and
• (g) cooperation and coordination with one or more foreign competition authorities is required to access relevant information.

A very complex merger typically requires significant analysis and a greater volume of work than that required for complex mergers. Very complex cases often progress to the formal inquiry stage, usually require the issuance of a SIR, and may require the use of formal powers under section 11 of the Act to collect information from third parties. The assessment of a very complex merger generally requires a case team comprised of Bureau officers, economists from the Economic Policy and Enforcement Branch of the Bureau, legal counsel and outside experts.

Very complex transactions are typically brought to the Bureau's attention by way of a notification. From 2002 to 2010, approximately 2% of transactions subject to service standards were classified as very complex.

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3.3 Complexity Designation

3.3.1 Overview

The experience of the Mergers Branch has been that the more comprehensive the information provided by the parties at the initial stages of a matter, the more focused and expeditious the review process becomes. This generally translates into specific and shorter subsequent requests for information, and fewer, more focused third party contacts. As a result, stakeholders benefit from a more timely resolution and the Bureau has the opportunity to conduct an efficient and sufficiently thorough examination of all relevant issues.

Parties to a proposed transaction may elect to supply the information required to commence the service standard as part of an ARC request or together with a notification in the form of a competition brief.⁸

Generally, the Bureau is of the view that the information set out below is sufficient to commence the applicable service standard; however, the Bureau recognizes that the specific information requirements may vary on a case-by-case basis. If parties are uncertain about the information that should be provided to the Bureau, they are encouraged to consult with the MNU or, where a notification or ARC request has already been submitted, with the officers assigned to review the matter.

3.3.2 Non-Complex Mergers with No or Minimal Overlap

For non-complex transactions where there is no or minimal overlap, the Bureau considers the submission by parties of the following information to be sufficient for it to commence its review:

• (a) a description of the proposed transaction including the proposed consideration to be paid and received by each party (e.g. cash, assets, shares, interests);
• (b) the full name of each party to the proposed transaction;
• (c) a list of all affiliates, relevant for a competition analysis, of each party that has significant assets in Canada or significant gross revenues from sales in, from, or into Canada;
• (d) a copy of each legal document, or the most recent draft of that document if it has not yet been executed, that will be used to implement the proposed transaction; and
• (e) the relevant product and geographic market definitions and a detailed explanation as to why the parties believe that there are no or minimal competitive overlaps (horizontal or vertical) between the businesses of the parties, including any significant affiliates and businesses in which the party owns any interest, and whether any relevant interlocking directorships exist.

Where post-merger market shares in a relevant market are greater than 5% and/or the proposed transaction involves an industry that is not familiar to the Bureau, it will often be necessary for the reviewing officer to conduct market contacts. In such instances, it assists the Bureau if each party provides, at the commencement of the review, a list of the ten largest current customers for each of the overlapping product and geographic markets, including contact names, telephone numbers, and e-mail and physical addresses.

3.3.3 Non-Complex Mergers with Moderate Overlap

For non-complex transactions where there is moderate overlap, the Bureau considers the submission by parties of the following information to be sufficient for it to commence its review:

• (a) the information required by section 16 of the Regulations;
• (b) identification of all competitive overlaps (horizontal and vertical) among the parties to the proposed transaction, including those of any significant affiliates⁹ and businesses, relevant for a competition analysis, as well as any instances in which the party owns any interest, and whether interlocking directorships exist;
• (c) a list of the party's ten largest current customers, including contact names, telephone numbers, and e-mail and physical addresses of those customers, for each of the overlapping product and geographic markets;¹⁰
• (d) existing co-production, joint venture or strategic alliance agreements with any competitor in relation to the relevant products;
• (e) a detailed explanation as to why the parties believe that there are no competition issues arising as a result of the proposed transaction, including submissions regarding:
  • (i) the industry;
  • (ii) the relevant product and geographic market definitions; and
  • (iii) any relevant factors listed in section 93 of the Act;
• (f) for each relevant product, in each relevant geographic market:
  • (i) independent third party data for the most recently completed year with respect to the total annual volume and dollar value of sales. If independent third party data is not available, estimated market shares for the parties, with an explanation of the basis for the estimate;
  • (ii) a list of the parties' respective competitors;
  • (iii) independent third party market share data for the most recently completed year for each competitor. If independent third party data is not available, estimated market shares, with an explanation of the basis for the estimate; and
  • (iv) for the most recently completed year, volume and dollar value of the sales for each party.

As this category includes a wide range of post-merger market shares, the mitigating factors set out in section 3.2.2 or, where the proposed merger is close to the 10% threshold, some of the information listed above may not be required. Again, if parties are uncertain about the information that should be provided to the Bureau, they are encouraged to consult with the MNU, or where a notification or ARC request has already been submitted, with the officers assigned to review the matter.

3.3.4 Complex and Very Complex Mergers

For complex and very complex transactions, the Bureau considers the submission by parties of the following information to be sufficient for it to commence its review:

• (a) the information listed in section 3.3.3 for non-complex mergers with moderate overlap;
• (b) all marketing, business and strategic plans, and similar documents that were prepared or received by officers or directors of the corporation; or, in the case of an unincorporated entity, individuals who serve in a similar capacity, and that have been implemented in Canada over the last two years or are to be implemented in Canada, for each of the relevant products in each of the relevant geographic markets;
• (c) any non-compete agreements or other types of agreements, arrangements or licences the parties may have with third parties that would have an impact on the ability of actual or potential competitors to compete with the parties now or in the future;
• (d) existing co-production, joint venture or strategic alliance agreements with any competitor in relation to the relevant products; and
• (e) records showing how prices are determined for each relevant product in each relevant geographic market.

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Part IV - Written Opinions Relating to Part IX of the Act

4.1 Overview

Guidance regarding the applicability or interpretation of Part IX of the Act can be obtained by requesting a binding written opinion from the Bureau under section 124.1 of the Act. Such requests are to be directed to the MNU, and it is suggested that parties contact the MNU prior to submitting a request. Written opinions, which will take into account relevant jurisprudence, previous written opinions, and current policies, are binding on the Bureau as long as the facts of the matter remain substantially unchanged and the transaction is carried out substantially as proposed.

The Bureau will not provide a written opinion under section 124.1 that requests an assessment of the competitive effects of a proposed transaction under the merger provisions of the Act. Parties to a proposed transaction seeking this kind of assessment, regardless of whether the transaction is notifiable, must submit a notification or an ARC request.

A request for a written opinion regarding the applicability or interpretation of Part IX of the Act should clearly state the question and provide, among other things:

• (a) a description of the parties;
• (b) a description of the proposed transaction broken down by its component steps; and
• (c) all material facts relevant to the request.

4.2 Complexity Definitions

4.2.1 Non-Complex Written Opinions

Non-complex written opinions regarding the applicability or interpretation of Part IX of the Act, or the Regulations, typically involve matters where there is sufficient jurisprudence and established Bureau policy for the Bureau to readily formulate an opinion.

4.2.2 Complex Written Opinions

Complex written opinions regarding the applicability or interpretation of Part IX of the Act, or the Regulations, typically involve matters that raise a novel issue and where there is little or no jurisprudence and a lack of established Bureau policy and/or procedures on the subject.

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Part V - Service Standards

5.1 Overview

The Bureau aims to provide a response to notifications, ARC requests, and requests for written opinions within the service standard periods set out in Table 1.

For non-complex mergers, the service standard remains at 14 calendar days. For complex mergers, the service standard has been reduced to 60 calendar days from ten weeks. For very complex mergers, the service standard has been reduced to 120 calendar days from five months.

Where a SIR is issued, the service standard is 30 calendar days from the date on which the Bureau has received a complete response to all information requests set out in the SIR from all SIR recipients. The service standard for a proposed transaction where a SIR has been issued is linked to the date of the parties' compliance with the SIR, and aligns the end of the service standard with the statutory waiting period. As more fully described in the Merger Review Process Guidelines¹¹, parties are encouraged to enter into discussions with the Bureau early in the SIR process in order to discuss the anticipated timing of certain steps of the Bureau's review. The Bureau strongly prefers to have "rolling production" of information in order to provide a timely review and to meet the relevant service standard.

For written opinions, the service standard remains at 14 calendar days for non-complex matters and 28 calendar days for complex matters.

The Bureau's obligation to comply with Service Standards is contingent upon cooperation from the parties during the course of an examination.

Table 1: Service Standards for Notifications, ARC Requests and Written Opinions

Service or Regulatory Process	Service Standard*	Commencement of Service Standard
* Service standards, which are based on calendar days, represent the maximum time within which the Bureau will endeavour to provide a response, assuming cooperation from the parties. (Return to Text)
Merger Notification Filings and ARC Requests
Non-complex	14 days	The next business day after sufficient information has been received to commence the Bureau's review. See the information set out in sections 3.3.2 or 3.3.3, as applicable, of this Handbook.
Complex	60 days	The next business day after sufficient information has been received to commence the Bureau's review. See the information set out in section 3.3.4 of this Handbook.
Very complex	120 days
SIR	30 days	The day on which the Bureau has received a complete response to all information requests set out in the SIR from all SIR recipients.
Part IX Written Opinions
Non-complex	14 days	The next business day after sufficient information has been received by the Bureau to commence its analysis. See the information set out in section 4.1 of this Handbook.
Complex	28 days

5.2 Commencement of the Service Standard

5.2.1 General

For transactions where a complexity level has been assigned, the service standard commences the next business day after sufficient information has been received from the parties for the Bureau to commence its review. The necessary information is set out in Part III of this Handbook. For proposed transactions where one or more parties have received a SIR, the service standard will commence on the day on which the Bureau has received a complete response to all information requests set out in the SIR from all SIR recipients. In the case of a proposed transaction that falls within the ambit of subsection 114(3) of the Act, the service standard will commence when all parties other than the target corporation have complied with the applicable requirements above.

For written opinions, the service standard commences the next business day after receipt of sufficient information from the parties for the Bureau to commence its analysis. The necessary information is set out in section 4.1 of this Handbook. With receipt of sufficient information, parties will be informed promptly of the complexity level and applicable service standard.

5.2.2 Market Contacts

It is standard practice in merger reviews for the Bureau to communicate with market participants, including customers, suppliers, and competitors of the merging parties, except in non-complex mergers with no or minimal overlap. The Bureau must be in a position to obtain information from market participants to properly assess a proposed transaction, including verification of the information and statements of the parties. The Bureau will not commence the applicable service standard until such time as the Bureau is able to conduct market contacts.

The Bureau will consider exercising its discretion to agree to a request to defer making market contacts in respect of a proposed transaction that is the subject of an ARC request only. In this situation, subject to the Commissioner's obligations under the Act, the Bureau will normally agree to defer making market contacts as long as there would be sufficient time before closing to make the necessary contacts. Where the Bureau decides not to defer making market contacts in respect of an ARC-only application, it will first notify the parties. The service standard will not commence until such time as the Bureau is in a position to begin making market contacts.

On receipt of a notification that complies with statutory requirements¹² and thereby triggers the statutory waiting period, the Bureau will continue its practice of making market contacts if and when the Bureau considers it necessary. Notice will not be given to parties that the Bureau intends to commence market contacts, as confirmation from the Bureau that a notification complies with statutory requirements, and that the statutory waiting period has commenced, constitutes notice to the merging parties that market contacts will be made, if and when necessary. Parties who intend to submit a notification, but would like to have market contacts deferred, may consider submitting a draft notification that does not meet the statutory requirements. In this situation, the Bureau may exercise its discretion to agree to defer market contacts, but parties must appreciate that the statutory waiting period and the applicable service standard will not commence until the statutory requirements and the requirements in this Handbook, respectively, are satisfied.

5.3 Termination of the Service Standard

The service standard ends when the parties are either: (i) issued an ARC or a No Action Letter; or (ii) advised that, without a remedy, the proposed transaction is likely to prevent or lessen competition substantially. The time devoted to discussions or negotiations aimed at resolving issues, the preparations required for proceedings before the Competition Tribunal ("Tribunal"), and the time required to conduct proceedings before the Tribunal are not included within service standards.

For written opinions, the service standard ends when the opinion has been mailed to the applicant and/or the party receives verbal confirmation from the MNU followed by the written response.

5.4 Pausing the Service Standard – Requests for Additional Information

In the vast majority of non-complex mergers, the information requirements set out in this Handbook will be sufficient for the Bureau to complete its assessment of a proposed transaction; however, depending on the specific circumstances of the case, and for more complex transactions, the Bureau may require additional information from the parties to complete its review. For less complex transactions or complex transactions where the parties and the Bureau have an understanding (as may be embodied in a timing agreement)¹³ that: (1) the Bureau is continuing its review beyond the expiry of any applicable statutory waiting period; (2) the parties will work cooperatively with the Bureau to address additional information requests from the Bureau through a voluntary process; and (3) the parties will not close the transaction for an agreed-upon period of time to allow the Bureau to complete its review, such additional information will be sought on a voluntary basis.

Where the Bureau has requested, in writing, additional voluntary information from one or more of the parties to a proposed transaction or from a party requesting a written opinion after the commencement of the service standard period, and such additional information is not received within the response time set out in Table 2 below, the Bureau may, on the following day, suspend the service standard period. Once the information is received, the service standard period will resume. Parties will be notified in writing when the service standard period has been paused and when the service standard period has resumed, together with the new service standard end date. Table 2 sets out the maximum number of days within which a response to a voluntary information request must be received in order for the Bureau to pause the applicable service standard.

Table 2: Period within which parties are to respond to voluntary information requests

Service or Regulatory Process	Response Time
Merger Notification Filings and ARC Requests
Non-complex	3 days
Complex	10 days
Very Complex	14 days
Part IX Written Opinions
Non-complex	3 days
Complex	5 days

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Part VI – Fees

6.1 Fees

Fees for notifications and ARC requests should be submitted at the same time the request or filing is made. In the case of an ARC request, the person making the request is responsible for payment. In the case of a notification, the notifying parties should pay the fee. However, while the parties are free to make their own arrangements as to payment, the Bureau considers all notifying parties to be jointly and severally liable.

Fees for written opinions should be submitted at the same time the application is made. The person making the request is responsible for payment. Only one fee applies to a written opinion that might involve the review of multiple sections of the Act. The Bureau will continue to charge $50 to charitable organizations.¹⁴

Payments may be made by wire transfer¹⁵ or by cheque payable to the Receiver General for Canada. Written opinions are subject to the federal and provincial taxes indicated in Table 3 below.

Table 3: Fees and Applicable Taxes¹⁶ for Merger Notification Filings, ARC Requests and Written Opinions

Service or Regulatory Process	Fees for Québec Residents	Fees for Residents of Newfoundland, Nova Scotia, New Brunswick, Ontario	Fees for Residents of British Columbia	Fees for residents of all other provinces and territories
16 Only Canadian residents pay Canadian taxes, which are current to the date of publication to this Handbook. (Return to Text) 17 Where both a notification and an ARC request are submitted with respect to the same proposed transaction, only the fee applicable to the ARC request applies. (Return to Text)
Notification17	$50,000	$50,000	$50,000	$50,000
ARC Request	$50,000	$50,000	$50,000	$50,000
Written Opinion	$5,000 + GST ($250.00) + QST ($393.75) Total = $5,643.75	$5,000 + HST ($650.00) Total = $5,650.00	$5,000 + HST ($600.00) Total = $5,600.00	$5,000 + GST ($250.00) Total = $5,250.00

6.2 Refund Policy

Upon written request by the party who submitted the fee, refunds will be provided where:

• (a) a notification is withdrawn within two business days of receipt by the Bureau;
• (b) an ARC request is withdrawn within two business days of its receipt by the Bureau, if the Bureau has not issued an ARC or a No Action Letter;
• (c) both a notification and an ARC request are submitted in respect of the same transaction, and both the notification and the ARC request are withdrawn within two business days of receipt by the Bureau of the earlier of the notification or ARC request;
• (d) the Bureau exercises its discretion to not provide a written opinion under 124.1(1) of the Act within fourteen days of receipt of the request;
• (e) the request for a written opinion under 124.1(1) of the Act is withdrawn within two business days of receipt of the request by the Bureau; or
• (f) where there has been an over-payment.

6.3 Withdrawing and Re-Submitting a Notification

If, during the initial waiting period under subsection 114(1) of the Act, a notification is withdrawn more than two business days after it was initially received and the parties subsequently submit a notification in respect of the same proposed transaction ("Subsequent Notification"), no fee will be required for the Subsequent Notification if the following conditions are met:

• (a) the Subsequent Notification, specifically as it relates to the prescribed information pursuant to clause 16(1)(c)(iv)(A) and paragraph 16(1)(d) of the Regulations, is current as of the date it is received by the Bureau;
• (b) the Subsequent Notification is certified pursuant to section 118 of the Act;
• (c) the Subsequent Notification is received by the Bureau within five business days of the initial notification having been withdrawn;
• (d) there has been no material change in respect of the proposed transaction; and
• (e) it is the first Subsequent Notification.

If these conditions are not met, the Subsequent Notification will be considered a fresh notification and will be subject to the applicable fee and service standards.

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Part VII - Review / Feedback Mechanisms

Parties submitting a notification, ARC request, or written opinion request are invited to provide feedback to the Bureau by completing the brief evaluation leaflet enclosed with each response to a request for service. Completed leaflets should be mailed to the Bureau's Compliance and Operations Branch, which prepares reports for the Mergers Branch to ensure the anonymity of the respondents' feedback to the Bureau.

Complaints regarding services and regulatory processes for which fees and service standards apply can be directed to the Deputy Commissioner of Competition, Compliance and Operations Branch. The Deputy Commissioner will examine the matter and will provide feedback to the complainant.

The contact information for the Deputy Commissioner of Competition, Compliance and Operations Branch, is:

Deputy Commissioner of Competition, Compliance and Operations Branch
Competition Bureau
50 Victoria Street
Gatineau, Québec K1A 0C9
Telephone: 819-953-7942
Facsimile: 819-953-3464

On application, any resolution deemed by the complainant to be unsatisfactory will be further investigated by the Commissioner. Complainants will receive feedback as well as information regarding any subsequent resolutions or decisions relating to the original complaint.

The contact information for the Commissioner is:

Commissioner of Competition
Competition Bureau
50 Victoria Street
Gatineau, Québec K1A 0C9
Telephone: 819-997-3304
Facsimile: 819-953-5013

All complaints will be handled in the strictest confidence.

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Footnotes

¹ http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/home. (Return to Text)

² http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02935.html. (Return to Text)

³ http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03128.html. (Return to Text)

⁴ For further information regarding the MNU, please consult the Procedures Guide. (Return to Text)

⁵ See the Merger Enforcement Guidelines at paragraph 3.2. The Merger Enforcement Guidelines can be found at:
http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/01245.html. (Return to Text)

⁶ http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03128.html. (Return to Text)

⁷ Market definition can be challenging for many reasons, including determining the degree of substitutability among differentiated products, assessing the boundaries of geographic markets where there are a number of plants or sales locations, the lack of independent sales data, etc. (Return to Text)

⁸ The prescribed information that must be submitted with a notification is set out in section 16 of the Regulations. For further details regarding the submission of a notification or ARC request, please refer to the Procedures Guide. (Return to Text)

⁹ A significant affiliate is an affiliate of the party, who has significant assets in Canada or significant gross revenues from sales in, from or into Canada as referred to in section 16 of the Notifiable Transaction Regulations. (Return to Text)

¹⁰ Unless already contained in the information provided in section 3.3.3 (a). (Return to Text)

¹¹ http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03128.html. (Return to Text)

¹² Please refer to the Procedures Guide. (Return to Text)

¹³ Pursuant to section 5 of the Treasury Board Policy on Service Standards for External Fees, where parties enter into a formal timing agreement with the Bureau that stipulates a service standard (or some equivalent provision), the service standards set out in the Handbook are not applicable. For more information regarding timing agreements, please refer to the Merger Review Process Guidelines. (Return to Text)

¹⁴ The Income Tax Act's definition of a charitable organization will be used to determine the applicability of this exception. (Return to Text)

¹⁵ For further information regarding wire transfers, parties should contact the MNU. (Return to Text)