Information Bulletin on Merger Remedies in Canada: VI. Compliance and Enforcement of Merger Remedies

71. The Bureau will commit the necessary time and resources to ensuring the merged entity complies with the required remedies. During the implementation phase of the remedy, the Bureau will have the ability to interview officers, directors, employees, and agents of the merging parties, as necessary, to ensure compliance with the divestiture order.

72. Crafting clear terms that are readily enforceable and require little or no oversight is a key objective when designing remedies, and can effectively serve as a deterrent for non-compliance. In the Bureau’s experience, merged entities generally comply with the terms of negotiated settlements (or divestiture orders in contested cases). However, when non-compliance requires further enforcement action, the Bureau will take the necessary steps to ensure that the terms of the remedy are fully implemented.

73. The nature of the non-compliance will determine the type of action that will likely be taken by the Bureau. When substantive issues relating to competition arise, it may be sufficient, in some cases, to discuss such issues with the merged entity to determine whether non-compliance has been inadvertent. Where there is a disagreement on the interpretation of the terms of the remedy, it may be necessary to apply to the Tribunal for an order that interprets or clarifies the agreement. Where a merged entity clearly and/or wilfully acts in contempt of a Tribunal order or a registered consent agreement, the Bureau will take appropriate action to enforce the terms of the settlement, as well as any other action that may be necessary.⁴¹

74. Moreover, in the event that a remedy package is not divested in the agreed-upon time periods, the Bureau retains the right to challenge the merger before the Tribunal to address the substantial lessening or prevention of competition under section 92 of the Act.

⁴¹ For example, the Bureau may seek the imposition of civil and/or criminal penalties.