Competition Bureau Fees and Service Standards Policy for Mergers and Merger‑Related Matters

Bulletin

May 2018

1. Introduction

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.

This Competition Bureau Fees and Service Standards Policy for Mergers and Merger‑Related Matters ("Policy") contains fees and service standards that are consistent with the government's overall objective of fairness, with fees that ensure that those who benefit most from a service should pay for it, rather than have all Canadians pay through general taxation, and service standards that are relevant to stakeholders.

This Policy supersedes the October 2010 Policy.

In 2018, the fee for merger notifications and requests for ARCs was revised, and the revised fee comes into effect May 1, 2018. In revising the fee, a thorough costing analysis was undertaken in accordance with the Treasury Board of Canada Secretariat's Guidelines on Costing. Additionally, a pricing analysis in accordance with the Treasury Board of Canada Secretariat's Guide to Establishing the Level of a Cost-Based User Fee or Regulatory Charge was used in setting the fee. The factors considered include the private and public benefit of the service, the impact of the fee on stakeholders, the public policy objectives associated with the fee, stakeholder consultations, and international comparisons. The Service Fee Act requires that departments and agencies establish a mechanism for remitting fees when service standards are not met. Guidelines on remissions are being developed by Innovation, Science and Economic Development Canada and the Treasury Board of Canada Secretariat.

In 2009, amendments to the merger provisions of the Act created a two‑stage process for reviewing mergers in Canada, which resulted in changes to the statutory waiting periods for parties required to notify the Commissioner of Competition ("Commissioner") of a proposed transaction. Following public consultations in 2010, the service standards set out herein were introduced in the October 2010 version of this Policy.

The use of fees and related service standards has promoted a disciplined approach to 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 provide feedback on the Policy and the Competition Bureau Fees and Service Standards Handbook for Mergers and Merger‑Related Matters ("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.

For further information related to implementation of this Policy, please consult the Handbook.

2. Mergers branch services and regulatory processes for which fees apply

2.1 Pre‑merger notification

Part IX of the Act sets out the statutory framework for pre‑merger notification ("notification"), which requires parties to proposed transactions that exceed certain monetary thresholds (and, where applicable, shareholding or interest‑holding thresholds), unless an exemption is available, to:

  1. notify the Commissioner prior to completing the proposed transaction;
  2. provide specified information; and
  3. wait a specified period of time before completing the transaction.

Pursuant to paragraph 123(1)(a) of the Act, parties are legally prohibited from closing the transaction for an initial 30‑day waiting period, unless the Commissioner notifies the parties that the he does not intend, at that time, to make an application under section 92 of the Act in respect of the proposed transaction (such notice is commonly referred to as a "No‑Action Letter").

During the initial 30‑day waiting period, the Commissioner may, pursuant to subsection 114(2), require a notifying party to supply additional information that is relevant to the assessment of the proposed transaction. The issuance of a supplementary information request ("SIR") triggers a second 30‑day waiting period that commences only once the Commissioner has received from each SIR recipient a complete response to all information requests set out in the SIR.Footnote 1 A proposed transaction may not close until the expiry of this second waiting period, subject to the receipt of a No‑Action Letter.

Also, pursuant to section 100 of the Act, upon application by the Commissioner, the Competition Tribunal ("Tribunal") may issue an interim order prohibiting the completion of the transaction.

2.2 Advance Ruling Certificates ("ARCs")

Parties to a proposed transaction may apply for an ARC in lieu of, or in addition to, submitting a notification. Pursuant to section 102 of the Act, where the Commissioner is satisfied by a party or parties to a proposed transaction that there are insufficient grounds to apply to the Tribunal for a remedial order under section 92, the Commissioner may issue an ARC.Footnote 2 The issuance of an ARC is discretionary; however, an ARC cannot be issued for a transaction that has been completed. Where an ARC is issued, paragraph 113(b) of the Act exempts the named transaction from the notification provisions of Part IX of the Act.

Under section 103 of the Act, where the Commissioner issues an ARC and where the proposed transaction to which the ARC relates is substantially completed within one year after the ARC is issued, the Commissioner cannot apply to the Tribunal solely on the basis of information that is the same or substantially the same as the information upon which issuance of the ARC was based; however, where the Commissioner receives additional information that differs from the basis upon which the ARC was issued, the Commissioner may apply to the Tribunal for an order under section 92 of the Act. Thus, it is critical that parties provide full disclosure of all information relevant to the proposed transaction and its effect on competition at the time an ARC is requested.

2.3 Written opinions

Guidance regarding the applicability or interpretation of Part IX of the Act can be obtained by requesting a binding written opinion from the Commissioner under section 124.1 of the Act. Written opinions, which take into account relevant jurisprudence, previous written opinions, current policies and enforcement guidance, are binding on the Commissioner 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 and/or an ARC request.

2.4 Photocopies

Fees for photocopies apply to requests for copying services made to the Bureau.

3. Consultations

Most recently in 2017, the Bureau sought the input of interested parties on its proposed increased merger filing fee. The Bureau organized consultations with stakeholders in two phases. In the first phase, the Bureau held a consultation meeting with members of the Canadian Bar Association ("CBA") and conducted in-person consultation sessions with stakeholders in Toronto, Ontario and Montreal, Quebec. Stakeholders invited to the consultations included consumer groups and industry associations from the real-estate, oil and gas, manufacturing, grocery, telecommunications and retail sectors. In the second phase of the consultations, the fee proposal was posted on the Bureau's external website for public comment from October 20, 2017 to November 20, 2017. During this phase, the Bureau issued an Information Notice on the fee proposal and publicized the proposal on its social media pages. The feedback received was considered, as well as applicable government policies and priorities.

The service standards and written opinions set out in this Policy were developed following comments received during the June 2007 Merger Forum, and consultations at the  CBA Merger Roundtable in January 2010. A draft Handbook was posted on the Bureau's website in May 2010, and the Mergers Directorate also held a Fees and Service Standards Forum later that month in Toronto. The comments received through these consultations were considered, and many continue to be reflected in this Policy and the related Handbook. Stakeholders consulted included members of the legal and business communities.

4. Fees and service standards

The revised fee for notifications and ARC requests comes into effect May 1, 2018. Fees for written opinions that came into effect on April 1, 2003 remain unchanged. Where a merger notification in respect of a proposed transaction is withdrawn and subsequently re‑submitted, parties will not be required to pay the fee upon re‑submission, provided certain conditions, which are described in Part 6 (Withdrawing and Re‑Submitting a Notification), are met. The policy with regard to withdrawing and re‑submitting a notification came into effect November 1, 2010.

Service standards represent the maximum time within which the Bureau will endeavour to advise parties of its position in respect of a proposed transaction, assuming cooperation from the parties. The service standards for notifications and ARC requests, which are based on calendar days, have been revised as set out in Table 1 below. The revised service standards come into effect November 1, 2010.

Table 1: Service standards for notifications, ARC requests and written opinions
Service or
Regulatory
Process
Service Standard
(calendar days)
Commencement of Service Standard*
* In the case of an unsolicited bid under subsection 114(3), the service standard will commence when all parties other than the target corporation have complied with the applicable requirements.
Merger Notification Filings and ARC Requests
Non‑complex 14 days The day on which sufficient information has been received by the Commissioner to assign complexity. See the information set out in sections 3.3.2 and 3.3.3 of the Handbook.
Complex 45 days, except where a SIR is issued, in which case it shall be 30 days The day on which sufficient information has been received by the Commissioner to assign complexity; or, where a SIR has been issued, the day on which the information requested in the SIR has been received by the Commissioner from all SIR recipients. See the information set out in section 3.3.4 of the Handbook.
Part IX Written Opinions
Non‑complex 14 days The day on which sufficient information has been received by the Commissioner to assign complexity. See the information set out in section 4.1 of the Handbook.
Complex 28 days

Fees for notifications and ARC requests should be submitted at the time the request or filing is made.Footnote 3 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.Footnote 4

Fees for written opinions should be submitted at the 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.Footnote 5

Payments may be made by wire transferFootnote 6 or by cheque payable to the Receiver General for Canada. Payments for photocopying services may also be made by VISA or MasterCard. Written opinions and photocopying services are subject to federal and provincial taxes as indicated in Table 2 below.

Table 2: Fees for merger notification filings, ARC requests, written opinions and photocopies
Service or Regulatory Process Fee

* Where both a notification and an ARC request are submitted with respect to the same proposed transaction, only one fee applies. The fee is subject to an annual Consumer Price Index adjustment. The Bureau will announce the adjusted fee annually.

**Requests for written opinions and photocopying services are subject to applicable federal and provincial taxes; only Canadian residents pay Canadian taxes.

Notification $73,584*
ARC Request $73,584*
Written Opinion $5,000**
Photocopies $0.25**

5. Refund policy for notifications, ARC requests and written opinions under Part IX of the Act

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

  1. a notification is withdrawn within two business days of receipt by the Bureau;
  2. 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;
  3. 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;
  4. the Bureau exercises its discretion to not provide a written opinion within fourteen days of receipt of the written opinion request;
  5. the request for a written opinion is withdrawn within two business days of receipt of the request by the Bureau; or
  6. the Bureau identifies or is notified of an over‑payment within one year of the date the notification, ARC request or written opinion request was received by the Bureau. In these cases, the refund will only apply to the over‑payment.

6. Withdrawing and re‑submitting a notification ("pull and refile")

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 resubmit 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:

  1. 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;
  2. the Subsequent Notification is certified pursuant to section 118 of the Act;
  3. the Subsequent Notification is received by the Bureau within five business days of the initial notification having been withdrawn;
  4. there has been no material change in respect of the proposed transaction; and
  5. it is the first Subsequent Notification.

If these conditions are not met, the Subsequent Notification will be considered a fresh notification that is subject to the applicable fee and service standards. Where the above conditions are met, the service standard will, regardless of whether an ARC request has also been received in respect of the same transaction, recommence when the Subsequent Notification is received, assuming it meets the criteria set out above, to best align the service standard period with the statutory waiting period.

7. Review 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.

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, Quebec 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.

Contact information for the Commissioner is:

Commissioner of Competition
Competition Bureau
50 Victoria Street
Gatineau, Quebec K1A 0C9
Telephone: 819‑997‑5300
Facsimile: 819‑953‑5013

All complaints will be handled in the strictest confidence.

Date modified: