Litigation and Dispute Resolution Guide

purchaser to dispose of all or some assets or shares, or to order the parties not to proceed with allor part of a proposed merger if the Tribunal finds, on the balance of probabilities, that a mergeror proposed merger prevents or lessens, or is likely to prevent or lessen, competitionsubstantially in a relevant market and the efficiencies likely to result from the proposedtransaction do not outweigh its likely anticompetitive effects.In considering whether to make such an order, the Tribunal is directed to consider a number offactors, such as the extent of foreign competition, whether the business being purchased hasfailed or is likely to fail, the extent to which acceptable substitutes are available, barriers to entry,whether effective competition would remain, whether a vigorous and effective competitor wouldbe removed, the nature of change and innovation in a relevant market, and any other factorrelevant to competition.2.2 Securities Commissions in CanadaThe regulation of the capital markets is carried out largely within provincial jurisdiction.Accordingly, each province has established laws, regulations, rules and policies concerning thegovernance of the capital markets. Uniformly throughout Canada, each province has establisheda Securities Commission within the province to regulate and enforce securities laws. Happily, thevarious Securities Commissions have in large measure adopted similar or harmoniousapproaches to most aspects of the means by which the capital markets are governed.Under its empowering legislation, each provincial Securities Commission is responsible for theadministration of the respective provincial Securities Act and is obliged to perform all the dutiesassigned to the Commission pursuant to the respective Securities Act. These duties entailadministrative functions, rule-making and policy-making functions and, significantly,investigation and enforcement functions.The investigation and enforcement provisions are substantially similar across the provincialSecurities Commissions.To enforce the securities laws of each province, the Securities Commissions are given substantialenforcement authority. That authority includes the ability to investigate any matter theCommission may consider expedient:• For the due administration of securities laws or the regulation of the capital markets in eachprovince.• To assist in the due administration of the securities laws or the regulation of the capitalmarkets in other jurisdictions.The investigation authority allows persons appointed by the Commission to investigate orinquire into the affairs of any person or company including the right to examine persons,documents or things in respect of which the investigation is ordered. The power of the personmaking the investigation is extensive and includes the power to summon and enforce theattendance of any person and the authority to compel that person to testify on oath or otherwise.Based upon the results of an investigation, the Securities Commissions are given the concomitantBLAKE, CASSELS & GRAYDON LLP Page 45