doing business in canada - Davies Ward Phillips & Vineberg LLP

anticompetitive agreements among competitors where the new per se criminal offence (discussed above) doesnot apply.In many respects, agreements that fall within the scope these provisions will be examined in a mannerconsistent with the approach to mergers outlined in the Bureau's Merger Enforcement Guidelines.OTHER NON-CRIMINAL REVIEWABLE MATTERSOther non-criminal reviewable matters under the CA include exclusive dealing, tied selling and marketrestriction. As noted above, misleading advertising can be dealt with under civil or criminal provisions.PRIVATE RIGHTS OF ACTIONThe CA allows a private party to sue for and recover "an amount equal to the loss or damage proved to havebeen suffered by him" as a result of a defendant engaging in conduct contrary to the criminal provisions of theCA or failing to comply with an order made pursuant to the CA.In addition, the CA provides private parties with a limited right of access to the Tribunal under the refusal todeal, price maintenance, exclusive dealing, tied selling and market restriction provisions. In order to lessen therisk of strategic litigation, the CA includes several safeguards, such as the requirement that an applicant obtainleave of the Tribunal prior to bringing an application under one or more of these provisions. Additionalsafeguards against strategic litigation include the ability of the Tribunal to award costs against any party inaccordance with the Federal Court Rules and the inability of the Tribunal to award damages to an aggrievedparty.ACQUIRING A BUSINESS IN CANADAThe CA also establishes a comprehensive framework for reviewing and controlling mergers and acquisitions inCanada. In addition, transactions that exceed certain financial thresholds and, in the case of share acquisitions,that exceed an additional voting interest threshold may be subject to pre-merger notification requirements andcorresponding waiting periods. The CA applies to all mergers in Canada, while the Investment Canada Act istargeted at the acquisition of existing and the establishment of new Canadian businesses by non-Canadians.SUBSTANTIVE MERGER REVIEWAny merger (defined to mean the acquisition or establishment, direct or indirect, of control over or a significantinterest in all or part of a business of a competitor, supplier, customer or other person) may be challenged underthe CA by the Commissioner before the Tribunal. The Commissioner may bring an application before theTribunal in respect of a proposed transaction or in respect of a completed transaction provided the application ismade within one year of closing. The Tribunal may issue an order with respect to all or any part of a proposedtransaction, and may dissolve a completed transaction or order divestiture of assets or shares. Under certaincircumstances, the Tribunal may also make any other order to which the Commissioner and the parties to thetransaction consent. The Tribunal also has the power to grant injunctive relief.Before making any order, the Tribunal must determine that the transaction prevents or lessens, or is likely toprevent or lessen, competition substantially in the relevant market. In making this determination, the Tribunalgenerally applies economic and legal analyses similar to those employed by United States courts in antitrustmatters. Among the factors that the Tribunal may consider are the likelihood of foreign competition, whetherthe acquired business has failed or is likely to fail, the extent and availability of acceptable substitutes, barriersto entry, and innovation in the market. The Tribunal may also consider whether the transaction results in theremoval of a vigorous competitor from the market and whether effective competition would remain in themarket following the transaction.Competition Law 37