Budget Implementation Act, 2009 (S.C. 2009, c. 2)
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Assented to 2009-03-12
PART 12R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19COMPETITION ACT
Amendments to the Act
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, s. 31, c. 31, s. 53(F)
437. Subsections 114(1) to (3) of the Act are replaced by the following:
Marginal note:Notice of proposed transaction
114. (1) Subject to this Part, the parties to a proposed transaction shall, before the transaction is completed, notify the Commissioner that the transaction is proposed and supply the Commissioner with the prescribed information in accordance with this Part, if
(a) a person, or two or more persons pursuant to an agreement or arrangement, propose to acquire assets in the circumstances set out in subsection 110(2), to acquire shares in the circumstances set out in subsection 110(3) or to acquire an interest in a combination in the circumstances set out in subsection 110(6);
(b) two or more corporations propose to amalgamate in the circumstances set out in subsection 110(4); or
(c) two or more persons propose to form a combination in the circumstances set out in subsection 110(5).
Marginal note:Additional information
(2) The Commissioner or a person authorized by the Commissioner may, within 30 days after receiving the prescribed information, send a notice to the person who supplied the information requiring them to supply additional information that is relevant to the Commissioner’s assessment of the proposed transaction.
Marginal note:Contents of notice
(2.1) The notice shall specify the particular additional information or classes of additional information that are to be supplied.
Marginal note:Corporation whose shares are acquired
(3) If a proposed transaction is an acquisition of shares and the Commissioner receives information supplied under subsection (1) by a party to the transaction, other than the corporation whose shares are being acquired, before receiving such information from the corporation,
(a) the Commissioner shall immediately notify the corporation that the Commissioner has received from that party the prescribed information; and
(b) the corporation shall supply the Commissioner with the prescribed information within 10 days after being notified under paragraph (a).
Marginal note:R.S., c. 19 (2nd Supp.), s. 45; 1999, c. 2, par. 37(z.16)
438. Subsection 116(1) of the Act is replaced by the following:
Marginal note:Where information cannot be supplied
116. (1) If any of the information required under section 114 is not known or reasonably obtainable, or cannot be supplied because of the privilege that exists in respect of lawyers and notaries and their clients or because of a confidentiality requirement established by law, the person who is supplying the information may, instead of supplying the information, inform the Commissioner under oath or solemn affirmation of the matters in respect of which information has not been supplied and the reason why it has not been supplied.
Marginal note:1999, c. 2, s. 35
439. Section 123 of the Act is replaced by the following:
Marginal note:Time when transaction may not proceed
123. (1) A proposed transaction referred to in section 114 shall not be completed before the end of
(a) 30 days after the day on which information required under subsection 114(1) has been received by the Commissioner, if the Commissioner has not, within that time, required additional information to be supplied under subsection 114(2); or
(b) 30 days after the day on which the information required under subsection 114(2) has been received by the Commissioner, if the Commissioner has within the 30-day period referred to in paragraph (a) required additional information to be supplied under subsection 114(2).
Marginal note:Waiving of waiting period
(2) A proposed transaction referred to in section 114 may be completed before the end of a period referred to in subsection (1) if, before the end of that period, the Commissioner or a person authorized by the Commissioner notifies the persons who are required to give notice and supply information that the Commissioner does not, at that time, intend to make an application under section 92 in respect of the proposed transaction.
Marginal note:Acquisition of voting shares
(3) In the case of an acquisition of voting shares to which subsection 114(3) applies, the periods referred to in subsection (1) shall be determined without reference to the day on which the information required under section 114 is received by the Commissioner from the corporation whose shares are being acquired.
Marginal note:Failure to comply
123.1 (1) If, on application by the Commissioner, the court determines that a person, without good and sufficient cause, the proof of which lies on the person, has completed or is likely to complete a proposed transaction before the end of the applicable period referred to in section 123, the court may
(a) order the person to submit information required under subsection 114(2);
(b) issue an interim order prohibiting any person from doing anything that it appears to the court may constitute or be directed toward the completion or implementation of the proposed transaction;
(c) in the case of a completed transaction, order any party to the transaction or any other person, in any manner that the court directs, to dissolve the merger or to dispose of assets or shares designated by the court;
(d) in the case of a completed transaction, order the person to pay, in any manner that the court specifies, an administrative monetary penalty in an amount not exceeding $10,000 for each day on which they have failed to comply with section 123, determined by the court after taking into account any evidence of the following:
(i) the person’s financial position,
(ii) the person’s history of compliance with this Act,
(iii) the duration of the period of non-compliance, and
(iv) any other relevant factor; or
(e) grant any other relief that the court considers appropriate.
Marginal note:Purpose of order
(2) The terms of an order under paragraph (1)(d) shall be determined with a view to promoting conduct by the person that is in conformity with the purposes of this Part and not with a view to punishment.
Marginal note:Unpaid monetary penalty
(3) The amount of an administrative monetary penalty imposed under paragraph (1)(d) is a debt due to Her Majesty in right of Canada and may be recovered as such from the person in a court of competent jurisdiction.
Definition of “court”
(4) In this section, “court” means the Tribunal, the Federal Court or the superior court of a province.
Transitional Provision
Marginal note:Agreements or arrangements entered into before royal assent
440. Any party to an agreement or arrangement entered into before the day on which this Act receives royal assent may, within one year after that day, apply under section 124.1 of the Competition Act without payment of any fee for an opinion on the applicability to the agreement or arrangement of section 45 or 90.1 of the Competition Act, as enacted by sections 410 and 429, respectively, as if the agreement or arrangement had not yet been entered into and as if that section 45 or 90.1 were in force.
Consequential Amendments
R.S., c. 19 (2nd Supp.), Part ICompetition Tribunal Act
Marginal note:2002, c. 16, s. 19
441. Subsection 11(1) of the Competition Tribunal Act is replaced by the following:
Marginal note:Hearing of applications
11. (1) The Chairman of the Tribunal, sitting alone, or a judicial member designated by the Chairman, sitting alone, may hear and dispose of applications under subsection 100(1), section 103.1 or 103.3 or subsection 104(1) or 123.1(1) of the Competition Act and any related matters.
R.S., c. C-46Criminal Code
Marginal note:2004, c. 15, s. 108
442. Subparagraph (c)(i) of the definition “offence” in section 183 of the Criminal Code is replaced by the following:
(i) section 45 (conspiracies, agreements or arrangements between competitors),
R.S., c. 17 (3rd Supp.)Shipping Conferences Exemption Act, 1987
443. Subsection 4(4) of the Shipping Conferences Exemption Act, 1987 is replaced by the following:
Marginal note:Exception re predatory practices
(4) Subsection (1) does not have the effect of exempting from the application of the Competition Act any member of a conference who engages in, or who conspires, agrees or arranges with another person to engage in, a practice of selling products at prices unreasonably low that has the effect or tendency of substantially lessening competition or eliminating a competitor or is designed to have that effect and that is a practice of anti-competitive acts referred to in paragraph 79(1)(b) of that Act.
Coming into Force
Marginal note:Sections 410, 429 and 442
444. Sections 410, 429 and 442 come into force one year after the day on which this Act receives royal assent.
PART 13R.S., c. 28 (1st Supp.)INVESTMENT CANADA ACT
Amendments to the Act
445. Section 2 of the Investment Canada Act is replaced by the following:
Marginal note:Purpose of Act
2. Recognizing that increased capital and technology benefits Canada, and recognizing the importance of protecting national security, the purposes of this Act are to provide for the review of significant investments in Canada by non-Canadians in a manner that encourages investment, economic growth and employment opportunities in Canada and to provide for the review of investments in Canada by non-Canadians that could be injurious to national security.
Marginal note:1993, c. 35, s. 1
446. Paragraph (d) of the definition “Canadian” in section 3 of the Act is replaced by the following:
(d) an entity that is Canadian-controlled, as determined under subsection 26(1) or (2) and in respect of which there has been no determination made under subsection 26(2.1) or (2.11) or declaration made under subsection 26(2.2);
447. (1) The portion of subsection 10(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Exempt transactions
10. (1) This Act, other than Part IV.1, does not apply in respect of
Marginal note:2007, c. 6, s. 439(2)
(2) Subparagraphs 10(1)(j)(ii) and (iii) of the French version of the Act are replaced by the following:
(ii) soit par l’unité qui est une entité étrangère à laquelle le surintendant des institutions financières a délivré un agrément l’autorisant à garantir au Canada des risques aux termes de la partie XIII de la Loi sur les sociétés d’assurances, à condition que le revenu brut d’investissement qu’elle retire de l’entreprise canadienne soit ajouté au calcul de son revenu pour l’application du paragraphe 138(9) de la Loi de l’impôt sur le revenu et que les intérêts avec droit de vote de l’unité qui exploite l’entreprise canadienne ou les actifs utilisés dans son exploitation soient placés en fiducie au titre de cette partie,
(iii) soit par une personne morale constituée au Canada dont toutes les actions avec droit de vote émises, à l’exception de celles qui sont nécessaires pour conférer à une personne la qualité d’administrateur, sont la propriété d’une compagnie d’assurance visée au sous-alinéa (i) ou d’une entité étrangère visée au sous-alinéa (ii), ou d’une personne morale que l’une ou l’autre contrôle directement ou indirectement en ayant la propriété des actions avec droit de vote, à condition, dans le cas d’une entité étrangère visée au sous-alinéa (ii), que les intérêts avec droit de vote de l’unité qui exploite l’entreprise canadienne ou les actifs utilisés dans son exploitation soient placés en fiducie au titre de la partie XIII de la Loi sur les sociétés d’assurances;
(3) Subsection 10(2) of the Act is replaced by the following:
Marginal note:Exempt transactions — Part IV.1
(2) Part IV.1 does not apply in respect of
(a) the acquisition of control of a Canadian business in connection with the realization of security granted for a loan or other financial assistance and not for any purpose related to the provisions of this Act, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act;
(b) the acquisition of control of a Canadian business by reason of an amalgamation, a merger, a consolidation or a corporate reorganization following which the ultimate direct or indirect control in fact of the Canadian business, through the ownership of voting interests, remains unchanged, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act;
(c) the acquisition of control of a Canadian business carried on by an agent of Her Majesty in right of Canada or a province or by a Crown corporation within the meaning of the Financial Administration Act;
(d) any transaction to which Part XII.01 of the Bank Act applies; or
(e) the acquisition of control of a Canadian business by any of the following entities, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act:
(i) an insurance company incorporated in Canada that is a company or a provincial company to which the Insurance Companies Act applies, on the condition that the gross investment revenue of the company from the Canadian business is included in computing the income of the company under subsection 138(9) of the Income Tax Act,
(ii) a foreign entity that has been approved by order of the Superintendent of Financial Institutions under Part XIII of the Insurance Companies Act to insure in Canada risks, on the condition that the gross investment revenue of the company from the Canadian business is included in computing the income of the company under subsection 138(9) of the Income Tax Act and the voting interests of the entity carrying on the Canadian business, or the assets used in carrying on the Canadian business, are vested in trust under that Part, or
(iii) a corporation incorporated in Canada, all the issued voting shares of which, other than the qualifying voting shares of directors, are owned by an insurance company described in subparagraph (i), by a foreign entity described in subparagraph (ii) or by a corporation controlled directly or indirectly through the ownership of voting shares by such an insurance company or foreign entity, on the condition that, in the case of a foreign entity described in subparagraph (ii), the voting interests of the entity carrying on the Canadian business, or the assets used in carrying on the Canadian business, are vested in trust under Part XIII of the Insurance Companies Act.
Marginal note:If condition not complied with
(3) If any condition referred to in paragraph (1)(d) or (j) or (2)(e) is not complied with, the exemption under that paragraph does not apply and the transaction referred to in that paragraph is subject to this Act as if it had never been exempt.
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