Competition Act (R.S.C., 1985, c. C-34)

Marginal note:Evidence

107 In determining whether or not to make an order under this Part, the Tribunal shall not exclude from consideration any evidence by reason only that it might be evidence in respect of an offence under this Act or in respect of which another order could be made by the Tribunal under this Act.

PART IXNotifiable Transactions

Interpretation

Marginal note:Definitions

• 108 (1) In this Part,

  equity interest

  equity interest means

  • (a) in the case of a corporation, a share in the corporation; and

  • (b) in the case of an entity other than a corporation, an interest that entitles the holder of that interest to receive profits of that entity or assets of that entity on its dissolution; (intérêt relatif à des capitaux propres)

  operating business

  operating business means a business undertaking in Canada to which employees employed in connection with the undertaking ordinarily report for work; (entreprise en exploitation)

  person

  person means an entity, an individual, a trustee, an executor, an administrator or a liquidator of the succession, an administrator of the property of others or a representative, but does not include a bare trustee or a trustee responsible exclusively for preserving and transferring the property of a person; (personne)

  prescribed

  prescribed means prescribed by regulations made under section 124; (réglementaire)

  voting share

  voting share means any share that carries voting rights under all circumstances or by reason of an event that has occurred and is continuing. (actions comportant droit de vote)

• Marginal note:Entities controlled by Her Majesty

  (2) For the purposes of this Part, except section 113, one entity is not affiliated with another entity by reason only of the fact that both entities are controlled by Her Majesty in right of Canada or a province, as the case may be.

• Marginal note:Computation of time

  (3) In this Part, a time period is calculated in accordance with sections 26 to 30 of the Interpretation Act except that the following days are also considered to be a holiday as defined in subsection 35(1) of that Act:

  • (a) Saturday;

  • (b) if Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday; and

  • (c) if another holiday falls on a Saturday or Sunday, the following Monday.

• Marginal note:Submission after 5:00 p.m.

  (4) For the purposes of this Part, anything submitted to the Commissioner after 5:00 p.m. (Eastern Time) is deemed to be received by the Commissioner on the next day that is not a holiday.

Application

Marginal note:General limit relating to parties

• 109 (1) This Part does not apply in respect of a proposed transaction unless the parties thereto, together with their affiliates,

  • (a) have assets in Canada that exceed four hundred million dollars in aggregate value, determined as of such time and in such manner as may be prescribed, or such greater amount as may be prescribed; or

  • (b) had gross revenues from sales in, from or into Canada, determined for such annual period and in such manner as may be prescribed, that exceed four hundred million dollars in aggregate value, or such greater amount as may be prescribed.

• Marginal note:Parties to acquisition of shares or interest

  (2) For the purposes of this Part,

  • (a) the parties to a proposed acquisition of shares are the person or persons who propose to acquire the shares and the corporation whose shares are to be acquired; and

  • (b) the parties to a proposed acquisition of an interest in a combination are the person or persons who propose to acquire the interest and the combination whose interest is to be acquired.

Marginal note:Application of Part

• 110 (1) This Part applies only in respect of proposed transactions described in this section.

• Marginal note:Acquisition of assets

  (2) Subject to sections 111 and 113, this Part applies in respect of a proposed acquisition of any of the assets in Canada and, if any, outside Canada, of an operating business if the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, or the gross revenues from sales in, from or into Canada generated from all the assets proposed to be acquired, determined for the annual period and in the manner that is prescribed, would exceed the amount determined under subsection (7) or (8), as the case may be.

• Marginal note:Acquisition of shares

  (3) Subject to sections 111 and 113, this Part applies in respect of a proposed acquisition of voting shares of a corporation that carries on an operating business or controls an entity that carries on an operating business

  • (a) if

    • (i) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are owned by the corporation or by entities controlled by that corporation, other than assets that are equity interests in those entities, would exceed the amount set out in subsection (7) or the amount determined under subsection (8), as the case may be, or

    • (ii) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that are owned by the corporation or by entities controlled by that corporation would exceed the amount determined under subsection (7) or (8), as the case may be; and

  • (b) if, as a result of the proposed acquisition of the voting shares, the person or persons acquiring the shares, together with their affiliates, would own voting shares of the corporation that in the aggregate carry more than the following percentages of the votes attached to all the corporation’s outstanding voting shares:

    • (i) 20%, if any of the corporation’s voting shares are publicly traded,

    • (ii) 35%, if none of the corporation’s voting shares are publicly traded, or

    • (iii) 50%, if the person or persons already own more than the percentage set out in subparagraph (i) or (ii), as the case may be, before the proposed acquisition.

• Marginal note:Acquisition of assets and shares

  (3.1) If a proposed transaction would be completed through an acquisition of assets referred to in subsection (2) and shares referred to in subsection (3),

  • (a) the value of the assets calculated under subsection (2) and the value of the assets calculated under subparagraph (3)(a)(i) are to be aggregated for the purpose of determining if those assets exceed in aggregate value the amount determined under subsection (8); and

  • (b) the gross revenues calculated under subsection (2) and the gross revenues calculated under subparagraph (3)(a)(ii) are to be aggregated for the purpose of determining if those gross revenues exceed in aggregate value the amount determined under subsection (8).

• Marginal note:Amalgamation

  (4) Subject to subsection (4.1) and section 113, this Part applies in respect of a proposed amalgamation of two or more entities if one or more of those entities carries on an operating business, or controls an entity that carries on an operating business, and if

  • (a) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that would be owned by the continuing entity that would result from the amalgamation or by entities controlled by the continuing entity, other than assets that are equity interests in those entities, would exceed the amount set out in subsection (7) or the amount determined under subsection (8), as the case may be; or

  • (b) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that would be owned by the continuing entity that would result from the amalgamation or by entities controlled by the continuing entity would exceed the amount determined under subsection (7) or (8), as the case may be.

• Marginal note:General limit — parties to amalgamation

  (4.1) This Part does not apply in respect of a proposed amalgamation of two or more entities if one or more of those entities carries on an operating business or controls an entity that carries on an operating business, unless each of at least two of the amalgamating entities, together with its affiliates,

  • (a) has assets in Canada, determined as of the time and in the manner that is prescribed, that exceed in aggregate value the amount determined under subsection (7) or (8), as the case may be; or

  • (b) has gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, that exceed in aggregate value the amount determined under subsection (7) or (8), as the case may be.

• Marginal note:Combination

  (5) Subject to sections 112 and 113, this Part applies in respect of a proposed combination of two or more persons to carry on business otherwise than through a corporation if one or more of those persons, or one or more of their affiliates, proposes to contribute to the combination assets that form all or part of an operating business carried on by those persons or affiliates, and if

  • (a) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are the subject-matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be; or

  • (b) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that are the subject matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be.

• Marginal note:Combination

  (6) Subject to sections 111, 112 and 113, this Part applies in respect of a proposed acquisition of an interest in a combination that carries on an operating business otherwise than through a corporation

  • (a) if

    • (i) the aggregate value of the assets in Canada, determined as of the time and in the manner that is prescribed, that are the subject-matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be, or

    • (ii) the gross revenues from sales in, from or into Canada, determined for the annual period and in the manner that is prescribed, generated from all the assets that are the subject matter of the combination would exceed the amount determined under subsection (7) or (8), as the case may be; and

  • (b) if, as a result of the proposed acquisition of the interest, the person or persons acquiring the interest, together with their affiliates, would hold an aggregate interest in the combination that entitles the person or persons to receive more than 35% of the profits of the combination, or more than 35% of its assets on dissolution, or, if the person or persons acquiring the interest are already so entitled, to receive more than 50% of such profits or assets.

• Marginal note:Amount for notification

  (7) In the year in which this subsection comes into force, the amount for the purposes of subsections (2) to (6) is $70,000,000.

• Marginal note:Amount for notification — subsequent years

  (8) In any year following the year in which subsection (7) comes into force, the amount for the purposes of any of subsections (2) to (6) is

  • (a) any amount that is prescribed for that subsection; or

  • (b) if no amount has been prescribed for that subsection,

    • (i) the amount determined by the Minister in January of that year by rounding off to the nearest million dollars the amount arrived at by using the formula

      A × (B / C)

      where

      A

      is the amount for the previous year,

      B

      is the average of the Nominal Gross Domestic Products at market prices for the most recent four consecutive quarters, and

      C

      is the average of the Nominal Gross Domestic Products at market prices for the four consecutive quarters for the comparable period in the year preceding the year used in calculating B, or

    • (ii) until the Minister has published under subsection (9) an amount for that year determined under subparagraph (i), if the Minister does so at all, the amount for that subsection for the previous year.

• Marginal note:Publication in Canada Gazette

  (9) As soon as possible after determining the amount for any particular year, the Minister shall publish the amount in the Canada Gazette.

Exemptions

Acquisition of Voting Shares, Assets or Interests

Marginal note:Acquisitions

111 The following classes of transactions are exempt from the application of this Part:

• (a) an acquisition of real property or goods in the ordinary course of business if the person or persons who propose to acquire the assets would not, as a result of the acquisition, hold all or substantially all of the assets of a business or of an operating segment of a business;

• (b) an acquisition of voting shares or of an interest in a combination solely for the purpose of underwriting the shares or the interest, within the meaning of subsection 5(2);

• (c) an acquisition of voting shares, an interest in a combination or assets that would result from a gift, intestate succession or testamentary disposition;

• (d) an acquisition of collateral or receivables, or an acquisition resulting from a foreclosure or default or forming part of a debt work-out, made by a creditor in or pursuant to a credit transaction entered into in good faith in the ordinary course of business;

• (e) an acquisition of a Canadian resource property, as defined in subsection 66(15) of the Income Tax Act, pursuant to an agreement in writing that provides for the transfer of that property to the person or persons acquiring the property only if the person or persons acquiring the property incur expenses to carry out exploration or development activities with respect to the property; and

• (f) an acquisition of equity interests in an entity under an agreement in writing that provides for the creation of those equity interests only if the person or persons acquiring them incur expenses to carry out exploration or development activities with respect to a Canadian resource property, as defined in subsection 66(15) of the Income Tax Act, in respect of which the entity has the right to carry out those activities, if the entity does not have any significant assets other than that property.