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

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.

Combinations

Marginal note:Combinations that are joint ventures

112 A combination is exempt from the application of this Part if

• (a) all the persons who propose to form the combination are parties to an agreement in writing or intended to be put in writing that imposes on one or more of them an obligation to contribute assets and governs a continuing relationship between those parties;

• (b) no change in control over any party to the combination would result from the combination; and

• (c) the agreement referred to in paragraph (a) restricts the range of activities that may be carried on pursuant to the combination, and contains provisions that would allow for its orderly termination.

General

Marginal note:General exemptions

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

• (a) a transaction all the parties to which are affiliates of each other;

• (a.1) a transaction in respect of which the Minister of Finance has certified to the Commissioner under paragraph 94(b) that it is, or would be, in the public interest;

• (b) a transaction in respect of which the Commissioner has issued a certificate under section 102;

• (c) a transaction in respect of which the Commissioner or a person authorized by the Commissioner has waived, during the year preceding the day on which the transaction was completed, the obligation under this Part to notify the Commissioner and supply information because substantially similar information was previously supplied in relation to a request for a certificate under section 102; and

• (d) such other classes of transactions as may be prescribed.

Anti-avoidance

Marginal note:Application of sections 114 to 123.1

113.1 If a transaction or proposed transaction is designed to avoid the application of this Part, sections 114 to 123.1 apply to the substance of the transaction or proposed transaction.

Notice and Information

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 entities 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:Unsolicited bid

  (3) If a proposed transaction is an unsolicited or hostile take-over bid in respect of an entity and the Commissioner receives prescribed information supplied under subsection (1) by a person who has commenced or has announced an intention to commence a take-over bid, the Commissioner shall, if he or she has not already received the prescribed information from the entity, immediately notify the entity that the Commissioner has received the prescribed information from that person and the entity shall supply the Commissioner with the prescribed information within 10 days after being so notified.

• Marginal note:Notice and information

  (4) Any of the persons required to give notice and supply information under this section may

  • (a) if duly authorized to do so, give notice or supply information on behalf of and in lieu of any of the others who are so required in respect of the same transaction; or

  • (b) give notice or supply information jointly with any of those others.

Marginal note:Prior notice of acquisitions

• 115 (1) It is not necessary to comply with section 114 in respect of a proposed acquisition of voting shares or of an interest in a combination where a limit set out in subsection 110(3) or (6) would be exceeded as a result of the proposed acquisition within three years immediately following a previous compliance with section 114 required in relation to the same limit.

• Marginal note:Notice of future acquisition

  (2) Where a person or persons who propose to acquire voting shares or an interest in a combination are required to comply with section 114 because the twenty or thirty-five per cent limit set out in subsection 110(3) or the thirty-five per cent limit set out in subsection 110(6) would be exceeded as a result of the acquisition, the person or persons may, at the time of the compliance, give notice to the Commissioner of a proposed further acquisition of voting shares or of an interest in a combination that would result in a fifty per cent limit set out in that subsection being exceeded, and supply the Commissioner with a detailed description in writing of the steps to be carried out in the further acquisition.

• Marginal note:Exemption for further acquisitions of voting shares

  (3) It is not necessary to comply with section 114 in respect of a proposed further acquisition referred to in subsection (2) if

  • (a) notice of the further acquisition is given to the Commissioner under subsection (2) and it is carried out in accordance with the description supplied under that subsection; and

  • (b) an additional notice of the further acquisition is given to the Commissioner in writing within twenty-one, and at least seven, days before the further acquisition.

• Marginal note:Limitation

  (4) Subsection (3) does not apply in respect of a further acquisition unless the further acquisition is completed within one year after notice of it is given under subsection (2).

Marginal note:If 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 entity or individual 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:If information not relevant

  (2) If any of the information required under section 114 could not, on any reasonable basis, be considered to be relevant to an assessment by the Commissioner as to whether the proposed transaction would or would be likely to prevent or lessen competition substantially, the entity or individual 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 why the information was not considered relevant.

• Marginal note:If information previously supplied

  (2.1) If any of the information required under section 114 has previously been supplied to the Commissioner, the entity or individual who is supplying the information may, instead of supplying it, inform the Commissioner under oath or solemn affirmation of the matters in respect of which information has previously been supplied and when it was supplied.

• Marginal note:Commissioner may require information

  (3) If an entity or individual chooses not to supply the Commissioner with information required under section 114 and so informs the Commissioner in accordance with subsection (2) or (2.1) and the Commissioner or a person authorized by the Commissioner notifies that entity or individual, within seven days after the Commissioner is so informed, that the information is required, the entity or individual shall supply the Commissioner with the information.

Marginal note:Saving

• 117 (1) Nothing in section 114 requires

  • (a) any individual who is a director of a corporation to supply information that is known to that individual by virtue only of their position as a director of an affiliate of the corporation that is neither a wholly-owned affiliate nor a wholly-owning affiliate of the corporation; or

  • (b) any individual who, in respect of an entity other than a corporation, serves in a capacity similar to that of a director to supply information that is known to that individual by virtue only of their serving in that capacity with respect to an affiliate of the entity that is neither a wholly-owned affiliate nor a wholly-owning affiliate of the entity.

• Marginal note:Wholly-owned affiliate

  (2) For the purposes of subsection (1), one corporation is the wholly-owned affiliate of another corporation if all its outstanding voting shares, other than shares necessary to qualify persons as directors, are beneficially owned by that other corporation directly, or indirectly through one or more affiliates where all the outstanding voting shares of the affiliates, other than shares necessary to qualify persons as directors, are beneficially owned by that other corporation or each other.

• Marginal note:Wholly-owning affiliate

  (3) For the purposes of subsection (1), one corporation is the wholly-owning affiliate of another corporation if it beneficially owns all the outstanding voting shares of that other corporation, other than shares necessary to qualify persons as directors, directly, or indirectly through one or more affiliates where all the outstanding voting shares of the affiliates, other than shares necessary to qualify persons as directors, are beneficially owned by the corporation or each other.

Marginal note:Information to be certified

118 The information supplied to the Commissioner under section 114 shall be certified on oath or solemn affirmation as having been examined by one of the following individuals and as being, to the best of that individual’s knowledge and belief, correct and complete in all material respects:

• (a) in the case of a corporation supplying the information, by an officer of the corporation or other person duly authorized by the board of directors or other governing body of the corporation;

• (b) in the case of an entity other than a corporation supplying the information, by an individual who serves in a capacity similar to that of an officer of a corporation or other individual duly authorized by the governing body of that entity;

• (c) in the case of an individual supplying the information, by that individual.

Marginal note:Where transaction not completed

119 Where notice is given and information supplied in respect of a proposed transaction under section 114 but the transaction is not completed within one year thereafter or such longer period as the Commissioner may specify in any particular case, section 114 applies as if no notice were given or information supplied.

120 to 122 [Repealed, 1999, c. 2, s. 34]

Completion of Proposed Transactions

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 the 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 parties to the transaction that the Commissioner does not, at that time, intend to make an application under section 92 in respect of that proposed transaction.

• Marginal note:Acquisition of equity interests

  (3) In the case of an acquisition of equity interests 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 entity whose equity interests 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 or without having given the notice or information required under subsection 114(1), 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.

• Marginal note:Definition of court

  (4) In this section, court means the Tribunal, the Federal Court or the superior court of a province.