I'm happy to try to do this.

For the consideration of the committee, the way the act currently works is a test—it's a substantial lessening or prevention of competition. The system in Canada is merger as of right, so to speak, unless the commissioner challenges a merger. The threshold to successfully challenge a merger in Canada is the substantial lessening of competition.

What the court has said is this. Let's say a merger is above that threshold and is challenged. When it comes time to decide the remedies, we need to bring the merger back to below the substantial lessening of competition threshold.

Comparing with other countries is always a bit challenging, because countries have different structures and regimes. One consideration is that even though this threshold may vary in countries, we understand that it's always in parallel, so that the threshold to challenge a merger and what the remedies should achieve are always equivalent.

In the U.S., the heads of the FTC and the DOJ actually contributed to the public consultation that the government ran last year. In their submission to the government, they said:

When analyzing a potential remedy, the courts and agencies focus on whether the proposed remedy would “eliminate the effects of the acquisition offensive to the statute.”

The idea of the remedy is to make sure that the merger no longer offends the statute and so is not against the law, as it currently is.

I think it's important to also understand that in Europe, the European Commission is both the commissioner of competition and the tribunal of competition. It is the decider of first instance. It is the same entity for what arises as a merger and deciding on the remedy.

Again, we understand that the threshold is the same. A potential challenge, but maybe not an unsurmountable one, in the Canadian context would be that if a merger substantially lessens competition, it can be challenged, but once it's been challenged, the remedy has to be zero impact on competition, not substantially less.

You have two different things. If you're able to fly under the radar, so to speak, you're able to be under the “substantial lessening” threshold, but if you get challenged, then the remedies are stronger.

There's a bit of a principle question and maybe a practical one, too. If the remedies are bringing parties lower than what would authorize the commissioner to challenge, why wouldn't they just disband a merger and refile a separate one that's just under the threshold? Then the commissioner would have no possibility to intervene.

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