Law Times

PAGE 10 FOCUS sepTember 27, 2010 • Law Times New commissioner gets high marks for transparency Lawyers relieved as Competition Act changes give way to improved relations with bureau BY JULIUS MELNITZER For Law Times S ome 18 months after the Con- servative government ambushed competition lawyers by burying landmark changes to the Competition Act in a budget implementation bill, the confusion has subsided and given way to a surprisingly good relationship between Competition Commissioner Melanie Aitken and her staff and the private bar. Many lawyers attribute the co-oper- ative atmosphere to Aitken's dogged de- termination to foster communication, transparency, and accountability at the Competition Bureau. To that end, the bureau has continued to release materi- als on a regular basis aimed at increasing transparency in its processes while pro- viding greater certainty to stakeholders. "It's gratifying to see that the bureau hasn't limited its push for transparency and certainty to the period just after the amendments fi rst came out," says Anita Banicevic, a competition lawyer at Da- vies Ward Phillips & Vineberg LLP. Among the more recent releases is the bureau's draft Fee and Service Standards Handbook for Merger-Related Matters. It recognizes the fact that the bureau doesn't always complete its reviews of pre-merger notifi cations within the act's prescribed period of 30 days. To that end, the bureau has revised its non-binding service standards to change the maximum time period with- in which it will complete its review. Non-complex reviews will still take place within 14 days, the period allowed under the previous version of the service standards. But a 60-day period replaces the previous 10 weeks for complex trans- actions, and the bureau is proposing a 120-day timeline in place of the current 10 weeks for very complex matters. Th e draft handbook provides a long list of criteria for determining into which category a transaction may fall and guidance as to the type of informa- tion the bureau requires in order to do so. But Ackhurst worries this attempt at transparency may have the eff ect of muddying the waters. "Th e big laundry list as to what's re- quired for classifi cation will lead to some uncertainty because not everything that's on that list is required in every situation," he says. "In straightforward transactions, for example, information on vertical re- lationships, customer-supplier relation- ships, customer lists, and common direc- torships isn't really necessary." According to Ackhurst, the bureau 'There aren't that many hostile trans- actions, so this guidance is helpful for people who haven't dealt with one,' Kevin Ackhurst says of the bureau's new approach to sharing information. Th e bureau has also proposed a new category for cases in which it has issued a supplementary information request for further documentation. "In these cases, the service standards will correspond to the expiry of the stat- utory waiting period, which is 30 days after compliance with the supplemen- tary information request," says Kevin Ackhurst, a competition lawyer at Ogil- vy Renault LLP. "Th e reduction of time for complex and very complex transac- tions is a positive development." Ackhurst points out, however, that the bureau has been clearing complex cases in an average of 44 days during the last fi ve years. "So I hope that the restatement of the maximum time period doesn't indi- cate that reviews will take longer going forward," Ackhurst says. is well aware of the concerns. Still, he notes the sheer existence of the list may make risk-averse parties nervous. Otherwise, the bureau is changing its procedures in hostile transactions. Th e law requires it to notify targets imme- diately when a bidder in such a transac- tion submits a pre-merger notifi cation. Th e target must then fi le its own notifi - cation within 10 days. Because of statutory confi dentiality obligations, the notice of pre-merger notifi cation has been the only informa- tion the bureau has historically shared with the bidder. But it will now ap- proach the issue on a case-by-case basis while striving to disclose information equitably with both parties. Included in the information it may share is the complexity classifi cation; the review's timing; the date on which the other party has certifi ed completion of a response to a supplementary information request; its preliminary and fi nal views on matters such as market defi nition and barriers to entry; and its fi nal conclusions on the lessening of competition. "Th ere aren't that many hostile transac- tions, so this guidance is helpful for peo- ple who haven't dealt with one," Ackhurst says. "It also defi nitely levels the playing fi eld between bidders and targets." As well, the bureau has tried to de- lineate the line between the investiga- tive and prosecutorial stages of criminal violations under the act by releasing a memorandum of understanding with the Public Prosecution Service of Canada. Th e memorandum stipulates that the bureau is responsible for investigat- ing alleged contraventions and, where warranted, referring potential criminal violations to the prosecution service. "It is up to the prosecution service to decide whether to prosecute such cases," Ackhurst says. LT Federal legal team assisted by country's top legal minds Continued from page 8 becomes ever more anachronistic," he says. "Bear in mind that justice Dickson's comments in Multiple Access came almost 30 years ago." Neil Finkelstein, a veteran litigator at McCarthy Tétrault LLP who has studied the scope of the trade and commerce power, is even more emphatic. "Th e case for the constitutionality of a federal regulator is powerful and overwhelming," he says. "It will be very diffi cult to argue the other side." Indeed, the federal govern- Canadian Law of Competitive Bidding and Procurement Understand the rapidly evolving and unique rules for procurement processes This is a guide to the law governing the procurement of construction and other services in Canada. Rarely discussed and analyzed together, this text reviews both the court (including the 2010 Supreme Court decision of decisions, as well as trade agreement rules on fair procurement. It also contains a detailed discussion of many of the current, unresolved issues in competitive bidding. This work provides a step-by-step analysis of the law at each stage of the procurement process to help you avoid the pitfalls. Find out more about: ORDER your copy today Hardbound • Approx. 500 pp. October 2010 • Approx. $175 P/C 0994010000 ISBN 978-0-88804-504-1 • • • • • • • • • bid solicitation drafting the invitation fairness and electronic tendering contract clauses bid evaluation post-closing changes and negotiation bid irrevocability tort claims arising from bid processes bid offences A must-have resource for legal and procurement professionals ) and tribunal ment, known to have a power- ful in-house constitutional law legal team that rarely requires outside assistance, has pulled out all the stops to assist with issues relating to the proposed legislation by retaining former Supreme Court justice Frank Iacobucci, now at Torys; Blake Cassels & Graydon LLP's Toronto-based scholar-in-resi- dence Peter Hogg; and U of T Faculty of Law professor Mi- chael Trebilcock. Even so, it remains to be seen whether the parties will resolve the issues by verdict or settlement. In either case, it's important that there be no loose ends. "Market participants need assurance about the stability of any new regime, and to under- stand the rules governing the relationship between partici- pating and non-participating jurisdictions if some provinces choose not to opt in," says Jere- my Fraiberg, a securities lawyer at Osler Hoskin & Harcourt LLP. LT canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0927 www.lawtimesnews.com Tercon Contractors Anne C. McNeely ...and much more!

• Cover
• Libel Woes
• Legal Circus
• Focus On Business/Competition Law