Law Times

Law Times • sepTember 18, 2017 Page 11 www.lawtimesnews.com Companies must co-operate with bureau, other jurisdictions Canada's role in mega-deals increasingly important BY DALE SMITH For Law Times C anada's inf luence in mega-deals is becoming increasingly important in getting the deal done and continues to position the country as a strategic asset in an increasingly global marketplace. If companies have assets lo- cated in Canada or business con- ducted in Canada that meets a threshold, they must co-operate not only with Canada's Compe- tition Bureau but also with any other jurisdiction that would have authority over the deal. "This is something that we have to think about pretty fre- quently," says David Rosner, partner with Blake Cassels & Graydon LLP in Toronto. "If the nature of mergers and acquisitions that's going on right now continues, it's something we will think about more and more." Rosner says that the Compe- tition Bureau has taken action in order to ensure that it is ready to review these increasingly large multinational deals, starting with setting up formal co-oper- ation mechanisms with other ju- risdictions and agencies in order to give themselves the ability to co-ordinate and create avenues for co-operation. "With respect to the United States, they have issued guid- ance, telling people how they in- tend to go about co-ordinating in a cross-border case, which is really helpful," says Rosner. "One of the other things they're doing is they continue to send their own personnel to other jurisdictions, both to get the benefit of other people's best practices, but also to establish re- lationships of trust with officials in other agencies." Rosner lists Washington, Brussels and Australia as ju- risdictions where the bureau has sent members of its staff for months at a time. He says that when his firm gets a global merger, it is quick to advise its clients as to the bu- reau's dynamic. "Part of that advice is that the bureau is going to co-ordinate globally, so the advice in Canada has to be, 'How are you going to react to that?'" says Rosner. He says companies need to realize that they need to engage with the Competition Bureau as soon as they engage with other agencies outside of Canada, not only because the bureau will be aware that they are doing so, but not engaging would mean miss- ing an opportunity to make im- portant submissions and under- stand the bureau's thinking. Melanie Aitken, a former Competition Bureau commis- sioner and now managing prin- ciple of Bennett Jones LLP's Washington, D.C. office, agrees that early co-operation is the best approach. "The other agencies will be looking for waivers to share the information, and we've given the information to the Canadian bureau," says Aitken. "If the U.S. authorities want it, there's no sense in resisting that. This is in the context of a trans- action, and even if it's not notifi- able in the U.S. for some reason but the U.S. is looking at the deal — it's a human process, why ir- ritate them? Don't make them think you're hiding something." Aitken says that if the context is that the American company has information and is wonder- ing if it should share it with the Canadian bureau, her advice would be to do so. "You want the agency to feel like they have what they need, and you want them to feel like they're not being ignored be- cause they're 'merely' Canada." Aitken adds that when she was commissioner, it was the bureau's position that it doesn't require a client's authorization to share information with another agency provided the bureau has decided that such sharing would promote the administration and enforce- ment of the Competition Act. "In a deal context, the bureau will tend to talk to the party first before they share information provided to it, and I don't think the bureau would likely share it if a party ever said no, which they typically don't," says Aitken. "But, theoretically, and the bureau has taken the position formally . . . it isn't up to the par- ties if sharing that information with another authority is in the interests of the administration and enforcement of the Cana- dian Competition Act." Rosner says he advises clients to be sure that what they're tell- ing Canadian authorities such as the bureau has to also make sense in the other jurisdictions where the transaction is tak- ing place, and conversely, what is said in the other jurisdiction needs to make sense to the Ca- nadian bureau. Lawyers should also take care to ensure that the documents that are being shared with other juris- FOCUS David Rosner says the Competition Bureau has taken action in order to ensure that it is ready to review increasingly large multi- national deals. It can be seen sometimes as more convenient to give the same thing to every regulator. D. Michael Brown Untitled-1 1 2017-09-13 1:43 PM See Companies, page 12

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