Merger Review under the Competition Act: The Meaning of Substantial Lessening of Competition

JEFFREY TROSSMAN

ABSTRACT

This article discusses Canadian merger policy under Part VII of the Competition Act. The analysis focuses on the important issue of how the Competition Tribunal is likely to interpret section 64, which prohibits mergers that "lessen competition substantially." After reviewing the statutory scheme, the author considers cases which have been litigated before the Competition Tribunal or in which the Director has reached a negotiated settlement with the parties. U.S. jurisprudence under a similar American provision is also examined. The author concludes that the Competition Act mandates a broad, fact sensitive inquiry into all the factors relevant to determining whether the merger gives rise to an undue accumulation of market power. The author views the Director's enforcement policy to date as unduly settlement-oriented. He also notes that parties cannot meaningfully bargain in the shadow of the law until the Competition Tribunal is given a fuller opportunity to enunciate what it means to "lessen competition substantially."

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Citation: (1990) 48(1) U.T. Fac. L. Rev. 117.
Copyright © 1990. University of Toronto Faculty of Law Review.
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