| Duration of
order
|
(2) Subject to subsection (5), an order
issued under subsection (1) shall have effect
for such period as is specified in it, not
exceeding fourteen days unless agreed to by
the person against whom the order is sought or
unless, on further application, the order is
extended for an additional period not
exceeding fourteen days.
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|
| Notice of
application by
Commissioner
|
(3) Subject to subsection (4), at least
forty-eight hours notice of an application
referred to in subsection (1) or (2) shall be
given by or on behalf of the Commissioner to
the person in respect of whom the order or
extension is sought.
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|
| Ex parte
application
|
(4) The court may proceed ex parte with an
application made under subsection (1) where
it is satisfied that subsection (3) cannot
reasonably be complied with or that the
urgency of the situation is such that service of
notice in accordance with subsection (3)
would not be in the public interest.
|
|
| Duration of ex
parte order
|
(5) An order issued ex parte shall have
effect for such period as is specified in it, not
exceeding seven days unless, on further
application made on notice as provided in
subsection (3), the order is extended for an
additional period not exceeding twenty-one
days.
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|
| Consent
orders
|
74.12 (1) Where an application is made to
a court for an order under this Part and the
Commissioner and the person against whom
the order is sought agree on the terms of the
order, whether or not any of the terms could
have been imposed by the court under this
Part, the order agreed to may be filed with the
court for immediate registration.
|
|
| Effect of
registration
|
(2) On being filed under subsection (1), an
order shall be registered and, when registered,
shall have the same force and effect, and all
proceedings may be taken, as if the order had
been made by the court.
|
|
| Rescission or
variation of
order
|
74.13 An order made under this Part may be
rescinded or varied by the court that made the
order where, on application by the
Commissioner or the person against whom the
order was made, the court finds that the
circumstances that led to the making of the
order have changed and that, in the
circumstances that exist at the time the
application is made, the order would not have
been made or would have been ineffective in
achieving its intended purpose.
|
|
| Evidence
|
74.14 In determining whether or not to
make an order under this Part, the court shall
not exclude from consideration any evidence
by reason only that it might be evidence in
respect of an offence under this Act or in
respect of which another order could be made
by the court under this Act.
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|
| Unpaid
monetary
penalty
|
74.15 The amount of an administrative
monetary penalty imposed on a person under
paragraph 74.1(1)(c) is a debt due to Her
Majesty in right of Canada and may be
recovered as such from that person in a court
of competent jurisdiction.
|
|
| Proceedings
commenced
under Part VI
|
74.16 No application may be made by the
Commissioner for an order under this Part
against a person where proceedings have been
commenced under section 52 against that
person on the basis of the same or substantially
the same facts as would be alleged in
proceedings under this Part.
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|
|
|
|
|
| Power of
courts
|
74.17 The rules committee of the Federal
Court, or a superior court of a province, may
make rules respecting the procedure for the
disposition of applications by that court under
this Part.
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|
|
|
|
|
| Appeal to
Federal Court
of Appeal
|
74.18 (1) An appeal may be brought in the
Federal Court of Appeal from any decision or
order made under this Part, or from a refusal
to make an order, by the Tribunal or the
Federal Court - Trial Division.
|
|
| Appeal to
provincial
court of
appeal
|
(2) An appeal may be brought in the court
of appeal of a province from any decision or
order made under this Part, or from a refusal
to make an order, by a superior court of the
province.
|
|
| Disposition of
appeal
|
(3) Where the Federal Court of Appeal or
the court of appeal of the province allows an
appeal under this section, it may quash the
decision or order appealed from, refer the
matter back to the court appealed from or
make any decision or order that, in its opinion,
that court should have made.
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|
| Appeal on
question of
fact
|
74.19 An appeal on a question of fact from
a decision or order made under this Part may
be brought only with the leave of the Federal
Court of Appeal or the court of appeal of the
province, as the case may be.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
23. Paragraphs 77(2)(a) to (c) of the Act
are replaced by the following:
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|
|
|
(a) impede entry into or expansion of a firm
in a market,
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|
|
(b) impede introduction of a product into or
expansion of sales of a product in a market,
or
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|
|
|
(c) have any other exclusionary effect in a
market,
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
24. (1) Subsection 100(1) of the Act is
replaced by the following:
|
|
| Interim order
where no
application
under section
92
|
100. (1) The Tribunal may issue an interim
order forbidding any person named in the
application from doing any act or thing that it
appears to the Tribunal may constitute or be
directed toward the completion or
implementation of a proposed merger in
respect of which an application has not been
made under section 92 or previously under this
section, where
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|
|
|
(a) on application by the Commissioner,
certifying that an inquiry is being made
under paragraph 10(1)(b) and that, in the
Commissioner's opinion, more time is
required to complete the inquiry, the
Tribunal finds that in the absence of an
interim order a party to the proposed merger
or any other person is likely to take an
action that would substantially impair the
ability of the Tribunal to remedy the effect
of the proposed merger on competition
under that section because that action
would be difficult to reverse; or
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|
|
|
(b) the Tribunal finds, on application by the
Commissioner, that there has been a
contravention of section 114 in respect of
the proposed merger.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
(2) The portion of subsection 100(3) of the
Act before paragraph (a) is replaced by the
following:
|
|
| Ex parte
application
|
(3) Where the Tribunal is satisfied, in
respect of an application for an interim order
under paragraph (1)(b), that
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
(3) Paragraph 100(4)(b) of the Act is
replaced by the following:
|
|
|
|
(b) subject to subsections (5) and (6), shall
have effect for such period of time as is
specified in it.
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|
|
(4) Subsections 100(5) and (6) of the Act
are replaced by the following:
|
|
| Duration of
order: inquiry
|
(5) The duration of an interim order issued
under paragraph (1)(a) shall not exceed thirty
days.
|
|
| Duration of
order: failure
to comply
|
(6) The duration of an interim order issued
under paragraph (1)(b) shall not exceed
|
|
|
|
(a) ten days after section 114 is complied
with, in the case of an interim order issued
on ex parte application; or
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|
|
|
(b) thirty days after section 114 is complied
with, in any other case.
|
|
| Extension of
time
|
(7) Where the Tribunal finds, on application
made by the Commissioner on forty-eight
hours notice to each person to whom an
interim order is directed, that the
Commissioner is unable to complete an
inquiry within the period specified in the order
because of circumstances beyond the control
of the Commissioner, the Tribunal may extend
the duration of the order to a day not more than
sixty days after the order takes effect.
|
|
| Completion of
inquiry
|
(8) Where an interim order is issued under
paragraph (1)(a), the Commissioner shall
proceed as expeditiously as possible to
complete the inquiry under section 10 in
respect of the proposed merger.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
25. (1) The definition ``prescribed'' in
subsection 108(1) of the English version of
the Act is replaced by the following:
|
|
| ``prescribed''
« réglementair
e »
|
``prescribed'' means prescribed by
regulations made under section 124;
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|
|
|
(2) Subsection 108(1) of the French
version of the Act is amended by adding the
following in alphabetical order:
|
|
| « règlementair
e »``prescribe
d''
|
« règlementaire » Prescrit par les règlements
d'application de l'article 124.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
26. Subsection 109(2) of the Act is
replaced by the following:
|
|
| Parties to
acquisition of
shares
|
(2) For the purposes of this Part, the parties
to a proposed acquisition of shares are the
person or persons who propose to acquire the
shares and the corporation the shares of which
are to be acquired.
|
|
|
|
27. Section 110 of the Act is amended by
adding the following after subsection (5):
|
|
| Combination
|
(6) Subject to sections 111, 112 and 113, this
Part applies in respect of a proposed
acquisition of an interest in a combination that
carries on an operating business otherwise
than through a corporation
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|
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|
|
(i) the aggregate value of the assets in
Canada, determined as of such time and
in such manner as may be prescribed, that
are the subject-matter of the combination
would exceed thirty-five million dollars
or such greater amount as may be pre
scribed, or
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|
|
|
(ii) the gross revenues from sales in or
from Canada, determined for such annual
period and in such manner as may be
prescribed, generated from the assets
referred to in subparagraph (i) would
exceed thirty-five million dollars or such
greater amount as may be prescribed, and
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|
|
|
(b) where, as a result of the proposed
acquisition of the interest, the person or
persons acquiring the interest, together with
their affiliates, would hold an aggregate
interest in the combination that entitles the
person or persons to receive more than
thirty-five per cent of the profits of the
combination, or more than thirty-five per
cent of its assets on dissolution or, where the
person or persons acquiring the interest are
already so entitled, to receive more than
fifty per cent of such profits or assets.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
28. The headings before section 111 of the
Act are replaced by the following:
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|
|
|
|
|
|
|
Acquisition of Voting Shares, Assets or
Interests
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
29. Paragraphs 111(b) and (c) of the Act
are replaced by the following:
|
|
|
|
(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);
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|
|
|
(c) an acquisition of voting shares, an
interest in a combination or assets that
would result from a gift, intestate
succession or testamentary disposition;
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
30. Paragraph 113(c) of the Act is
replaced by the following:
|
|
|
|
(c) a transaction in respect of which the
Commissioner or a person authorized by the
Commissioner has waived 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
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
31. (1) Paragraph 114(1)(a) of the Act is
replaced by the following:
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|
|
|
(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),
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|
|
|
(2) The portion of subsection 114(1) of the
Act after paragraph (c) is replaced by the
following:
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|
|
|
the parties to the proposed transaction shall,
before the transaction is completed, notify the
Commissioner that the transaction is proposed
and supply the Commissioner with
information in accordance with this Part.
|
|
|
|
(3) Subsection 114(2) of the Act is
replaced by the following:
|
|
| Information
required
|
(2) The information required under
subsection (1) is, at the option of the person
supplying the information, prescribed short
form information or prescribed long form
information but, where a person provides
prescribed short form information, the
Commissioner or a person authorized by the
Commissioner may, within fourteen days after
receiving it, require the person to supply the
prescribed long form information.
|
|
| Corporation
whose shares
are acquired
|
(3) Where a proposed transaction is an
acquisition of shares and the Commissioner
receives information supplied under
subsection (1) by a party to the transaction,
other than the corporation whose shares are
being acquired, before receiving such
information from the corporation,
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|
|
|
(a) the Commissioner shall immediately
notify the corporation that the
Commissioner has received from that party
the prescribed short form information or
prescribed long form information, as the
case may be;
|
|
|
|
(b) the corporation shall supply the
Commissioner with the prescribed short
form information within ten days after
being notified under paragraph (a) or the
prescribed long form information within
twenty days after being so notified, as the
case may be; and
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|
|
|
(c) where the corporation supplies the
prescribed short form information, the
Commissioner may require the corporation
to supply the prescribed long form
information and the corporation shall
supply it within twenty days after being so
required by the Commissioner.
|
|
| 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.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
32. Subsections 115(1) and (2) of the Act
are replaced by the following:
|
|
| 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.
|
|
| 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.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
33. Subsection 116(3) of the Act is
replaced by the following:
|
|
| Where
information
previously
supplied
|
(2.1) If any of the information required
under section 114 has previously been
supplied to the Commissioner, the person who
is supplying the information may, in lieu 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.
|
|
| Commissioner
may require
information
|
(3) Where a person 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
person, within seven days after the
Commissioner is so informed, that the
information is required, the person shall
supply the Commissioner with the
information.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
34. The heading before section 120 and
sections 120 to 122 of the Act are repealed.
|
|
| R.S., c. 19
(2nd Supp.),
s. 45
|
35. Section 123 of the Act is replaced by
the following:
|
|
| Time when
transaction
may not
proceed
|
123. (1) A proposed transaction referred to
in section 114 shall not be completed before
the expiration of
|
|
|
|
(a) fourteen days after the day on which
information required under section 114 has
been received by the Commissioner, where
the information is prescribed short form
information and the Commissioner has not,
within that time, required prescribed long
form information to be supplied under that
section,
|
|
|
|
(b) except as provided in paragraph (c),
forty-two days after the day on which
information required under section 114 has
been received by the Commissioner, where
the information is prescribed long form
information, or
|
|
|
|
(c) where the proposed transaction is an
acquisition of voting shares that is to be
effected through the facilities of a stock
exchange in Canada and the information
supplied is prescribed long form
information, twenty-one trading days, or
such longer period of time, not exceeding
forty-two days, as may be allowed by the
rules of the stock exchange before shares
must be taken up, after the day on which the
information required under section 114 has
been received by the Commissioner,
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|