Contested Mergers in Canada: The Tiger in the Cage

Abstract

Canada adopted a sophisticated merger review regime in 1986, but contested mergers remain a rarity. Nevertheless, the specter of merger litigation influences most complex merger reviews. Indeed, actual litigation is merely the tip of the iceberg. The prospect of litigation and the discipline it brings to the process influence all but the simplest cases. This article explains the Canadian merger review paradigm, including judicial oversight. It also provides a summary of the litigated merger cases and explains the significance of a recent case involving hazardous waste disposal in British Columbia to the tactical and strategic decisions operating in mergers that may seriously affect competition. Finally, this article provides insights as to why so few mergers are litigated in Canada as compared to the United States.