A Path to Proportionality in the SIR Process

Canadian Competition Law Review - 28-1 (2015) | JULY 6, 2015
Lisa Scheulderman
In a merger review, the Commissioner of Competition has the power to issue supplementary information requests ("SIRs") to merging parties, in addition to the standard disclosure required under the Competition Act. The authors suggest that the principle of proportionality is and should be applicable to the exercise of the Commissioner's SIR power; however, current merger review procedures, including pre- and post-issuance dialogue and the Competition Bureau's internal appeal process, do not provide effective avenues for parties to challenge the scope or proportionality of a SIR. Recent decisions of the Competition Tribunal suggest that the principle of proportionality—well recognized in civil proceedings in Canada—is equally applicable in Tribunal proceedings. If a party were to take the risky course of closing a transaction over the Commissioner's objections after refusing to comply with an overbroad SIR, and in the event of a proceeding brought by the Commissioner, challenge the scope of the SIR before the Tribunal, the Tribunal would likely consider the proportionality of the SIR. The authors conclude that policy and legislative changes—including acknowledgment and implementation by the Bureau of the proportionality principle, and the oversight of SIR appeals by an independent arbiter—are necessary to better ensure proportionality in the SIR process. 

Article published in the Can Comp L Rev, Vol. 28, No. 1 (Spring, 2015).

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