Tervita v. Canada (Commissioner of Competition): Supreme Court of Canada Merger Analysis Case


It has been quite some time since the Supreme Court of Canada considered the merger provisions contained in the Competition Act. On January 22, 2015, the SCC issued its decision in Tervita v. Canada (Commissioner of Competition), overturning the decision of the Federal Court of Appeal that had required Tervita to divest its interest in Babkirk Landfill Services Inc., a company it had acquired in 2011. The Court agreed with the Commissioner of Competition’s position that the merger was likely to prevent competition substantially. However, the Court concluded that the efficiencies defence in s. 96 of the Act had been made out, in large part because the Commissioner had not met her burden of proving quantitative anti-competitive effects to offset the efficiency gains established by the merging parties.