New merger review thresholds for Competition Act and Investment Canada Act

The threshold for certain pre-closing net benefit reviews under the Investment Canada Act (ICA) and the threshold for a pre-closing merger notification under the Competition Act have been increased for 2017.

Competition Act

Canada uses a two-part test for determining whether a pre-merger notification is necessary. The two-part test is based on the size of the parties and the size of the transaction. The transaction size component can be adjusted annually for inflation. Under the size of the parties test, the parties, together with their affiliates, must have aggregate assets in Canada or annual gross revenues from sales in, from or into Canada, in excess of $400 million. Under the size of transaction test, the value of the assets in Canada or the annual gross revenue from sales (generated from those assets) in or from Canada of the target operating business and, if applicable, its subsidiaries, must be greater than $88 million. The 2016 transaction size threshold was $87 million.

These changes took effect March 4, 2017.

Investment Canada Act

In general, any acquisition by a “non-Canadian” of control of a “Canadian business” is either notifiable or reviewable under the ICA. Whether an acquisition is notifiable or reviewable depends on the structure of the transaction and the value and nature of the Canadian business being acquired, namely whether the transaction is a direct or indirect acquisition of control of a Canadian business. With limited exceptions, the federal government must be satisfied that a reviewable transaction “is likely to be of net benefit to Canada” before closing can proceed; notifiable transactions only require that the investor submit a report after closing. Separate and apart from the net benefit review, the ICA also provides that any investment in a Canadian business by a non-Canadian can be subject to a national security review.

In April 2015, the metric used to calculate the review thresholds changed. Prior to April 24, 2015, the acquisition of control of a Canadian business by a non-Canadian was generally subject to pre-closing review and approval by the responsible minister where the book value of the assets of the Canadian business exceeded a prescribed threshold ($375 million in 2016). Lower thresholds ($5 million) existed for the acquisition of control of a business related to Canada’s national identity or cultural heritage, or where the buyer was not from a member of the WTO.

As of April 24, 2015, the threshold for the net benefit review is generally based on the enterprise value of the Canadian business. The threshold was to be $600 million for two years, followed by two years at $800 million, and then $1 billion for a year, after which it would be adjusted annually for inflation. To encourage more foreign investment in Canada, the government plans to adopt the $1 billion limit earlier than expected, sometime in 2017. Until then, the threshold will change to $800 million on April 24, 2017.

Under the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), Canada committed to significantly increase the threshold for review under the ICA to $1.5 billion for investors from members of the European Union in most industry sectors. Given most-favoured-nation clauses in other free trade agreements Canada has signed, several of Canada’s other trading partners, including the United States, are poised to benefit from this provision as well. As the CETA has not yet taken effect, the timing for the $1.5 billion threshold is not known, but could be as early as summer of 2017.

How enterprise value will be determined will depend on the nature of the transaction:

The enterprise value test will not apply to all transactions. The lower review thresholds remain for: (i) cultural industries; (ii) investors from non-WTO members; and (iii) SOEs. These investments will continue to be reviewable based on a book value of assets test using the current monetary thresholds, which can be adjusted annually to account for changes in gross domestic product. Effective February 11, 2017, this threshold is now $379 million.