Mergers and the Competition Act

Canada's Mergers Laws on the Books Since 1889, But in Their 75 Years History, Only Eight Merger Cases Have Been Taken Through a Full Trial and the Crown Has Never Won a Contested Case in Appeal. Based on This Record, the New Competition Act Has Tried to Remedy the Perceived Faults of the Old Law. We Shall Argue in This Paper That the New Law May Introduce New Problems Since It Is Based on a Flawed View of Competition. We Shall Propose Both a Definition of Competition, on Which the Application of the Law Should Be Based, and a Criterion on Deciding Whether Or Not a Merger Is Anti-Competitive Derived From This Definition. This Criterion Will Be Based on the Relative Innovative Performance of the Companies Involved in the Merger, Rather Than on Structural Data, Pricing Strategies and Other Standard Considerations.