Canadian and international corporations and foreign law firms frequently seek the Group's counsel on high-profile domestic and international mergers in which coordinated resolution of regulatory issues is critical. When corporations find themselves subject to proceedings under the Competition Act, either before the courts or the Competition Tribunal, we have extensive experience and expertise to effectively represent them. In criminal and class and other private actions, the Group frequently represents Canadian, American, European and Asian corporations. Where appropriate, advantageous settlements are negotiated and implemented on a nationwide basis.

The Group's extensive experience as counsel on major multinational transactions allows members to work closely and effectively with M&A attorneys in the Canadian, European, U.S. and Pacific Rim offices of Stikeman Elliott, and with colleagues in leading U.S., European and Asian law firms.

Competition Bureau and Investment Canada Relations - Mergers and Much More

As the only major Canadian competition law practice with a strong presence in Ottawa, Stikeman Elliott maintains a healthy relationship with key players in the Government of Canada. On an ongoing basis, the group deals with officials of the Competition Bureau, Investment Canada, the Department of Finance, the Department of Justice, Transport Canada and other important government departments and agencies, such that regulatory strategies are seamlessly integrated. Consistent with their active participation in legal and policy development, members of our Group are regularly consulted on amendments to the Competition Act as well as policy initiatives of the Competition Bureau (e.g., draft enforcement guidelines).

Recent competition and foreign investment experience

• Ontario Teachers' Pension Plan in the $1.32 billion sale of a majority stake in Maple Leaf Sports and Entertainment to Rogers Communications and BCE Inc.
• Motorola Mobility Holdings, Inc. as Canadian counsel in respect of its proposed acquisition by Google Inc. for approximately US$12.5 billion.
• Vector Aerospace Corporation in its C$625 million sale of its issued and outstanding common shares to Eurocopter Holding, a subsidiary of EADS, by way of a take-over bid.
• Johnson & Johnson as Canadian counsel in its acquisition of Synthes Inc. for US$21.3 billion.
• Canadian Tire Corporation Limited, as competition counsel, in its C$771 million acquisition of all of the outstanding shares of Forzani Group Ltd.
• Potash Corporation of Saskatchewan Inc. in its defence of BHP Billiton Ltd.'s US$38.6 billion unsolicited take-over bid, with the bid being subsequently withdrawn after the historic decision of Investment Canada to reject the proposal. Winner of IFLR 2011 award for Canadian Law Firm of the Year for its work on this and other transactions.
• United Airlines, as Canadian counsel, in an all-stock merger of equals agreement with Continental Airlines for a combined equity value of over US$8 billion. Winner of GCR 2011 award for " M&A Transaction of the Year: Americas"

Lawson A.W. Hunter, Q.C., one of Canada's foremost experts on competition and regulatory matters and recently noted by GCR as "one of the pre-eminent names on the Canadian antitrust scene," is head of the Competition and Foreign Investment Group. Mr. Hunter recently returned to Stikeman Elliott as Counsel after five years as Executive Vice President and Chief Corporate Officer at BCE Inc. His service at BCE followed ten years as head of Stikeman Elliott's Competition and Foreign Investment Group. Mr. Hunter also spent a number of years in the federal public service, during which he led Canada's competition regulator and was primarily responsible for the drafting of the Competition Act. Mr. Hunter advises a wide variety of Canadian and multinational corporations on all aspects of federal regulatory law and policy, including competition and foreign investment legislation issues. He is particularly noted for his experience as an advisor on the regulatory aspects of mergers and acquisitions. Most recently, Mr. Hunter played an integral role with Potash Corporation of Saskatchewan Inc. in its defence of BHP Billiton's unsolicited take-over bid. Mr. Hunter's experience in Investment Canada and government relations played an integral role with PotashCorp in its defence.

Group members Shawn Neylan, Susan Hutton and Jeffrey Brown have combined experience that spans many years and includes advising national and international clients on a full range of competition and foreign investment law issues, with a focus on complex multi-jurisdictional transactions, including leading regulatory teams that secure approvals under the Competition Act and the Investment Review Act. They also provide competition compliance advice to businesses in relation to both unilateral and collaborative conduct. They have been recognized repeatedly as leading lawyers in various national and international publications and have written and spoken extensively on competition and foreign investment law issues.

Keeping on top of developments in Ottawa helps us ensure that merger and acquisition matters pursued by our clients are efficiently completed on the terms negotiated. We work diligently to minimize the risk of regulatory interference by the Commissioner of Competition and other Government agencies in transactions involving Canadian businesses, and advise leading Canadian businesses with respect to ongoing Competition Bureau and government relations. In particular, we:  

• Advise generally on the competition law governing mergers and acquisitions
• Provide an objective assessment of the likelihood that a proposed acquisition would lead to intervention by the Commissioner
• Prepare pre-merger notification materials and/or apply to the Commissioner for an advance ruling certificate or advisory opinion in respect of a proposed transaction, where appropriate
• Structure transactions so as to eliminate or minimize the risks of challenge by the Commissioner
• Liaise with the Competition Bureau and Investment Canada to enable clients to complete their transactions in a timely manner
• Advise clients in connection with investigations initiated by the Commissioner, whether civil or criminal in nature
• Advise clients in connection with search warrants or other formal inquiry procedures initiated by the Commissioner
• Assist clients in lodging complaints with the Competition Bureau
• Advise generally with respect to the Commissioner's or Investment Canada's position on or interpretation of various issues of importance to clients

Marketing, Advertising and Compliance

Competition law is complex and constantly evolving, and business practices that appear innocuous to clients may in fact contravene the Competition Act. The Group provides ongoing Competition Act compliance advice to various Fortune 500 companies on many marketing practices, such as advertising, distribution strategies and pricing strategies. Stikeman Elliott's experienced competition counsel can help companies avoid unwelcome surprises, including Bureau investigations and civil or criminal actions, by:

• Conducting a competition law audit to identify and report on any aspects of a client's procedures or policies that raise compliance issues;
• Designing, in collaboration with the client's operations personnel, a comprehensive compliance program;
• Conducting seminars to educate staff on compliance pitfalls common in their industry; and
• Advising with respect to document management (i.e., creation and retention).

Competition Litigation - Before the Courts and the Competition Tribunal

Competition litigation is an increasingly active and complex business reality in Canada. The recent amendments to the Canadian Competition Act further expand the range of conduct and the seriousness of the consequences to parties in civil proceedings, including cases before the Competition Tribunal and in court. Stikeman Elliott's competition litigators have the experience, knowledge, judgment and skills to represent our clients effectively in this very dynamic and strategically important area.

Recent competition litigation experience:

• 2038724 Ontario Limited et al. v. Gordon Food Services et al. (2011) Ontario (a franchise class action brought by franchisees alleging anti-competitive conduct with respect to distribution arrangements in place between Quiznos as franchisor and GFS as distributor.).
• Commissioner of Competition v. Air Canada et al. (2011) Ontario (acting for Air Canada in its response to the Commissioner of Competition's application to the Competition Tribunal opposing the proposed Canada-U.S. cross-border joint venture with United Continental Holdings. The case is the first challenge under the civil competitor collaboration provisions added to the Competition Act in the 2009 amendments.).
• Commissioner of Competition v. Canadian Real Estate Association Ontario (acting for CREA in a case alleging abuse of dominance in the market for residential real estate brokerage services).

Stikeman Elliott's competition litigation practice is led by Katherine Kay, one of Canada's premier competition litigators. Chambers Global 2011 recently described Katherine as "virtually insurmountable in the area of competition litigation" and quoted client feedback that "she is always on top of her game - outstanding expertise, energetic, insightful and very practical." She is described in Global Competition Review's Country Survey: Canada 2010 as "arguably the best competition litigator Canada has to offer." Katherine is lead counsel on multiple antitrust class actions commenced in Canada, high profile Competition Tribunal proceedings and several cartel cases. Recently, Ms. Kay represented Canadian Real Estate Association in its high-profile abuse of dominance case before the Competition Tribunal concerning residential real estate brokerage services.

The Group's competition litigators, who include Eliot Kolers and Danielle Royal, have extensive experience and the strategic judgment and outstanding advocacy skills to secure the best possible results for our clients. They understand the ins and outs of Canadian antitrust law and the practice and approach of the regulatory authorities and who are well-known to the Competition Tribunal and courts at all levels and in all jurisdictions. Our litigators work very closely with our colleagues on the solicitors' side of Canadian competition practice, and members of our Group draw on the experience and judgment of the litigation team on a daily basis.

The competition litigators represent national and international clients in a variety of matters, including:

• Criminal investigations and proceedings, involving corporations as well as directors, officers and employees, including immunity and leniency applications
• Defending class actions, which are typically commenced on a national basis mirroring similar U.S. actions and often following Canadian criminal investigations
• Representing clients who are a merging party, or who oppose a particular merger, both in dealing with the Competition Bureau and then before the Competition Tribunal, on a contested or consent basis
• Defending clients in contested proceedings before the Competition Tribunal in which allegations of anticompetitive conduct or violations of consumer protection measures in the Competition Act are made by the Commissioner of Competition or, under recent amendments to the Competition Act, by private individuals in certain areas
• Making or responding to complaints to the Competition Bureau regarding anti-competitive behaviour in a particular marketplace Commencing or defending private actions or applications brought under the Competition Act and under the common law in which anti-competitive conduct is alleged

Global Rankings & Achievements

Consistently high rankings are a clear reflection of the Group's well earned reputation in major cross-border and domestic legal work.

• GCR 100 (2011, 11th edition) - a listing of the leading global competition law practices by the Global Competition Review.
• GCR Country Survey: Canada (2010) - ranked as an Elite competition practice in Canada and noted by competitors that the Group's practice and ability are "among the strongest in the country" and the team is "on top of its game."
• Chambers Global 2011: The World's Leading Lawyers for Business - ranked as among the best law firms in competition/antitrust in Canada by Chambers and Partners and noted in a client interview as being an "excellent firm with an excellent grasp on the issues surrounding the competition/antitrust area. A key player in the market."

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Recent Group Activities

Competition partner participates in ABA conference
Katherine Kay spoke on "Canadian Cartel Law: Canada Raises the Stakes" at the International Cartel Workshop presented by the ABA Section of Antitrust Law and the International Bar Association, held February 1-3, 2012, in Vancouver.

Competition partner quoted in Corporate Counsel Magazine
Shawn Neylan advises foreign investors to develop communications strategy and build relationships with government leaders to avoid having transactions caught in political crossfire in Corporate Counsel Magazine's article, "The Changing Relationship of Canadian Business and Foreign Investors".

Competition lawyers host breakfast seminar
Lawson Hunter, Katherine Kay and Susan Hutton are hosting "Communications with Your Competitors and Trade Associations: What You Don't Know Can Hurt You", on Thursday, February 16, 2012 in Ottawa.

Competition article published in Law Business Research guide
Competition litigators Eliot Kolers and Danielle Royal co-authored the "Canada" chapter in The Private Competition Enforcement Review, published by Law Business Research Ltd., (London: 2011), discussing private antitrust litigation activity in Canada.

OTPP and Maple Leaf Sports and Entertainment
The firm represents Ontario Teachers' Pension Plan in the $1.32 billion sale of a majority stake in Maple Leaf Sports and Entertainment to Rogers Communications and BCE Inc. Competition team: Lawson Hunter and Shawn Neylan.

Competition lawyer appointed to CBA Section Executive
The National Competition Law Section of the CBA (Canada Bar Association) recently appointed Susan Hutton, a member of the Competition & Foreign Investment Group in Ottawa, as its new Secretary/Treasurer. This appointment is the first in a lock-step series of Executive roles culminating, in the 4th year, in Section Chair. Susan will also continue to be involved in the re-launch of the Canadian Competition Record.

Air Canada and United Continential - Commissioner of Competition
The firm represents Air Canada in its response to the Commissioner of Competition's application to the Competition Tribunal opposing the proposed Canada-U.S. cross-border joint venture with United Continental Holdings. The case is the first challenge under the civil competitor collaboration provisions added to the Competition Act in the 2009 amendments.
Legal team: Katherine Kay, Eliot Kolers, Mark Walli, Jeffrey Brown, Ashley Weber

Corporate lawyers participate in M&A publication
Richard E. Clark and Curtis A. Cusinato co-authored the M&A in Canada chapter, and Susan Hutton authored the Merger Control in Canada chapter of Getting the Deal Through - Mergers & Acquisitions 2011. The publication offers international analysis in key areas of M&A law and policy in 60 jurisdicions worldwide. Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Mergers & Acquisitions 2011 (published in June 2011; contributing editor: Casey Cogut of Simpson Thacher & Bartlett LLP ). For further information please visit www.GettingTheDealThrough.com.

Competition lawyers contribute article to ABA newsletter
Lawson Hunter and Susan M. Hutton contributed an article on Canada's foreign investment regime titled "Foreign Investment Review in Canada" that was recently published in the ABA Business Law Section, Business Law Today.

Head of Group granted honorary doctor of law degree
Lawson Hunter, the head of the Competition & Foreign Investment Group, was recently recognized as an outstanding individual and granted an Honorary Doctor of Laws Degree from the University of New Brunswick .Mr. Hunter, a native of Florenceville, N.B., has long-standing ties to UNB. He was the president of the UNB Student's Representative Council and valedictorian of his class. He has been a strong proponent of UNB fundraising as a member and patron of the Heritage Campaign Committee as well as the Forging Our Futures Campaign. Mr. Hunter was granted the honorary degree during UNB's spring graduation ceremonies on May 19.

Now Available - Chapter on Intellectual Property & Antitrust in Canada
Susan Hutton and Alexandra Stockwell recently co-authored the Canada chapter on Intellectual Property & Antitrust for Getting The Deal Through 2011, which discusses regulation concerning IP and antitrust within Canadian jurisdictions. Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Intellectual Property & Antitrust 2011, (published in March 2011; contributing editor: Susan M Hutton). For further information please visit: www.gettingthedealthrough.com.

Now Available - Chapter on Dominance in Canada
Susan Hutton recently authored the Canada chapter on Dominance for Getting The Deal Through 2011, which discusses the regulation of dominant firm conduct. Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through -  Dominance 2011, (published in January 2011; consulting editors: Thomas Janssens and Thomas Wessely). For further information please visit www.GettingTheDealThrough.com.

Now Available - 2011 Competition Act and Commentary
Members of the Competition & Foreign Investment Group have authored commentaries for Butterworths Competition Act & Commentary, 2011 edition, which captures recent developments in Canadian competition law. This concise guide to competition law in Canada provides expert insights insights into all aspects of Canadian competition law as well as Canada's foreign investment review legislation, the Investment Canada Act, including amendments effected by the implementation of Bill C-10 (Budget Implementation Act, 2009), which resulted in the most significant amendments to Canada's competition and foreign investment regimes in more than 20 years. Click here for more information and/or to order the book.

Competition & Foreign Investment Group ranked in "Elite" category on GCR survey
Stikeman Elliott's Competition & Foreign Investment Group was recently ranked in Global Competition Review's Country Survey: Canada as an "Elite" competition law practice. The survey noted that the Group's competitors say the Group's practice and ability are "among the strongest in the country" and the team is "on top of its game."  

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Media Mentions

Below are media excerpts, which feature members of the Competition Group as they are referred to or quoted on various topics surrounding Canadian competition/antitrust law.

• Competition lawyer quoted in Financial Post article
  Shawn C.D. Neylan was quoted on the Investment Canada Act and its impact on the foreign investment review process in the recent Financial Post article, "On Ottawa watch."
• Stikeman Elliott competition counsel in Canadian Tire/Forzani
  The firm is acting as competition counsel for Canadian Tire Corporation Limited in its acquisition of all of the outstanding shares of Forzani Group Ltd. for C$771 million in cash. Legal team: Lawson Hunter, Jeffrey Brown, Paul Beaudry and Alexandra Stockwell. Click to view recent media mentions from Bloomberg, Globe & Mail and the Am Law Daily.
• Competition lawyer discusses PetroChina decision to buy stake in shale gas field
  Shawn C.D. Neylan gives his opinion on PetroChina's decision to buy 50 percent of the shale gas field that is owned by EnCana in the GCR article "China sets sights on Canadian shale gas"  
• Ottawa lawyer on BNN's Headline 
  Lawson Hunter appeared on Business News Network's Headline session "Communications & Media: Still in Need of Protection?"discussing Canada's media and communications sector and protection by the federal government.  
• Competition lawyer discusses convergence between U.S./Canada antitrust laws
  Jeffrey Brown discusses in the article "Canada - Law Firms - Antitrust Law: At Home and Across The Border", The Metropolitan Corporate Counsel, how despite increased coordination we will likely never see complete convergence between U.S. and Canadian competition laws. 

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