14 | REGULATION Lexpert Special Edition
Finnerty, Pat C.
Blake, Cassels &
Graydon LLP
(403) 260-9608
pcf@blakes.com
Mr. Finnerty's emphasis
is on domestic and
cross-border M&A,
corporate transactions,
public off erings, private
placements and special
committees. He has
extensive experience
in the structuring and
fi nancing of oil sands
projects and acquisitions.
Fraiberg, Jeremy D.
Osler, Hoskin &
Harcourt LLP
(416) 862-6505
jfraiberg@osler.com
Mr. Fraiberg, Co-chair
of the Mining Group,
practises corporate and
securities law with an
emphasis on M&A
and corporate fi nance.
He acts for public and
private companies,
private-equity funds and
investment banks on a
range of transactions.
Fung, William
Blake, Cassels &
Graydon LLP
(416) 863-2356
william.fung@blakes.com
Mr. Fung's practice focuses
on corporate fi nance &
public M&A deals, with
expertise on R EITs &
income funds. His recent
R EIT experience includes
the Choice Properties
R EIT & American Hotel
R EIT LP off erings & the
H&R R EIT purchase
of Primaris R EIT.
Forestell, QC,
Peter R.
Cox & Palmer
(506) 633-2715
pforestell@
coxandpalmer.com
Mr. Forestell advises major
Canadian, international
and provincial businesses
on corporate commercial,
IP & technology, real
estate, and securities
and corporate fi nance
matters. His clients also
include utilities and
fi nancial institutions.
Fraser, Jean M.
Osler, Hoskin &
Harcourt LLP
(416) 862-6537
jfraser@osler.com
Ms. Fraser advises boards
and senior management
of public and private
companies, principally
on complex governance,
M&A and corporate
fi nance matters. She has
been lead counsel on
many of Canada's most
signifi cant transactions.
Gamble, Ian J.
orsteinssons LLP
(604) 602-4290
gamble@thor.ca
Mr. Gamble's tax practice
focuses on corporate-
related matters in the
telecom, real estate, mining,
and oil and gas industries.
He taught at UBC's law
faculty, and speaks and
writes regularly. He is
the author of Taxation
of Canadian Mining.
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uncertainty. And the more regulatory
uncertainty there is, the less deal certainty
there is.
"Sellers," Pressman continues, "want to
know a deal is going to close. When regu-
latory uncertainty is injected into the deal
calculus, it presents a mitigating factor on
deal volume."
While other factors are at play in the
decline of Canadian M&A activity in
2013, there's evidence the current Ca-
nadian regulatory environment is hav-
ing a dampening eff ect, especially when
it comes to hostile take-overs. It all has
business leaders rubbing their temples as
they try to grapple with sometimes oner-
ous, and sometimes vague, regulatory
rules or mandates.
Transactions in the mining
and energy sectors – the two
biggest drivers of M&A in
this country – have declined
in Canada over the past four
years. Canadian deal volume
overall in all sectors was the
slowest since 2009, according
to PwC. e Q4 2013 aggre-
gate value of deals was 26 per
cent lower than Q4 2012.
e stopped or, at least so
far stumped, deals attributed
to regulatory hurdles in Can-
ada last year alone includes,
among others, Telus's $380 million bid
for Mobilicity last May, shot down by
the federal government over concerns
about reduced competition; the CRTC's
belated approval of the Bell Canada En-
terprises' $3.2-billion acquisition of As-
tral Media, but only a er forcing BCE
to invest in new Canadian programming
and sell off more than a dozen services;
and the feds' rejection of Egypt's Accelero
Capital Holdings's $520-million bid to
buy MTS Allstream, a division of Mani-
toba Telecom Services, over unspecifi ed
national security concerns. In the context
of Canadian M&A history, "that's quite a
list," says Pressman.
e two most critical regulatory ele-
ments giving headaches to dealmakers
are changes announced in December
2012 to State-Owned Enterprise (SOE)
guidelines under the Investment Canada
Act (ICA) and, before that, changes to
Competition Bureau reviews under the
Competition Act.
"I would say that a key milestone event,
which altered the balance of power be-
tween transacting parties and the Com-
petition Bureau, occurred in 2009," says
Paul Collins, who heads Stikeman Elliott
LLP's Competition and Foreign Invest-
ment Group in Toronto.
at year the Bureau introduced a
toothier formal two-stage process for
reviewing mergers and acquisitions that
might erode competition in the country.
Prior to the changes the Bureau had to
obtain an injunction from the Compe-
tition Tribunal – a special tribunal that
deals with matters under the Competition
Act – to forestall a possible anti-competi-
tive deal. " at could be an arduous task
for the Bureau," explains Collins, "espe-
cially if they were met with quite aggres-
sive parties."
Now, since 2009, if the Bureau has
concerns a proposed deal may jeopardize
competition, it can issue a Supplemen-
tary Information Request (SIR) request-
ing more information about the transac-
tion. at triggers a second 30-day wait-
"SELLERS WANT TO KNOW
A DEAL IS GOING TO
CLOSE. WHEN REGULATORY
UNCERTAINTY IS INJECTED
INTO THE DEAL CALCULUS,
IT PRESENTS A MITIGATING
FACTOR ON DEAL VOLUME."
– Emmanuel Pressman,
Osler, Hoskin & Harcourt LLP
