Section 92 of the Competition Act empowers the Competition Tribunal to dissolve a completed merger, order assets or shares sold, or stop a proposed one, on application by the Commissioner. No dollar figure appears in the provision. Notification under Part IX decides whether you must file before closing. It does not decide whether a merger can be reviewed.
Key takeaways
SECTION 01 OF 09
The provision turns on a finding, not on a filing. Section 92(1) applies “Where, on application by the Commissioner, the Tribunal finds that a merger or proposed merger prevents or lessens, or is likely to prevent or lessen, competition substantially”. Since June 2024 the harm can also be to competition for “a product, including labour”.
The remedies are structural. On a completed merger the Tribunal may order any party “to dissolve the merger in such manner as the Tribunal directs” or to sell designated assets or shares, now expressly “in order to restore competition to the level that would have prevailed but for the merger”. On a proposed merger it may order a person “not to proceed with the merger”, or with part of it.
Only the Commissioner may start it. The private-access route in section 103.1 is confined to applications “under section 74.1, 75, 76, 77, 79 or 90.1”; section 92 is absent, so a competitor cannot bring your merger to the Tribunal itself.
SECTION 02 OF 09
Section 91 defines it, for ss.92 to 100, as “the acquisition or establishment… whether by purchase or lease of shares or assets, by amalgamation or by combination or otherwise, of control over or significant interest in the whole or a part of a business of a competitor, supplier, customer or other person”. Nothing in it refers to price or size.
Control is one trigger; the undefined “significant interest” is the other. The Bureau’s Merger Enforcement Guidelines give its reading: “Share acquisitions (whether or not they are notifiable) fall within the scope of section 91 when the acquirer obtains the ability to materially influence the economic behaviour of a business”. That is the Bureau’s position, not the law: the guidelines are dated 2011, with replacements consulted on to February 2026.
SECTION 03 OF 09
The Bureau says so directly: “the Commissioner of Competition may review any merger or acquisition, regardless of size, to protect and promote competition”, and “Mergers that are not subject to mandatory pre-merger notification, may also raise competition concerns and may be investigated by us.”
Part IX does something narrower. Section 114 requires notice before completing a transaction in the prescribed circumstances; the thresholds are covered in when a business sale becomes a notifiable transaction. Being under them settles your filing duty, nothing else. Below them the Bureau says “we encourage the merging parties to voluntarily contact us before closing”, and its process guidelines describe using timing agreements “where a transaction is not subject to the pre-merger notification requirements under Part IX of the Act”.
SECTION 04 OF 09
The Act used to push the other way. Former section 92(2) read: “the Tribunal shall not find that a merger… prevents or lessens, or is likely to prevent or lessen, competition substantially solely on the basis of evidence of concentration or market share.” Structure alone could not carry the case.
The replacement inverts it. Current section 92(2) provides that on a finding of a significant increase in concentration or market share “the Tribunal shall also find that the merger or proposed merger prevents or lessens, or is likely to prevent or lessen, competition substantially, unless the contrary is proved on a balance of probabilities by the parties”. Subsection (3) fixes the trigger: “the concentration index increases or is likely to increase by more than 100” and either that index exceeds 1,800 or the parties’ share is “more than 30%”.
The Bureau’s guide to the June 2024 amendments calls it “Creating a presumption that a merger is anti-competitive if it significantly increases concentration or market share”. The old subsection survives only for deals notified, or substantially completed, before the change — section 268 of the amending Act.
SECTION 05 OF 09
Section 93 is permissive: “the Tribunal may have regard to the following factors”. The older ones are commercial — foreign competition, “whether the business, or a part of the business, of a party to the merger or proposed merger has failed or is likely to fail”, substitutes, barriers to entry, and “the removal of a vigorous and effective competitor”.
The 2022 and 2024 amendments added five more: “network effects within a market”; whether the merger “would contribute to the entrenchment of the market position of leading incumbents”; “price or non-price competition, including quality, choice or consumer privacy”; the change in concentration or market share; and “express or tacit coordination between competitors in a market”. Paragraph (h) admits any other relevant factor.
SECTION 06 OF 09
Canada long had a merger defence no other major jurisdiction offered. The repealed section 96(1) barred an order under section 92 where the merger “has brought about or is likely to bring about gains in efficiency that will be greater than, and will offset, the effects of any prevention or lessening of competition”.
It was repealed outright, not narrowed. Section 96 now reads “Repealed, 2023, c. 31, s. 10”; s.10 of the Affordable Housing and Groceries Act, assented 15 December 2023, says “Section 96 of the Act is repealed.”
One carve-out survives. Section 12 of that Act keeps the old ss.92 and 96 alive for “a proposed transaction notified under section 114 of that Act before that day or to a merger that has been substantially completed before that day”. The Bureau’s guide to the December 2023 amendments dates it: the exception still reaches transactions notified “before December 15, 2023”. For anything since, efficiencies are argument, not a defence.
SECTION 07 OF 09
Section 97 bars an application under section 92 “in respect of a merger that was the subject of a request for a certificate under section 102 or a notification under section 114, more than one year after the merger has been substantially completed”, and “in respect of any other merger, more than three years after the merger has been substantially completed”.
The three-year branch is new. The previous version read, in full: “No application may be made under section 92 in respect of a merger more than one year after the merger has been substantially completed.” The Bureau puts it operationally: “When a merger was not the subject of a pre-merger notification or a request for an Advance Ruling Certificate (ARC), we may challenge it for up to three years after closing.”
The trade is written into the statute: telling the Bureau shortens exposure to twelve months; staying quiet leaves three years running. The clock starts at substantial completion — a term the Act does not define, and for which I found no authoritative definition.
SECTION 08 OF 09
The exceptions are specific and none is about size. Section 94 removes the power for financial-institution mergers certified by the Minister of Finance as being in the public interest, and for two Canada Transportation Act routes. Section 95 exempts genuine research-and-development joint ventures on five cumulative conditions, and section 98 blocks an application built on facts already used for a conspiracy prosecution or an abuse-of-dominance order.
Most merger law is transacted, not tried. Section 102 lets the Commissioner certify that he “would not have sufficient grounds on which to apply to the Tribunal under section 92” — which also puts the merger on the one-year branch. Section 105 consent agreements must be “based on terms that could be the subject of an order of the Tribunal” and, registered, have the force of one. The Bureau reported that “Average non-complex reviews lasted 10.69 days, while the average complex review lasted 44.46 days.”
SECTION 09 OF 09
The realistic exposure is not a national deal. It is a buyer taking out a direct competitor in a concentrated local market, far below any threshold, with three years of section 97 time running. Treadstone Law, on Competition Act clearance: “If your transaction consolidates a regional market, the fact that you did not have to file does not mean the file is closed.”
That converts into drafting. Where the overlap is real, clearance belongs in the agreement as a condition with an outside date and an agreed effort standard — Treadstone Law on regulatory approval as a closing condition and on insisting on approval before closing. What a competitor learns in diligence is a separate, earlier problem: selling to a competitor.
Three boundaries. This is federal law, uniform across Canada; no province runs a merger-review regime. Foreign ownership sits on a separate track under the Investment Canada Act, where national security review has no monetary threshold at all. Nothing here predicts an outcome: these provisions say what may be done, and by when. And this page cites no Tribunal or court decision, because Tribunal judgments are not retrievable from a source I could read.
No. The Competition Bureau may review any merger or acquisition regardless of size, and notification under Part IX only decides whether a filing is required before closing — it does not decide whether the transaction can be reviewed. A merger that was never notified can still be challenged for up to three years after closing, against one year for a merger that was.
Not necessarily. The Act defines a merger broadly enough to reach the acquisition of a significant interest, not just control, and the Competition Bureau’s own guidelines treat a share acquisition as falling within scope once the acquirer can materially influence the target’s economic behaviour — whether or not the deal was notifiable.
Not for a transaction happening now. The efficiencies defence was repealed outright in December 2023, not narrowed, and survives only for a transaction notified or substantially completed before that date. For anything since, efficiency gains are an argument to make informally, not a statutory defence to a Tribunal order.
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