Bill C-59, as drafted, obviously did not set out a statutory presumption for unlawfulness. Rather, what the bill proposes to do is to essentially repeal the bar against the tribunal issuing a merger remedy solely on the basis of evidence of concentration of market share.
The government has proposed to make a significant move from the current state of affairs, in which the tribunal cannot consider market shares as a basis for decision-making, to move towards a scenario in which, in fact, market shares can be used as an approach, which again eases the enforcement burden.
Additionally, the tribunal is expressly permitted to take into account any effect from the change in concentration of market share that the merger or proposed merger has brought about or is likely to bring about when determining the competitive effects.
Our understanding of NDP-13 is that it would further move the markers of the goalposts from a situation currently in which you cannot consider market shares to a situation in which, in fact, market shares would become a very critical consideration and would create a rebuttable presumption. In other words, it's another area among many that we've talked about today in which the burden of proof would be reversed. It would no longer be incumbent on the competition commissioner to make the case. Rather, the merging parties now would have to prove that it is not anti-competitive to move forward.