Madam Chair, the efficiencies exception is set out in section 96 of the Competition Act. It's available for use on any merger in Canada, and effectively it says that where efficiency gains are likely to be brought about by the merger and are greater than and offset the anti-competitive effects, that will carry the day, and even if there is a finding of substantial lessening and prevention of competition, the merger will be allowed to proceed.
That is in the Competition Act today. My job, which I took an oath to do, is to administer and enforce the act to the best of my ability, so when it comes to the efficiency exception, it's something that does come into play.
The onus, I should say, is on the parties to prove the efficiencies. There are five layers they have to go through to establish what we call “cognizable efficiencies”. They either have to prove there are those, at the Competition Tribunal on a balance of probabilities, or they can advance the efficiencies exception with the bureau—and I'm talking generally here—in connection with our merger review.
We have been very clear lately—and I have been very clear—that this is a very serious exercise of enforcement discretion to approve an otherwise anti-competitive merger based on the efficiencies exception, so we have made it very clear in a model timing agreement to parties that if they are going to rely on the efficiencies exception, they are going to have to commit to providing the bureau with ample time, reasonable time, to thoroughly scrutinize the efficiencies they are advancing and to cross-examine under oath representatives of the merging parties to really dig down on those efficiencies. However, it is a reality in Canada's Competition Act, and Canada is really the only country that has this particular specific provision that allows an otherwise anti-competitive merger to go forward based on efficiencies.