Competition Bureau opens consultation on revised immunity and leniency programs

Last month, the Competition Bureau issued its revised immunity and leniency programs for public consultation (open until June 29), an important development as it represents the culmination of a process that began in 2015.

An initial draft of the immunity program, published last fall, was subject to public consultation and the Bureau made further revisions which aim, among other things, to clarify the Bureau’s approach.

Background

The immunity and leniency programs’ purpose is to uncover and stop criminal anti-competitive activity prohibited by the Competition Act. In fact, the programs have been described as one of the Bureau’s best tools to deter and stop criminal anti-competitive agreements.

The Bureau is responsible for investigating wrongdoing and recommending immunity and leniency to the Public Prosecution Service of Canada (PPSC). PPSC is then responsible for deciding if charges should proceed and who should be charged. The decision to grant immunity or leniency ultimately rests with PPSC counsel.

Immunity and leniency are extraordinary grants. The Crown can effectively forego prosecution or allow recommended sanctions to be reduced. The rationale for doing so lies in the public interest: offering immunity from prosecution can help the Bureau and PPSC with their investigations and prosecutions of other offenders participating in serious criminal activity.

The proposed changes

One of the main changes to the immunity program is the proposed increase to the number of steps required to obtain immunity. Currently, there are three steps: (1) marker, (2) proffer and (3) immunity agreement.

An additional stage is being proposed by the revised draft immunity program as a new third step – the interim grant of immunity, which is intended to facilitate faster access to documents and witnesses. This step was proposed in the initial 2017 public consultation, but came with concerns it would introduce uncertainties to the process, notably lengthening the timeline to finalize an immunity agreement.

Another change affects the proffer process. Usually, immunity applicants provide proffers verbally. Notes are taken, but no audio, video, or transcript recordings are made, minimizing the creation of records that could be subject to disclosure. The initial 2017 public consultation contemplated audio recordings, but did not refer to a paperless process. The revised version would permit a paperless process and it indicates subsequent witness interviews following the immunity grant may be recorded, while also addressing certain concerns brought forward.

A third change to the immunity program deals with privilege claims. The 2018 revised version does not contain the same regime as the initial 2017 public consultation, which had a detailed protocol for privilege claims and due process concerns. It now provides for an independent council to be used when agreed upon by the parties to resolve a disagreement regarding privilege.

The leniency program has also seen some changes since 2017. The 2018 revised version states that every leniency applicant may be entitled to (1) a cooperation credit of up to 50% and (2) an additional 10-20% credit for having an effective corporate compliance program in place. These credits would reduce the fine the party may otherwise face for committing a criminal offence under the Act.

Submissions

The consultation process ends on Friday, June 29.

Please contact our team at Norton Rose Fulbright Canada LLP to prepare submissions and advocate on your behalf to the Bureau.

The author would like to thank Justine Smith, articling student, for her assistance in preparing this legal update.

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Streamlining due diligence 101 – establish your virtual data room early

Whether you are gearing up for an acquisition or are in the early rounds of fundraising, one of the most valuable tools is often the most overlooked: the use of a Virtual Data Room (VDR). VDRs are not uncommon (gone are the days of physical data rooms) – rather, the planning of a VDR tends to be an after-thought. The pressure to create one from scratch, with a potential transaction looming, can be daunting. Regardless, whether dealing with a potential buyer or investor, a common expectation among the parties is to see the same types of documents when conducting due diligence. Establishing a well-organized and comprehensive VDR ahead of time is an invaluable way to ensure that future transactions are assessed on their merits, while promoting transparency in the eyes of the counterparty.

The due diligence process can be tedious and complex, but neglecting to organize the process can potentially be fatal to a transaction. VDRs are a great tool to streamline the process and can be created at any time. In fact, establishing the framework and structure ahead of time will allow your team to focus on more important issues as deadlines approach. Whether this is your first transaction or you are a seasoned veteran, the following are some key details to consider when establishing a VDR:

  1. Know your audience: What documents would you like to see if the situation were reversed? What are the areas of concern that an acquirer or investor has voiced during the negotiations? Flag documents and materials to populate your VDR that will address these issues head-on.
  2. Ask your advisors: Most legal or financial advisors will have been involved in transactions that are similar to what your company is dealing with. It may feel novel to you, but the majority of transactions follow a similar trajectory and a standard form checklist can be provided by your advisors to get things started off on the right path.
  3. Appreciate the nuances: Transactions can be similar but there are going to be specifics that are unique to your company. Identify these differences and address them in the materials you populate your VDR with. Tailor the information as necessary. Can sensitive information be redacted? Do all parties need access to certain documents? These are among the considerations to have in mind.
  4. Shop around: There are a number of VDR providers available and many of them have different functionalities or pricing structures. Canvas the market and pick the right provider for your specific transaction / budget.

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Private equity and Canadian partnerships: tax considerations

Canada continues to be an attractive market for private equity (“PE“) investors with recent transactions highlighting significant investments into Canadian real estate and energy infrastructure assets.

Partnerships (particularly, limited partnerships) continue to be a popular PE vehicle, providing a means of pooling and aggregating investment funds and allowing for income or losses to be “flowed-through” to its members for Canadian tax purposes, subject to certain exceptions.

However, the use of partnerships with non-resident investors in PE investments raises two particular issues.

Withholding Tax

Part XIII of the Income Tax Act (Canada) (the “Tax Act“), requires that every non-resident person pay an income tax of 25% on every amount that a person resident in Canada pays or credits to a non-resident person. For this purpose under paragraph 212(13.1)(b), a payee partnership, other than a “Canadian partnership”, is deemed to be a non-resident person. Looking at the definition of “Canadian partnership” in section 102, this requires all the members of the partnership to be resident in Canada[1]. As confirmed by the Canada Revenue Agency (the “CRA“), Part XIII may apply to the entirety of an amount paid to the partnership even where there is a single non-resident member[2].

PE funds involving multiple layers of ownership should therefore pay considerable attention to the residency status of both direct and indirect members. Even where the fund is controlled by a Canadian resident general partner, it will still not qualify the partnership as a “Canadian partnership.”

Where a PE fund has partnerships, trusts or other opaque entities as its members, it is not uncommon to seek further representation and warranties from that member as to the residency status of its ultimate beneficial owner(s) to ensure proper characterization.

Section 116

Disposition strategies should also consider the application of section 116 of the Tax Act.

Pursuant to that section, every non-resident person that disposes of “taxable Canadian property”[3] (“TCP“) is required to notify the CRA and obtain a “certificate of compliance”, in the absence of which a purchaser will be liable to collect and remit 25% of the purchase price to the CRA.

In the context of partnerships, the definition of TCP also includes an interest in a partnership where at any time during a 60-month period that ends at that time, more than 50% of the fair market value of that partnership interest was derived directly or indirectly from one or any combination of:

  1. real or immovable property situated in Canada;
  2. Canadian resource property;
  3. timber resource property;
  4. options in respect of, or interests in, or for civil rights in, property described in any of subparagraphs (i) to (iii) whether or not the property exists.

As a result of this rule, dispositions of the interest in the PE fund partnership could themselves be subject to s. 116 and Canadian tax.

Options for managing the characterization of PE partnership interests as TCP and section 116 requirements include grouping TCP and non-TCP assets together and keeping track of the proportionate value of TCP assets within the fund to keep TCP below 50%. Administratively, the CRA takes the view that this will require a determination of total gross assets that comprises real or immovable property without taking into account debts or other liabilities[4].

Finally, in considering disposition or exit strategies, treaty benefits should also be considered as certain non-resident investors may be exempt from Canadian tax where their partnership interest constitutes “treaty-protected property”[5]. However, considerable care should be taken before relying on this characterization, as not all tax treaties provide for the exemption of gains derived principally from immovable property[6]. Entitlement to treaty benefits may also require satisfying a comprehensive “limitation on benefit” provision or “principal purpose test” and the consideration of treaty shopping issues.

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[1] s.102(2) also provides a “look-through” rule where a partnership is a partner of another partnership.

[2] See: CRA View, 9716735 “Taxation of Non-Resident Partners.”

[3] See: s. 248 on “taxable Canadian property.”

[4] See: CRA View, 2012-0444091C6 “17 May 2012 IFA Conference Roundtable – Definition of taxable Canadian property.”

[5] Sections 116(5.01), (6) and (6.1).

[6] See: Canada-Luxembourg Tax Treaty and Canada-Netherlands Tax Treaty.

Brace yourselves, a market crash is coming – or is it?

Global M&A activity has been off to a record start this year. The overall volume has reached nearly $2 trillion as of May 21. While some may view this increasing trend with optimism, certain investors are skeptical of its longevity.

It has not gone unnoticed that the last couple of times global M&A volume reached similar levels was in 2000 and 2007 – periods where the market cycle peaked and was followed by a crash shortly thereafter. Business Insider recently noted a consistent factor between these periods is the “overexuberance being exhibited by investors.” The market activity experienced in the dotcom-era and debt and housing bubbles appear to be mimicked in the current market, which is experiencing historically low interest rates, and many on Wall Street forecast a downturn in the near future.

Nevertheless, it seems one group remains unconcerned: Canadian CEOs. A KPMG report revealed CEOs in Canada are more optimistic and confident about growth prospects when compared to their global peers. In fact, 82% of Canadian CEOs said they will certainly take part in an acquisition over the next three years, with over a third of those expected to have a “significant impact” on the overall organization.

Given that the Bank of Canada recently announced the overnight rate will remain unchanged at 1.25%, but warned that “higher interest rates will be warranted to keep inflation near target,” we will be keeping an eye on how Canadian CEOs and their companies’ M&A activity will react. This statement from the bank suggests an impending rate increase. Although it seems M&A activity has yet to react negatively to the last three increases, the rate was at a record low of 0.5% this time last year. Future increases may not be so easy to ignore. The bank’s next announcement is scheduled for July 11, 2018.[1]

We will have to wait and see if history repeats itself or if Canadian M&A will emerge unscathed.

[1] For further information on the effect of such increases, read our previous blog posts: Additional interest: M&A activity following the Bank of Canada’s interest rate increase and Overnight interest rate update: no change is good news for M&A activity,

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Buyer beware: sell-side termination fees are on the rise

M&A transactions typically involve costly and time-intensive processes, and for this reason parties often seek to limit completion risk by negotiating a termination fee. Indeed, the recent 2018 SRS Acquiom Deal Terms Study reveals that the use of termination fees in private M&A transactions doubled in 2017.

From 2012 to 2016, the use of termination fees remained relatively stable, with approximately 10% of private M&A deals including termination fees.[1] In 2017, however, the use of termination fees increased dramatically, with 21% of private M&A deals reportedly incorporating termination fees.[2]

Interestingly, the overall increase in the use of termination fees is attributable primarily to increased use of sell-side termination fees (fees a buyer agrees to pay in the event it terminates the deal). While use of buy-side termination fees increased from 2% of all deals in 2016 to 5% in 2017, this is less notable given that these particular fees has fluctuated between 2% and 5% since 2012.[3] The use of sell-side termination fees was similarly stable from 2012 to 2016, ranging from 4% to 7% of private M&A deals.[4] However, in 2017 the use of sell-side termination fees skyrocketed, with 14% of deals including such fees.[5]

The relatively stable use of buy-side termination fees indicates that acquirers continue to rely on termination fees to deter competing bids, but it appears this practice is not increasing to the same extent as the use of sell-side termination fees. Given this trend, acquirers should not be surprised to see more sell-side termination fees being implemented in private M&A deals.

The author would like to thank Brandon Schupp, Summer Law Student, for his assistance in preparing this legal update.

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[1] 2014 M&A Deal Terms Study, SRS Acquiom; 2016 M&A Deal Terms Study, SRS Acquiom; 2017 Deal Terms Study, SRS Acquiom.

[2] 2018 M&A Deal Terms Study, SRS Acquiom.

[3] 2014 M&A Deal Terms Study, SRS Acquiom; 2016 M&A Deal Terms Study, SRS Acquiom; 2017 Deal Terms Study, SRS Acquiom.

[4] 2014 M&A Deal Terms Study, SRS Acquiom; 2016 M&A Deal Terms Study, SRS Acquiom; 2017 Deal Terms Study, SRS Acquiom.

[5] 2018 M&A Deal Terms Study, SRS Acquiom.

The Competition Bureau is soliciting feedback from stakeholders on two new advocacy initiatives

The Competition Bureau recently issued a news release soliciting feedback from stakeholders regarding two of its newest advocacy initiatives:

  1. Opportunities where the Bureau can support increased competition through changes to regulations or policies; and
  2. Input on the Bureau’s draft Market Studies Information Bulletin.

Supporting Increased Competition

Using the Advocacy Suggestion Form, the Bureau is collecting perspectives on areas in which it could advocate for increased competition and innovation. Specifically, the form seeks input on sectors that should be examined, as well as the competitive issues or harms in the sectors. In investigating these two items, the Bureau is best able to act on inputs that address:

  • regulations or policies that make it difficult for businesses (including new or disruptive business models) to emerge or compete; and
  • factors that make it difficult for consumers to switch products or services, or to make informed choices.

Upon identifying barriers to competition, the Bureau can make recommendations to regulators or policymakers on how to reduce or remove these barriers to promote competition.

Market Studies Information Bulletin

Most competition issues directed to the Bureau’s attention are first evaluated as potential enforcement matters, specifically to determine whether they may contravene the Competition Act. Where there is no obvious violation of the Act, and yet impediments to competition appear to exist in a given sector, the Bureau may use a market study to examine those impediments.

The Bureau generally researches and evaluates several potential sectors before undertaking a market study. When possible subjects for a market study have been identified, the Bureau may consult with stakeholders to obtain additional views on the appropriateness of the market studies under consideration. At this stage, the Bureau will also conduct research to better understand the sectors being considered and any potential competition concerns. The Bulletin explains how market studies are selected and conducted as well as how confidential information obtained from participants is treated. Following the publication of a market study report, the Bureau may monitor actions by regulators, policymakers and other stakeholders to see whether changes (if any) are made in line with the Bureau’s recommendations, and the impact such changes appear to have on the sector.

Previous market studies have considered the following sectors: generic drugs (2007); self-regulated professions such as accountants, lawyers, optometrists, pharmacists and real estate agents (2007) followed by a post-study assessment (2011); beer (2013) and FinTech (2017).

Submissions

Comments on the Bulletin must be submitted to the Bureau by Friday, June 29, 2018. Please contact our team at Norton Rose Fulbright Canada LLP to prepare submissions and effectively advocate on your behalf to the Competition Bureau.

The author would like to thank Shan Arora, Articling Student, for his assistance in preparing this legal update.

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Liability caps around the world: a global comparison

It is common around the world for representations and warranties in private M&A transactions to survive for an agreed upon period of time after closing. During this survival period, the seller is faced with the risk that the purchaser may bring an action against it for breach of a representation or warranty. There are a number of ways sellers can mitigate this risk, including negotiating a cap on their maximum liability under the purchase and sale agreement. What is considered “market standard” in terms of the use and quantum of these liability caps differs in jurisdictions around the world.

In order to survey the market trends in this regard, we conducted a review of M&A deal studies prepared by Norton Rose Fulbright and studies by the American Bar Association which collectively covered private M&A transactions that closed in 2016 in the Asia-Pacific region (the APAC market)[1], private M&A deals completed in 2016 and the first half of 2017 in the United States[2], private M&A deals signed in 2015 and 2016 in Canada[3], and M&A deals signed or closed in 2012 and 2013 in certain European Union countries (the European market)[4] (collectively, the Deal Point Studies).

The Deal Point Studies indicate that 57% of Chinese sellers and 50% of Japanese sellers accepted no cap on their liability, and overall in the APAC market 34% of transactions had no liability cap at all. In contrast, sellers in Canada, the European market and the US rarely agreed to unlimited liability. Specifically, of the deals reviewed in the Deal Point Studies, only 8% of sellers in Canada, 4% of sellers in Europe and none of the sellers in the US agreed to uncapped liability. These statistics seem to suggest that many sellers in the APAC market either have less bargaining power than their counterparts in the other regions studied, or they do not view liability caps as a key issue in their negotiations (perhaps because of the greater proclivity for sellers in those regions to obtain representation and warranty insurance policies).

With respect to transactions that included a cap on the seller’s liability, the Deal Point Studies revealed the following statistics:

  • In the APAC region, the average cap on the seller’s liability for breach of representations and warranties ranged from a low of 15% of the purchase price in Japan to a high of 65% of the purchase price in Indonesia;
  • In Canada, the average cap on the seller’s liability equalled 44% of the purchase price;
  • In the EU, the average cap on the seller’s liability equalled 42% of the purchase price; and
  • In the US, the average cap on the seller’s liability equalled 12% of the purchase price.

Of particular interest are the low average caps in the US. This may be due to the litigious climate in that country, where sellers view a low cap on their liability as being of paramount importance. It may also suggest that the US is a “seller’s market” – where sellers tend to have greater bargaining power.

Regardless of the reason for the differences between the various jurisdictions, however, it is imperative to understand what is considered the “market standard” in terms of liability caps and other deal points when entering into M&A negotiations in an unfamiliar jurisdiction.

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[1] Private M&A Deal Points Asia-Pacific Study 2016, Norton Rose Fulbright.

[2] Private Target Mergers & Acquisitions Deal Points Study (Including Transactions Completed in 2016 and the first half of 2017), American Bar Association, A Project of the M&A Market Trends Subcommittee of the Mergers and Acquisitions Committee.

[3] Current Practice Trends in Canadian Private M&A Agreements, Practical Law Canada

[4] European M&A Deal Points Study 2015 (deals signed or closed in 2012 or 2013), American Bar Association, Business law Section, a Project of the Market Trends Subcommittee of the Mergers and Acquisitions Committee.

The Canadian hotel space: ripe for investment

The outlook for the Canadian Hotel segment is looking ripe for investment according to a recently released report from the CBRE. The CBRE Canada’s 2018 Hotels Outlook Report showed that there was strong operational performance which is expected to continue in this year.

The report indicated that hotel-investment volume reached $3.4 billion in 2017 and $4.1 billion in 2016. These years were marked by a higher volume of merger and acquisition deals which had not been a trend in this industry for quite some time. The healthy state of Canada’s hospitality segment is positively influenced by low-interest rates, lower Canadian dollar valuations, continued economic growth, increased business travel and a budding tourism industry. In 2018, it is also expected that there will be an influx of conference and convention activity in major metropolitan cities in Canada. As such, these factors indicate that the demand in the Canadian hospitality space is trending.

There are three main indicators of favourable investment conditions in the hospitality industry in Canada:

  • It is predicted that there will be positive operating fundamentals in each Canadian region with Central Canada forecasting to increase by 4.6% to $115, Western Canada forecasting to increase by 4.2% to $100, and Atlantic Canada forecasting to increase by 2.3% to $88.
  • There is a positive upward trend in profits. Overall, there is a 16% increase in profits across the Canadian market in 2017 which represents $14,300 in profits per room. Western Canada increased in profits by 7.3% to $16,100 per room. Central Canada increased by 9% to $15,700 per room, and Atlantic Canada increased by 4.9% to $10,800 per room. It is predicted that there will be continued growth in profits in 2018.
  • Hotel room demand is outpacing supply. There is a limited supply of hotel rooms in Canada’s major cities. For instance, Metro Vancouver was at 79% occupancy in 2017, and it is forecasted to reach around 80% in 2018. It is clear that more supply may be needed to satisfy a growing demand.

With these favourable indicators, it will not be a surprise if there will be more merger and acquisition activities in this upcoming year.

The author would like to thank Shirley Wong, Articling Student, for her assistance in preparing this legal update.

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Legal update: new European data privacy law comes into force on May 25, 2018

On May 25, 2018 the European Union’s General Data Protection Regulation (GDPR) will come into force. The GDPR will create new requirements for Canadian companies that handle the personal information of European individuals. The GDPR also allows for heavy penalties to be imposed on organizations that fail to comply with this new regulatory regime. Based on this, Canadian companies who are involved in M&A transactions should be sure to determine whether the GDPR applies to a target and carefully consider the risks associated with non-compliance.

The GDPR regulates the processing by an individual, a company or an organization of personal data relating to individuals in the EU. Similar to Canadian privacy law, “personal data” is constituted by any information that relates to an identified or identifiable living individual and “data processing” captures a wide range of manual and automatic operations performed on personal data. Importantly, the GDPR applies to activities that take place outside of the borders of the EU and also applies regardless of the size of the organization.

Given the broad scope of activity the GDPR captures, it is safe to assume that most Canadian businesses that sell to Europeans or have operations in Europe should obtain legal advice in order to determine whether the GDPR applies to them.

This is especially important when considering that organizations who are found to be non-compliant can face large fines of up to four per cent of their global revenue or €20 million, whichever is higher. The GDPR also gives individuals the right to seek compensation for damages caused by violations of the GDPR.

Given the magnitude of these penalties and the wide scope of organizations and activities that are caught by the GDPR, both potential targets and acquirers should be aware of the impact the GDPR could have once it is in force. Targets should conduct an analysis to determine which, if any, of their operations may be caught by the GDPR and document any compliance measures that are implemented. Acquirers, on the other hand, should familiarize themselves with the GDPR in order to put themselves in the best position to identify any possible issues with the GDPR in a transaction. For more on the due diligence process related to the GDPR, see our previous blog post on this topic.

In Canada, Norton Rose Fulbright recently rolled out an artificial intelligence legal chatbot called Parker for clients seeking to know if they are affected by GDPR. Parker uses natural language processing to answer a variety of questions businesses in Canada may have about GDPR.

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M&A activity in Canada’s upstream oil and gas sector remains slow in 2018

Following our update during the last quarter of 2016, M&A activity in Canada’s upstream oil and gas sector continued to decline in 2017 and has remained slow during the first quarter of 2018. Globally, there was a strong start to 2017 followed by a significant decline, in terms of both deal count and overall deal value, during the balance of 2017, with a notable increase in deal activity during the first quarter of 2018.

 According to Deloitte’s Oil & Gas Mergers and Acquisitions Report–Yearend 2017, after the increase in deal spend in Q4 2016 and Q1 2017, the rest of 2017 saw a significant decline in upstream M&A spend. Deloitte noted the following themes that emerged during the year: (1) continued portfolio optimization as larger exploration and production (E&P) companies divested non-core acreage to reduce debt levels and focus on core locations and assets, (2) consolidation through larger-scale deals to combine portfolios, and (3) a slowdown in deal activity in the Permian Basin.

 The total value of upstream deals worldwide reached USD 37 billion in the first quarter of 2018 according to Evaluate Energy’s recent report (Evaluate Energy’s Report), suggesting that confidence is returning to the E&P sector. Evaluate Energy’s Report indicated that the number of “significant deals” (i.e. deals with a value of USD 50 million or more) was its highest in the last quarter than any quarter since the initial oil price collapse in mid-2014. This uptick following a slow latter half of 2017 has been attributed to a higher average West Texas Intermediate (WTI) oil price and reduced price volatility. The average WTI oil price during the first quarter of 2018 was USD 62.81, representing the first time the average quarterly WTI price has exceeded USD 60 since the initial price collapse. Further, price volatility was its lowest during the first quarter 2018 than during any quarter since 2004. The industry expects to see continued oil price stability in 2018 given OPEC’s extension of its production cut to the end of the year.

While deal activity has been strong globally in Q1 2018, only one of the top ten upstream deals worldwide took place in Canada with Suncor Energy Inc.’s acquisition of Mocal Energy’s 5% interest in the Syncrude oilsands mining project for USD 750 million. During the same quarter last year, Canada saw USD 24.5 billion of oilsands deals but has only seen USD 1.5 billion during the first quarter of 2018. Deal activity in the United States has taken the lead with an aggregate of USD 18.7 billion in new deals in Q1 2018 representing $411 million more than all other countries combined.

As indicated in CanOils monthly reports for the first quarter of 2018, upstream M&A deal activity continues to fall in Canada as global benchmark oil prices continue to rise. Despite falling deal values, companies continue to list significant asset packages for sale, the majority of which have resulted from companies initiating strategic review processes. Another trend observed since the initial price collapse has been a change in the ownership structure of the Canadian oilsands to bring more of these assets under the control of Canadian companies as international players exit the market.

Canada’s oil and gas industry continues to face challenges relating to insufficient pipeline capacity despite the oil price recovery in the United States and globally. As recently announced, Kinder Morgan’s CAD 7.4 billion Trans Mountain Pipeline Expansion Project, the latest in a long line of maligned proposed Canadian pipeline projects, remains under threat as a result of the BC government’s opposition to the project. Kinder Morgan has announced that it will shelve the project on May 31, 2018, if it does not receive assurances that the project will be able to proceed.

The author would like to thank Jenny Ng, Articling Student, for her assistance in preparing this legal update.

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