Competition Tribunal Tribunal de la Concurrence CT - 1991 / 001 – Doc # 157 IN THE MATTER OF an application by the Director of Investigation and Research for orders pursuant to section 92 of the Competition Act, R.S.C., 1985, c. C-34, as amended;
AND IN THE MATTER OF the acquisition by Hillsdown Holdings (Canada) Limited of 56% of the common shares of Canada Packers Inc.
B E T W E E N: The Director of Investigation and Research Applicant - and - Hillsdown Holdings (Canada) Limited Maple Leaf Foods Inc. Nine-Five Investments Limited Ontario Rendering Company Limited
Respondents
CORRECTION TO REASONS AND ORDER
COMPETITION TRIBUNAL CORRECTION TO REASONS AND ORDER ___________________________________________
The Director of Investigation and Research v. Hillsdown Holdings (Canada) Limited et al. Please replace page 86 in the Reasons and Order issued on March 9, 1992, with the attached corrected page. You will note that the corrected second sentence in line 7 of the Conclusion reads: The Tribunal does not accept that argument.
DATED at Ottawa, this 13 th day of March, 1992.
Pound) to a charge being levied for pick-up. In any event, given the Tribunal’s finding elsewhere it is not necessary to express any conclusions with respect to this analysis.
(4) Conclusion It is first necessary to address the question of the burden of proof which must be met by respondents when alleging efficiency gains. Counsel for the respondents seemed to argue that once they had established the claimed efficiency gains on a prima facia basis, that was sufficient to transfer the onus of disproving them to the Director. He argued that if on the balance of probabilities there was uncertainty, the doubt should be resolved in the respondents’ favour. The Tribunal does not accept that argument. The respondents have the onus of proving the existence of the efficiencies claimed, or the likelihood of their existence when the merge has not been consummated, on the balance of probabilities in the normal way. Many of the claimed efficiency gains in this case, as has been noted, have not been proven to have arisen out of the merger as opposed to having arisen as a result of the restructuring caused by the expropriation. More importantly, however, the respondents based their trade-off analysis on a legal interpretation of section 96 which the Tribunal does not think is correct. That interpretation will be discussed below.