PUBLIC
THE COMPETITION TRIBUNAL
CT-2021-002
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; AND IN THE MATTER OF the acquisition of Tervita Corporation by SECURE Energy Services Inc.;
AND IN THE MATTER OF an Application by the Commissioner of Competition for an order pursuant to section 92 of the Competition Act.
BETWEEN:
THE COMMISSIONER OF COMPETITION - and - SECURE ENERGY SERVICES INC.
Applicant
Respondent
REPLY TO COST SUBMISSIONS OF THE APPLICANT
BLAKE, CASSELS & GRAYDON LLP Barristers & Solicitors 199 Bay Street, Suite 4000 Commerce Court West Toronto, Ontario M5L 1A9
Robert E. Kwinter Phone: (416) 863-3283 Email: rob.kwinter@blakes.com
Nicole Henderson Phone: (416) 863-2399 Email: nicole.henderson@blakes.com
Brian A. Facey Phone: (416) 863-4262 Email: brian.facey@blakes.com
Joe McGrade Phone: (416) 863-4182 Fax: (416) 863-2653 Email: joe.mcgrade@blakes.com
Lawyers for the Respondent, SECURE Energy Services Inc.
TO:
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DEPARTMENT OF JUSTICE CANADA Competition Bureau Legal Services Place du Portage, Phase I 50 Victoria Street, 22 nd Floor Gatineau, Quebec K1A 09C
Jonathan Hood Tel: (416) 954-5925 Fax: (416) 973-5131 Email: jonathan.hood@cb-bc.gc.ca
Paul Klippenstein Tel: (819) 934-2672 Email: paul.klippenstein@cb-bc.gc.ca
Ellé Nekiar Tel: (819) 360-8760 Email: elle.nekiar@cb-bc.gc.ca
Lawyers for the Applicant, the Commissioner of Competition
PUBLIC
1. The Commissioner’s assertion that SECURE overstated the efficiencies arising from the transaction on the section 104 application (by comparison with the efficiencies claimed on the section 92 application) is false and misleading. 1 Further, the time for raising new (and clearly erroneous) substantive points regarding the efficiencies claimed by SECURE has long passed. The Tribunal should have no regard to this argument in fixing the costs of this application (the Tribunal already has SECURE’s broader costs submission), or otherwise.
2. The difference between the and figures referenced in the Commissioner’s submissions, 2 does not represent a “reduction” in the efficiencies claimed. This is an “apples to oranges” comparison. The figure is a “discounted” figure and the figure is an “undiscounted” figure. Mr. Harington had consistently, and appropriately, set out the “discounted” and “undiscounted” efficiencies figures in his reports. The Tribunal itself recognized this distinction in its Order on the section 104 application. 3
3. Moreover, the comparison the Commissioner invites the Tribunal to draw between estimated efficiencies identified prior to the section 104 application, and the efficiencies that would be lost in the event of “two different hypothetical divestiture orders” is inapposite. When Mr. Harington prepared his preliminary report (relied upon by SECURE for the section 104 application), the nature of any possible divestiture orders being sought by the Commissioner was unknown. Mr. Harington’s efficiencies estimates therefore addressed the possibility of an interim order affecting the transaction in its entirety, which was sought by the Commissioner. Mr. Harington’s updated report, filed in connection with the Commissioner’s amended section 92 application, appropriately considered the impact of potential divestiture orders (even though the
1 Commissioner’s costs submissions, paras. 7-10. 2 Commissioner’s costs submissions, paras. 7 and 9 3 See, e.g. para 29.
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specific divestitures being sought by the Commissioner were still unknown when his report was filed).
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 14 th
day of February, 2023
_________________________________________ BLAKE, CASSELS & GRAYDON LLP Lawyers for the Respondent, SECURE Energy Services, Inc.