Documentation

CT-2011-002 COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c.C-34, as amended; AND IN THE MATTER OF an Application by the Commissioner of Competition for an order pursuant to section 92 of the Competition Act;

AND IN THE MATTER OF the acquisition by CCS Corporation of Complete Environmental Inc.

BETWEEN: COMMISSIONER OF COMPETITION APPLICANT AND CCS CORPORATION, COMPLETE ENVIRONMENTA L INC., BABKIRK LAND SERVICES INC., KAREN LOUISE BAKER, RONALD JOHN BAKER, KENNETH SCOTT WATSON, RANDY JOHN WOLSEY, AND THOMAS CRAIG WOLSEY

RESPONDENTS

AFFIDAVIT OF SUSAN KOEHL I, Susan Koehl, of 2800 - 666 Burrard Street, Vancouver, BC, SWEAR THAT:

1. I am a legal secretary employed by the law firm of Davis LLP, counsel for the Respondents Karen Louise Baker, Ronald John Baker, Kenneth Scott Watson, Randy John Wolsey and Thomas Craig Wolsey (the "Vendor Respondents") in this action, and as such have personal knowledge of the matters hereinafter deposed to except where stated to be made upon information or belief, and where so stated I believe them to be true ..

Davis:9898 I 52. I PUBLIC VERSION

2. Attached and marked as Exhibit ''A" to this Affidavit is a copy of a letter dated December 2010 from the Competition Bureau to Torys LLP. I am informed by Morgan Burris, counsel for the Vendor Respondents, and verily believe, that this document was produced by the Commission of Competition in this action and referred to during the examination for discovery of the Commissioner's representative, Trevor MacKay, by counsel for the Vendor Respondents.

3. Attached and marked collectively as Exhibit "8" to this Affidavit are copies of pages 287, 289, 290, 300, 301 and 303 from Volume II of the transcript of the examination for discovery of Trevor MacKay.

4. Attached and marked as Exhibit "C" to this Affidavit are copies of pages 417, 418, 426, 427 and 428 from Volume Ill of the transcript of the examination for discovery of Trevor MacKay.

5. Attached and marked as Exhibit "D" to this Affidavit are excerpts from the Witness Statement of Rene Amirault, specifically paragraphs l, I 0 through 20.

SWORN BEFORE ME at Vancouver, ) British Columbia, on October 28, 2011. ) ) ) missioner for taking Affidavits ) susili KOEHL for ritish Columbia. ) 1. KEVIN WRIGHT Barr/111tr mtd Solicitor DAVISLLP 2800 • 666 Burrard Street Vancouver, B.C. V6C 2Zl 604.681.9444 Davis:9898 I 52.1 PUBLIC VERSION

EXHIBIT "A" REDACTED

PUBLIC VERSION

CORNELL•CATANA REPORTING SERVICES. 800·110 Launer Ave. w. ouawa, ON KIP SV5 Tel: (613) 231·4664 1·800·893·6212 Pax: (613) 231·4 Examination No. 11-0617.lB Court File No. CT·2011 02 VOLUME II

IN THE MATTER OF the Competition Act, R.S.C. 1985, c.C·34, as amended;

IN THE MATTER OF an Application by the Commissioner of ition for an Order pursuant to section 92 of the Competition Act;

AND IN THE MATTER OF the acquisition by ccs Corporation of Complete Environmental Inc.

B E T W E E N: COMMISSIONER OF COMPETITION APPLICANT - and -

CCS CORPORATION, COMPLETE ENVIRONMENTAL INC., BABKIRK LAND SERVICES INC., KAREN LOUISE BAKER, RONALD JOHN BAKER, KENNETH SCOTT WATSON, RANDY JOHN WOLSEY, AND THOMAS CRAIG WOLSEY RESPONDENTS

********************** CONTINUED EXAMINATION FOR DISCOVERY OF TREVOR MACKAY, pursuant to an appointment made on consent of the parties to be reported by Cornell•Catana Reporting Services, on July 5th, 2011, commencing at the hour of 10:08 in the forenoon. ***********************

APPEARANCES: Nikiforos Iatrou Jonathan Hood Alexa Gendron-O'Donnell Linda M. Plumpton Crawford Smith

J. Kevin Wright for the Respondents, shareholders Morgan Burris for the Respondents, shareholders This Examination was taken down by sound recording

This is Exhibit• B •referred to In the Affidavit of• ••••••~ !:.::'. ....~ ~.~.~. ....

sworn ~efore me at Vancouver, B.C. Thls..•~• t· ·~;t}ot. . .<?.ST.~. . 20 .LL. ·········· .. "tf.f(.~ ....' tf:!r.Y..!K... ............ . om missioner for taking Affidavits · for British Columbia PUBLIC VERSION

for the Applicant for the Applicant for the Applicant for the Respondents, CCS, Babkirk and Complete for the Respondents, CCS, Babkirk and Complete

·. -- ;,r.!f fJoNA REPORTING SERVICES, 800-170 Laurier Ave. w. . Ottawa. ON KIP SYS .lr' 1-800-893-6272 Fv 287 is that there was existing waste on the Babkirk site and 2 they had specifically -- they had gotten Ken Watson to 3 undertake certain efforts to I believe treat that waste. 4 733. Q. Okay. Is that the event in October of 2009 5 that Mr. Iatrou was referring to? 6 MR. IATROU: I'm sorry, can you repeat the 7 question? 8 BY MR. WRIGHT: 9 734. Q. Is that the event in October 2009 that Mr. 10 Iatrou was referring to? 11 A. I believe so. I don't recall the date that 12 that was. 13 735. Q. Okay. Apart from that activity, however we 14 characterize it, are you aware that Complete as distinct 15 from Babkirk Landfill Services Limited was engaged in 16 other businesses leading up to the time of the closing on 17 January 7th, 2011? 18 A. Yes. 19 736. Q. What's your information about that? 20 A. I can give you my understanding of what the 21 business activities were. They related to contracts they 22 had to -- for a roll-off rental business and additionally 23 for the operation of a transfer station. 24 737. Q. Anything else? 25 MR. IATROU: Can we maybe try to put it this way? PUBLIC VERSION

,.,;-"' ~., <i;TANA REPORTING SERVICES. 800-170 Laurier Ave. w. . Ot· .J]~ 1-800-893-6272 F t~ ;:!"" 289 Environmental Inc., as of the time of closing, January 7, 2011, are accurately summarized or reflected in those 3 definitions? 4 A. I believe so, yes. 5 741. Q. My information is that for a matter of years +( ' 6 leading up to the closing on January 7, 2011 that Babkirk 7 Land Services Limited had had no customers and no 8 revenues. Is that consistent with the Bureau's 9 information? 10 MR. IATROU: Sorry, for how many years prior? 11 MR. WRIGHT: I'll say three years. At least 12 three. 13 THE WITNESS: That's my understanding. 14 BY MR. WRIGHT: 15 742. Q. It had no customers during those three years? 16 A. They accepted waste prior to that and I don't 17 know if they would consider those to be ongoing 18 customers, but if not, they didn't have any new waste 19 product to 20 743. Q. My information is that the last time that 21 Babkirk Land Services Ltd. accepted material or waste at 22 its facility was in 2004. Does the Bureau have any 23 information to the contrary? 24 A. No. I believe that's correct. 25 744. Q. Now, with respect to the Complete businesses, PUBLIC VERSION

-:':~-""~..,.., :~§ATANA REPORTING SERVICES. 800-170 Laurier Ave. w. . Ottawa, ON KIP svs , t-'664 1-800-893-6272 Fi ),1'

290 I take it that you'll accept that the Complete assets and the businesses of Complete as distinct from Babkirk Land 3 Services Ltd. were not used by Complete in the operation 4 of a Secure landfill prior to the January 7th, 2011 5 closing, correct? 6 A. Correct. 7 745. Q. And you would also agree that the services 8 that were being provided by Complete prior to the January 9 7th, 2011 closing were not substitutes for Secure 10 Landfill Services, correct? 11 A. I believe that's correct, yes. 12 746. Q. Now, I understand from the Notice of 13 Application and the Reply that the Commissioner's 14 allegation is that competition has been or will likely be 15 prevented substantially because CCS has acquired control 16 over Babkirk Land Services Ltd., in particular the 17 Babkirk facility owned by that company, the Secure 18 landfill permit and related regulatory approvals owned by 19 Babkirk Land Services Ltd. Is that correct? 20 A. Sorry, could you repeat that? 21 747. Q. Okay. I'll try again. I'm probably not 22 going to do this verbatim. My understanding of the 23 Commissioner's allegations, which I draw from the 24 Pleadings, the Notice of Application, the Reply of the 25 Commissioner -- my question, by the way, is going to be PUBLIC VERSION

f16LL•CATANA REPORTING SERVICES. 800-170 Laurier Ave. w. . Onal 'I'm 2314664 1·800-893·6272 Fax: 1 _ _ ... 300 MR. IATROU: There were some drafts that went back and forth with 3 MR. SMITH: If I can make 4 MR. IATROU: Yes, and - - -5 MR. SMITH: If I can just make a suggestion - - -6 MR. IATROU: Yes? 7 MR. SMITH: - - - you might want to look at MCDM 8 0007_00000096, because the draft of the document that you 9 were -- the document you referred to is a draft. 10 ~R. IATROU: Yes. 11 MR. SMITH: The document at MCDM etc. is signed 12 by a representative of CCS. 13 MR. IATROU: Thanks for that clarification, Mr. 14 Smith. 15 ( OFF RECORD DISCUSSION ) 16 MR. IATROU: The document that Mr. Smith has 17 pointed out, MCDM 0007_96, is the undertaking that we are 18 referring to at paragraph 7. 19 MR. WRIGHT: Okay. And the Bureau negotiated 20 that with the advice and assistance of counsel, correct? 21 MR. IATROU: I mean, it was from Bill Miller, who 22 is counsel at the Bureau. 23 MR. WRIGHT: Right. And the Bureau was 24 completely satisfied with the form of the undertaking •'' 25 described in this letter? <.:+. -,~:;

~;,t.' ~5:'.' ­l PUBLIC VERSION

tr ·,,tATANA REPORTING SERVICES, 800-170 Laurier Ave. w. . oua .. ·~ ""1 v10 <v"' · ,fJ.4664 1-800-893-6272 Fu "' 301 MR. IATROU: The answer is yes. MR. WRIGHT: The Bureau did not seek or obtain 3 any undertaking or commitments from CCS with respect to 4 the businesses of Complete Environmental Inc. that we've 5 discussed? Instead the undertakings were only directed 6 to the interests and assets of Babkirk Land services 7 Ltd.? 8 MR. IATROU: That's correct. 9 MR. WRIGHT: It's noted in the letter, 10 "Although the Commissioner had come to 11 the view that she would challenge the 12 transaction, she deliberately chose not 13 to pursue an interim injunction." 14 Correct? 15 MR. IATROU: Correct. 16 MR. WRIGHT: Does the Commissioner have any 17 information that ccs has violated the undertaking given 18 by this letter? 19 MR. IATROU: No. 20 MR. WRIGHT: Okay. I'm just going to turn for a 21 moment to the relief sought in the case. One of the 22 items of relief sought by the Commissioner in the Notice 23 of Application is dissolution of what's defined as the R1 merger. And I want to make sure I have an understanding 25 of what the Bureau says ought to happen, what Order the PUBLIC VERSION

.. -,,cATANA REPORTING SERVICES. 800-170 Laurier Ave. w. . Ottawa, ON KIP svs _,--4664 1-800-893-6272 Fax: p 303 MR. WRIGHT: Is there a reason why the Commissioner has identified dissolution as the first preferred remedy and only seeks divestiture in the 4 alternative? 5 MR. IATROU: It's listed first, and the other 6 options that we're raising for the tribunal to consider 7 are in the same paragraph, identified as alternatives 8 that the tribunal may consider. Beyond that, no. 9 MR. WRIGHT: With respect to the relief sought of 10 dissolution, the Bureau understands that by seeking 11 dissolution it's seeking to return to the control of the 12 vendor Respondents to the extent it may be possible 13 businesses of Complete which we've established do not 14 give rise to competitive concerns of either the 15 Commissioner or this Application? 16 MR. IATROU: We've given you a -- we've taken 17 under advisement one of the questions you've built into 18 your question there. In terms of what dissolution would 19 entail, that it would entail the reacquisition by the 20 vendors of the shares that comprise all of the 21 businesses, I agree with you. 22 MR. WRIGHT: Now, I'll just turn to another 23 topic. In the course of the Examination conducted by 24 lawyers for CCS yesterday and this morning and early 25 afternoon today, a number of times the responses that PUBLIC VERSION

CORNELL•CATANA REPORTING SERVICES. HOO~ 170 L:iurier Ave. W. Ouawil, ON KIPS' fol: (613) 231-4664 1·800·893~6272 Fax: \613) 231·46\ l Examination No 11 0617.lC Court File No. CT 2011 02 VOLUME III

THB COMPETITION TRIBONAL IN THB MATTER OP the Competition Act, R.S.C. 1985, c.C-34, as amended;

IN THB MATTER OP an Application by the Commissioner of Competition for an Order pursuant to section 94 of the

Competition Act;

AND IN THB MATTER OP the acquisition by ccs Corporation of Complete Environmental Inc.

B E T W E E N: COMMISSIONER OF COMPETITION APPLICANT - and -

CCS CORPORATION, COMPLETE ENVIRONMENTAL INC., BABKIRK LAND SERVICES INC., KAREN LOUISE BAKER, RONALD JOHN BAKER, KENNETH SCOTT WATSON, RANDY JOHN WOLSEY, AND THOMAS CRAIG WOLSEY RESPONDENTS ********************** EXAMINATION FOR DISCOVERY OF TREVOR MACKAY, pursuant to an appointment made on consent of the parties to be reported by Cornell•Catana Reporting Services, on July 6, 2011, commencing at the hour of 10:00 in the forenoon. *********************** APPEARANCES: Mr. Nikiforos Iatrou for the Applicant Mr. Jonathan Hood for the Applicant Ms Alexa Gendron-O'Donnell for the Applicant Ms Linda M. Plumpton for Respondents CCS, Complete and Babkirk Mr. Crawford Smith for Respondents CCS, Complete and Babkirk Mr. J. Kevin Wright for the shareholder Respondents Ms Morgan Burris for the shareholder Respondents This Examination was taken down by sound recording by Cornell•Catana Reporting Services Ltd.

This Is Exhibit• C. •referred to in the Affidavit of ... 2.~~:-:-! .... ~~~.'::-...... . sworn ~efora me at Vancouver, B.C. This~ ...... d y of ...' ?..~.~ .. 20 .1.). ... ...... F D~ • m ;; ,,;;,o,;.;;·;~;;;;;- ,g·;.flj;;~~;i;;' ""' for British Columbia PUBLIC VERSION

siL•CATANA REPORTING SERVICES. 800-170 Laurier Ave. w. . Ottawa r\t.! Vtn ttur ,,J:,,231.4664 1·800·893·6272 Fax: ! 417 MR. IATROU: To the extent that we have those 2 documents and they form part of the summary, that's the 3 case. 4 MR. WRIGHT: To be clear, if it was an e-mail s generated response to a request from the Bureau or a 6 written response to a request for information? 7 MR. IATROU: Again, we would have used -- that 8 would have formed part of ---9 MR. WRIGHT: Did the Bureau obtain any Section 11 10 orders as part of its investigation? 11 MR. IATROU: We're going to take that under 12 advisement. *A* 13 MR. WRIGHT: Obviously, if there were I'd like 14 particulars of that? lS MR. IATROU: We'll take that under advisement as 16 well. *A* 17 BY MR. WRIGHT: 18 1027. Q. I just wanted to turn to paragraph 3l(a) of 19 the application. This is the paragraph for relief sought 20 and the last portion of paragraph 3l(a) with respect to 21 the question of divestiture speaks to a purchaser that 22 has been approved in advance by the Commissioner. Do you 23 see that? 24 A. Yes. 2S 1028. Q. I take it you would agree with me that where PUBLIC VERSION

~NELL•CATANA REPORTING SERVICES. 800-170 Laurier Ave. w. . Otta"' (oil) 231·4664 1·800-893·6272 Fax: 4 8 the Commiss seeks divestiture, as a matter of 2 poli , the Commissioner will seek to have the term of 3 either the consent agreement or order require that the 4 purchaser be approved by the Commissioner? 5 A. Yes. 6 1029. Q. In fact, that's been the case in all merger 7 cases under Section 92 since the merger provision, 8 Section 92, came into effect in 1986. 9 That is whether it's a consent agreement or a 10 contested case, where divestiture has been sought and 11 where it is being agreed to ordered, that there has been 12 a term that requires approval of the purchaser by the 13 Bureau? 14 A. I don't know the answer to that. 15 1030. Q. You're not aware of any examples where that 16 hasn't happened? 17 A. I'm not. 18 1031. Q. It's important to the Bureau that they have 19 an opportunity to approve the purchaser in the case of a 20 divestiture; correct? 21 A. That's correct. 22 1032. Q, Why is it important? 23 A. To maintain competition. 24 1033. Q. In particular, would it be fair to say that 25 it's important from the Bureau's perspective, that the PUBLIC VERSION

,.sr ·.' riSiL•CATANA REPORTING SERVICES, 800-170 Laurier Ave. W., Our ;(6f3> 231-4664 1-800-893-6272 Fa 426 Do you have that? 2 A. Yes. 3 1047. Q. I take it that if there is a dissolution as 4 opposed to a divestiture in this case, the Bureau would not have the opportunity to conduct or approve the 6 operator of that assignment; correct? 7 A. I believe that's correct, yes. 8 1048. Q. Is there any way in which there is an 9 advantage in terms of achieving an effective remedy to 10 require a dissolution as opposed to divestiture? 11 MR. IATROU: As we've previously stated, the 12 remedy that we've sought just simply has been framed in 13 such a way as to allow the Tribunal to identify the most 14 appropriate remedy. Beyond that, I don't think we have 15 more information. 16 MR. WRIGHT: Thank you, I'll take that answer. 17 I'm going to ask something further though, is that in 18 order to assist the Tribunal -- or assist my clients in 19 understanding the case to mean, does the Bureau have any 20 reason to believe that divestiture would not be effective 21 and ordered in a remedy in this case? 22 MR. IATROU: Divestiture were ordered and the 23 divestiture were effected? 24 MR. WRIGHT: Yes? 25 MR. IATROU: The divestiture would succeed. If PUBLIC VERSION

)llSLL•CATANA REPORTING SERVICES. 800-170 Laurier Ave. w. Ot 231-4664 1-800-893-6272 F< 4 7 the iture were to work then I think you're correct. 2 MR. WRIGHT: If it were to be effected. 3 MR. IATROU: If it were to be effective at 4 removing the SPC ---5 MR. WRIGHT: Let me back up here. The 6 divestiture order is made in the ordinary course? 7 MR. IATROU: Yes? 8 MR. WRIGHT: There's no guarantees - - let me back 9 up. 10 MR. IATROU: Sure, I understand where ---11 MR. WRIGHT: As far as the Tribunal is concerned, 12 it orders the divestiture. What happens once the 13 divestiture is completed is what happens? 14 MR. IATROU: I agree with you. It's with a view 15 to resolving the ---16 MR. WRIGHT: So the Tribunal is going to have to 17 obviously, there's no concession to this point, but 18 assuming that the Commissioner -- and to show there was 19 or likely to be a substantial prevention of competition, L 20 the Tribunal is charged to decide whether or what remedy ,,., fc 21 to issue and that's where the Bureau has said one of them t~ ~· 22 may be divestiture. ~ ~ ,~. 23 And so if the Bureau were to order divestiture, 24 in that case once it's divested, that's it. The order is 25 spent and subject to any restraints on what would happen PUBLIC VERSION

'"TANA REPORTING SERVICES, 800-170 Laurier Ave. w., Onawr.~tP~~ t:.t664 1-800-893-6272 Fax; {613) 231-460j 428 -- the divestiture in terms of reselling to CCS, for 2 example. 3 So what I'm getting at is this: Does the Bureau 4 have any information or any reason to believe that if the 5 Tribunal were to make an order for divestiture, that it 6 would not lead to an actual divestiture? 7 MR. IATROU: If the Tribunal saw it fit to order 8 divestiture, it would place the appropriate safeguards in 9 place so that the Tribunal was satisfied the divestiture 10 would be effected, then I think that would be the case. 11 MR. WRIGHT: And to take that one step further. 12 If the Tribunal had to choose between dissolution and 13 divestiture, there are no advantages or in terms of the 14 effectiveness of the likely remedy, in ordering 15 dissolution over divestiture? 16 MR. IATROU: I don't know that we can answer 17 that. 18 MR. WRIGHT: You don't have information? 19 MR. IATROU: No. 20 MR. WRIGHT: As a matter of policy, does the 21 Bureau always seek all possible remedies under Section 92 { 't ~ ! 22 in bringing applications? That is all possible remedies t~' t' 23 of the Tribunal -- an order under Section 92 in a t,_ . i 24 contested application? ~~ ,t 25 MR. IATROU: As you know, applications are rare ~-~'. t t . ' PUBLIC VERSION

Public VOtlloo CT- 2011-002 COMPETITION TRIBUNAL

BETWEEN: THE COMMISSIONER OF COMPETITION Applicant -and· CCS CORPORATION, COMPLETE ENVIRONMENTAL INC., BABKIRK LAND SERVICES INC., KAREN LOUISE BAKER, RONALD JOHN BAKER, KENNETH SCOTT WATSON, RANDY JOHN WOLSEY, AND THOMAS CRAIG WOLSEY