Calgary energy company ordered to sell B.C. landfill
Tervita considering appeal after federal tribunal orders sale of hazardous waste site
Calgary-based Tervita Corp. says it may appeal of a decision by the federal Competition Tribunal, which has ordered the company to sell its Babkirk hazardous waste landfill site in northeastern B.C.
"While we are disappointed in the decision reached by the tribunal, it is a lengthy decision involving a consideration of several novel legal issues," Tervita spokeswoman Mandy Dinning said in a statement Wednesday.
"We will take the time to review it thoroughly with a view toward determining whether the pursuit of a successful appeal would be available to us."
Tervita, formerly known as CCS Corp., was ordered by the tribunal on Tuesday to sell the operation acquired with its purchase last year of Complete Environmental Inc., whose primary asset was a permit to operate a landfill for hazardous waste.
Tervita already owned the only two landfills in the region, Silverberry and Northern Rockies, which oil and gas drillers use to dispose of the hazardous waste from their drilling and other operations. The Babkirk site is located within Treaty 8 territory in B.C., and is about 130 kilometres north of Fort St. John.
The Competition Bureau said it was the first court-challenge to a merger since 2005.
Competition Commissioner Melanie Aitken said the ruling sends a clear message to companies seeking to eliminate competitive threats through acquisition.
"The bureau has prevented a multi-billion dollar company from entrenching its monopoly for hazardous waste disposal in northeastern British Columbia," Aitken said.
Jeff Brown, a competition lawyer at Stikeman Elliott in Ottawa, said the decision is a reminder of the bureau's more active role in reviewing takeover and mergers, including smaller deals that it would not ordinarily examine.
"The challenge actually dovetails with what I think appears to be a higher priority that the bureau has been giving to looking for non-notifiable transactions that may raise concerns," Brown said.
"The law has not changed. It is more the bureau's practice has appeared to have changed."
Tervita had argued to the tribunal that Complete Environmental was not or likely to become a "vigorous and effective competitor."
"Even if Complete were to enter by developing and opening a secure landfill, this entry could not reasonably be expected to result in lower tipping fees for producers of hazardous waste in northeastern British Columbia," Tervita argued to the tribunal.
"Given the location of the Babkirk site and the intentions of the Complete shareholders with respect to its development, it is likely that Complete would have charged tipping fees equal to or higher than those charged by CCS at the Silverberry secure landfill."
However Aitken said the case demonstrates that the bureau will take on cases of all sizes and in all sectors.
"Volume of commerce is not the only factor we consider when reviewing mergers — we are willing to take on a case where competition is being denied, regardless of size," Aitken said.
The case is the latest win by the Competition Bureau, which has taken a more aggressive stance in recent years.
The bureau has also launched a high-profile challenge to the merchant fees charged by credit card companies as well as other cases involving the Toronto Real Estate Board and Air Canada.