Updated: Federal Court of Appeal dismisses Competition Bureau case

Tuesday afternoon the Federal Court of Appeal dismissed with costs the Commissioner of Competition’s appeal of the Competition Tribunal’s decision on the merger of Rogers Communications Inc. and Shaw Communications Inc. The ruling came without the telecoms having to present their oral arguments to the court. The morning session was taken up with the commissioner’s case, presented by government lawyer Alexander Gay. After a lunch break that featured two delays, the court resumed at 2:45. Justice David Stratas read the three-judge panel’s decision into the record. Stratas stressed that the court could only hear arguments of law, not of fact. In the matter of issues of fact, the court concedes jurisdiction to the tribunal. Most of which the tribunal heard was factual rather than legal, the justice noted. “In competition terms, this was far from a close case,” Stratas said. The tribunal ruled that competition would not be lessened or prevented by allowing Rogers to take over Shaw, a key factor in determining whether the deal should be blocked. Even if the tribunal erred in matters of law, it would not have changed the facts of the case, the panel decided. Therefore, it does not make sense to refer the matter back to the tribunal for re-examination. The judges dismissed the commissioner’s argument that the burden of proof should be placed on the responding telecoms rather than the Competition Bureau itself. The Bureau was well aware of the timelines of the deal prior to the hearing before the tribunal. “Close this case was not,” Stratas avered. The tribunal decision was clear in its acceptance of the respondents’ positions. There was nothing unclear about why the panel ruled the way it did, the judges maintained. Several times they accepted the tribunal verdict and the appellate motions filed by the telecoms. The commissioner had said that favourable rates for Quebecor Inc.’s Videotron division from Rogers should have gone to the bureau for approval. Videotron is buying Freedom Mobile from Shaw. The court of appeal rejected the bureau’s position in its decision. Before the hearing, the bureau sought to introduce new evidence. TekSavvy Solutions Inc. has an application before the CRTC to stop the merger on procedural grounds. The court dismissed that motion from the bureau. “The fact that just days ago, but months after the divestiture became known, someone has started a proceeding before another administrative body has nothing to do with our task,” the judges stated. OpenMedia was quick off the bat with its reaction. Within minutes of the decision it fired out a press release, decrying the ruling. “The deal the tribunal accepted is still terrible for ordinary Canadians,” campaigns director Matt Hatfield said in the statement. “Even with a Freedom Mobile spinoff, Rogers buying Shaw means less choice and more expensive prices for every consumer in Canada.” He called on Innovation Minister François-Philippe Champagne to block the deal. The minister’s approval is the final stage of the proposed merger, unless the bureau attempts to appeal this week’s ruling to the Supreme Court. NDP Critic for Innovation, Science and Industry Brian Masse issued his own statement following the decision, echoing the call for Champagne to block the deal. “Today’s decision by the Federal Court of Appeal to allow the Rogers and Shaw merger to proceed is bad news for Canadian families who depend on telecom services in their everyday lives. This will mean less competition and higher monthly bills for cellphone and internet services," Masse said in the statement. "The Liberals must step in and stand up for consumers by blocking this merger now," he said. –Reporting by Paul Park at ppark@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

Updated: Federal Court of Appeal dismisses Competition Bureau case

Broadcast | January 24, 2023

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Updated: Federal Court of Appeal dismisses Competition Bureau case

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