Court of Appeal rejects effort to overturn Rogers-Shaw decision
OTTAWA –
The Federal Court of Appeal has rejected the Competition Bureau’s attraction on the Rogers-Shaw deal.
The court docket discovered the Competition Bureau’s arguments didn’t meet the edge to overturn the choice by the Competition Tribunal approving the deal.
More to return. Original copy follows.
Competition Bureau legal professionals introduced arguments earlier than the Federal Court of Appeal Tuesday morning in an effort to overturn the Competition Tribunal’s approval of Rogers Communications Inc.’s proposed takeover of Shaw Communications Inc.
The bureau’s arguments centered on what they are saying are 4 key authorized errors that focus particularly on how the proposed sale of Shaw’s Freedom Mobile to Videotron, as a option to ease competitors considerations, factored into the tribunal’s choice.
Bureau lawyer Alexander Gay argued that the way in which the tribunal assessed the deal led it to consider a sequence of concessions Rogers has agreed to grant to Videotron to assist increase the aggressive place because it expands exterior of Quebec.
The concessions, similar to discounted entry to web infrastructure, mustn’t have been factored in, Gay mentioned, as a result of they’re behavioural commitments that aren’t dependable or enforceable sufficient, and that would not have been in play had the tribunal correctly assessed the proposal.
“It’s almost entirely a series of service agreements between competitors. Those couldn’t have been considered,” mentioned Gay.
“That is a huge error. And that I think gives enough doubt in this case that really it should be sent back for that very reason. Just that reason alone.”
Rogers, which is about to current its aspect within the afternoon, argued in court docket submissions that the tribunal correctly thought of the mixed offers between Rogers, Shaw and Videotron because the proposed merger, reasonably than the sale of Shaw’s Freedom Mobile to Videotron as a aspect treatment, which modifications the burden of proof.
The firm nevertheless additionally famous that the tribunal mentioned that even when the burden of proof was shifted it might have been glad, and that it concluded {that a} Videotron-owner Freedom wouldn’t be depending on Rogers.
Rogers, arguing the bureau has relied on oblique assaults reasonably than core questions of regulation, mentioned in its filings that the bureau’s arguments are “an attempt to sew doubt without proving palpable and overriding error.”
Federal Court of Appeal justices additionally emphasised of their questions the excessive threshold required to overturn a tribunal choice in pointed inquiries to bureau legal professionals.
The manner the tribunal assessed the proof, nevertheless, leaves sufficient of a niche that it ought to be re-heard, mentioned Gay.
“I think we’re left with doubt, and that doubt has to be cleared …. certainly a case of this nature, where it affects millions of Canadians in western provinces who are cellphone users. I think they deserve to know.”
The listening to on the Federal Court of Appeal in Ottawa runs a single day with a choice date on the attraction not but set, because the prolonged Jan. 31 deadline of the deal approaches.
This report by The Canadian Press was first printed Jan. 24, 2023.
