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Federal court judges asked questions about the Competition Bureau’s legal arguments on Tuesday morning as a hearing on the bureau’s appeal of a tribunal decision to approve the merger between Rogers Communications Inc. and Shaw Communications Inc. got underway.
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Judges at the Federal Court of Appeal in Ottawa, which is assessing the appeal in a one-day session, reminded the parties that the court can only interfere if the tribunal committed “palpable and overriding errors” in its decision, which one judge said is “a very high test.”
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“According to the tribunal, this was not a particularly close case,” Justice David Stratas said. “It found, I would say on the evidence, rather decisively that there was no substantial lessening of competition and in saying that, I want to hear your points about legal error,” Stratas told the Bureau’s lawyers.
The appeal comes after the Competition Bureau failed to resolve its objection to the deal with the companies in mid-2022 and then had its attempt to block the deal dismissed by the Competition Tribunal on Dec. 29.
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In that decision, the three-member tribunal rejected the Bureau’s arguments that combining the two telecom giants would substantially lessen wireless competition, particularly in light of a side deal to sell Shaw’s Freedom Mobile to Vidéotron.
The Commissioner of Competition then appealed the tribunal decision and applied for an injunction, which the Federal Court of Appeal granted earlier this month, blocking the deal from closing until the appeal is heard.
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In its appeal application, the Competition Bureau alleged the tribunal “made four legal errors,” and that a different outcome would have been reached if those “legal errors” had not been made.
If the appeal is rejected, the deal will only require approval from Innovation, Science and Economic Development Canada (ISED), led by Industry Minister François-Philippe Champagne. A House of Commons committee, which plans to make recommendations to the minister, is also set to hold a meeting on Jan. 25 to review the updated deal, which includes the proposed remedy to sell Freedom Mobile to Vidéotron.
• Email: dpaglinawan@postmedia.com | Twitter: denisepglnwn
