Competition Bureau Adds ‘Legal Error’ Claims to Rogers-Shaw Merger Appeal

The Competition Bureau is expanding its appeal of the Competition Tribunal’s ruling against its petition to block Rogers’ proposed $26 billion takeover of Shaw Communications, tacking on two claims of “legal error” — reports The Globe and Mail.

After the Tribunal released its summary decision in favour of the Rogers-Shaw merger on December 29, the Bureau filed an appeal. Per the Competition Bureau, the Tribunal should have first evaluated the Rogers-Shaw deal independent of the sale of Shaw-owned Freedom Mobile to Quebecor’s Vidéotron, which has been positioned as a remedy to competition concerns over the merger.

Meanwhile, the Tribunal maintains that it would have arrived at the same decision even if it had taken that route.

The Bureau on Friday filed an updated appeal, adding two new claims. Canada’s Commissioner of Competition is now accusing the Tribunal of making a legal error by not providing a satisfactory explanation as to why its decision would have been the same.

Furthermore, the Bureau claims that the Tribunal erred again by improperly applying the legal test for mergers. It did not take into account the magnitude of potential service price increases and failed to consider the duration and scope of the effects of the proposed union, the Bureau said in its expanded appeal.

Last week, the Bureau managed to get the Tribunal’s approval of the deal temporarily suspended, pending a ruling on its application for a stay and an injunction.

If the Bureau loses its appeal, though, Rogers and Shaw will only require approval from Industry Minister François-Philippe Champagne for the Freedom-Vidéotron deal to proceed with their marriage.

Following the Tribunal’s ruling, Minister Champagne announced he will render a separate decision on the deal once “there is clarity on the ongoing legal process.” However, he has previously said he would approve the transfer of wireless licences provided Quebecor agrees to certain conditions, including holding on to Freedom’s spectrum licences for at least 10 years and lowering wireless prices in Ontario, British Columbia, and Alberta to Quebec levels.

The Bureau must file written arguments for its appeal by January 13. Rogers and Shaw have until January 17 to file their written arguments. The two sides will meet in court yet again for a hearing before the Federal Court of Appeal on January 24.

Rogers and Shaw previously moved their mutual deadline for the merger, as well as the Freedom-Vidéotron sale, to January 31, 2023.