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Competition Bureau’s appeal of Rogers-Shaw decision faces high bar

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The merger now only requires approval from Innovation, Science and Economic Development Canada

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The Federal Court of Appeal has decisively rejected the Competition Bureau’s bid to overturn a tribunal decision approving the merger between Rogers Communications Inc. and Shaw Communications Inc.

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“We defer to the tribunal, in fact, quite significantly,” Justice David Stratas told the court, in dismissing the appeal during a one-day hearing in Ottawa Jan. 24. Stratas said the court rendered the tribunal’s decision as if it had been made in a federal court.

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“It will be pointless to send this case back to the Competition Tribunal for re-decision,” he said.

The merger now only requires 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 set to hold meetings on Jan. 25 to review the updated deal, which includes the proposed remedy to sell Freedom Mobile to Vidéotron.

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Earlier Tuesday, the judges had asked questions about the Competition Bureau’s legal arguments, reminding 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.”

“According to the tribunal, this was not a particularly close case,” 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 earlier in the day.

The appeal came after the Competition Bureau had 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 was heard.

In its appeal application, the Competition Bureau had alleged the tribunal “made four legal errors,” and that a different outcome would have been reached if those “legal errors” had not been made.

The merger now 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 meetings on Jan. 25 to review the updated deal, which includes the proposed remedy to sell Freedom Mobile to Vidéotron.

• Email: dpaglinawan@postmedia.com | Twitter:

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