Canada’s Competition Tribunal has ordered the Competition Bureau to pay over $9 million to Rogers Communications and Shaw Communications for a lengthy court battle after the bureau sought to block their $20 billion merger.
In an August 28 ruling, the Competition Tribunal called the Commissioner of Competition Matthew Boswell’s approach to block the deal “unreasonable.”
The companies asserted that Boswell “adopted an unnecessarily contentious approach throughout the litigation, which significantly increased the costs that they were required to incur,” according to the Tribunal, which cited the production of over 2.6 million documents, nine days of examinations for discovery and 16 contested pre-trial motions.
Rogers closed on its purchase of Shaw in April, but that came after a long, agonizing process because regulators feared it would hinder competition, particularly in wireless. The Rogers-Shaw transaction was first announced in March 2021.
One of the main provisions in the deal was the sale of Shaw’s Freedom Mobile to Videotron to address competition concerns. Alberta and British Columbia were the two geographic markets at issue in the proceeding.
“It bears underscoring that there will continue to be four strong competitors in the wireless markets in Alberta and British Columbia, namely, Bell, Telus, Rogers and Videotron, just as there is today,” the Competition Tribunal stated. “Videotron’s entry into those markets will likely ensure that competition and innovation remain robust. Among other things, Videotron has a proven record of aggressive pricing and innovation in Quebec and parts of Eastern Ontario.”
Videotron’s expansion into Alberta, British Columbia and the rest of Ontario will be facilitated by favorable arrangements that it has negotiated as part of the divestiture, according to the Competition Tribunal.
The Competition Tribunal last December allowed the Rogers-Shaw deal and the sale of Freedom Mobile to proceed. The Federal Court of Appeals upheld that decision in January 2023.
Rogers made a number of commitments to get approval, including maintaining a Western Canada headquarters in Calgary, investing in network upgrades and the creation of 3,000 new jobs.
The Competition Bureau did not immediately provide a statement today in response to the Tribunal’s order.
Update: After this story was first published, Competition Bureau spokesperson Sarah Brown provided a response, saying that they’re disappointed with some of the Competition Tribunal’s characterizations of the Commissioner’s conduct.
“The Commissioner acted in the public interest to protect competition throughout the entire proceeding and we fundamentally disagree with any suggestion to the contrary. We note that the Tribunal expressly found that there was a broad public interest in bringing this case and that it was a responsible case to bring,” Brown said in a statement provided to Fierce.
“We stand by the findings of our extensive investigation and the decision to challenge this merger. We brought a strong, evidence-based and responsible case to the Tribunal. In all cases, the Bureau’s mandate is to protect competition and the public interest in competition for Canadians. And we remain undeterred in our pursuits to do just that," Brown added.