Rogers Communications Inc. says the Competition Bureau’s appeal of its $20-billion takeover of Shaw Communications Inc. should be dismissed, claiming the law enforcement agency overlooked key facts and wrongly interpreted the Competition Tribunal’s assessments of evidence as legal error.
In documents submitted to the Federal Court of Appeal, Rogers RCI-B-T made its case on behalf of Shaw SJR-B-T and Videotron Ltd. in response to the written arguments submitted last week by Competition Commissioner Matthew Boswell. In December, the Competition Tribunal had dismissed the bureau’s claims that the merger would result in less competition among telecommunications providers in Canada.
The companies and the bureau will face off before the court on Jan. 24.
The bureau has argued that the tribunal should have initially considered the deal only between Rogers and Shaw, without the Freedom Mobile divestiture as a remedy to the loss of competition that could result from the takeover.
In its factum filed Tuesday, Rogers countered the bureau’s claims, saying it overlooked that the Minister of Industry had rejected the terms of the initial deal, including spectrum transfer, before the agency filed its application in March, 2022.
The company also countered the bureau’s claims that the tribunal’s decision could set a dangerous precedent for future mergers in Canada. In its factum submitted last week, the bureau said the ruling could reduce the incentive for settling contested transactions before going to court and instead encourage companies to put forward tactical mergers as nothing more than “trial balloons.”
“The suggestion that the sale of Freedom was a ‘trial balloon’ – some kind of unhelpful litigation stratagem to catch him by surprise – is unfaithful to the record and unhelpful to this court,” Rogers wrote, referring to Mr. Boswell.
The company conceded that the commissioner had “achieved a significant win” when its challenge of the deal resulted in the sale of Freedom Mobile, but said its continued arguments relied on “collateral attacks” and “extravagant theories” that amounted to unhelpful rhetoric.
“The entire process was advantageous to the Commissioner … he got everything he wanted, except the result.”
The companies and the bureau will each be given two hours and 15 minutes to make their case before the Federal Court of Appeal next week. If the court sides with the companies, the bureau may choose to seek leave to appeal the case once more at the Supreme Court of Canada.
Irene Galea