In March 2022, the Competition Bureau set out to block the Rogers C$26 billion takeover of Shaw. Now it is being ordered to pay millions of dollars to the two telcos after failing to do so.
In a document posted on Tuesday, the Competition Tribunal, which adjudicated the Bureau’s case against the merger, ordered the Commissioner of Competition to pay $9,298,152.58 to Rogers and $2,836,920.30 to Shaw, plus applicable HST.
Additionally, the Commissioner will have to pay 25 per cent of the legal fees incurred by the two telcos, amounting to over $400,000 each.
The disbursements, Rogers and Shaw argued, are “conservative, given the stakes involved, the complexity of the dispute, and the amount of work that was required from pleadings to trial, all within a matter of months.”
However, the Tribunal acknowledged that these amounts are very substantial for a public authority such as the Commissioner, and that it is “mindful that public interest may suffer” if the level of costs awarded discourages the Bureau from bringing forward such cases again.
It added that there was nothing “vexatious or irresponsible” in the Commissioner’s bringing the case, which, in fact, raised novel issues with broad public interest.
But the Commissioner should have focused on the side divestiture, Vidéotron’s takeover of Shaw’s Freedom Mobile, upon which the closing of the main transaction depended and which aimed to remedy competition concerns, the Tribunal contended.
Rogers and Shaw argued that the Commissioner refused to do so. They also blamed Competition Commissioner Matthew Boswell for adopting “an unnecessarily contentious approach throughout the litigation, which significantly increased the costs that they were required to incur.”
The Commissioner argued it is, in fact, Rogers and Shaw, who “unnecessarily complicated the dispute,” pointing to, for instance, Rogers refusing to admit, during court proceedings, that it experienced a service outage in 2022.
The Competition Tribunal, however ruled that “on balance”, the Commissioner’s conduct was “much more unreasonable” than that of Rogers and Shaw.
The Competition Bureau had requested a lump sum amount of $10.9 million, inclusive of counsel fees and disbursements, in the event that its application to block the merger was successful.
Vidéotron had also requested disbursements and legal fees in regards to its involvement in the case, but the Tribunal ruled that the company should not be awarded anything.