OTTAWA – The Competition Tribunal has ordered the Commissioner of Competition to pay Rogers and Shaw a little more than $9.7 million and $3.2 million, respectively, to compensate for their costs associated with the Competition Bureau’s legal challenge last year of the companies’ merger.
In a decision filed Tuesday, the Tribunal says Rogers is to be paid $414,720 for counsel fees and $9,298,152.58 as reimbursement for reasonable disbursements, plus any applicable HST. Shaw is to receive $416,187 for legal costs and $2,836,920.30 to compensate for reasonable disbursements, plus applicable HST.
Quebecor’s Videotron, which was an intervenor in the legal case brought against Rogers and Shaw by the Competition Bureau, did not have any costs awarded, primarily because the company didn’t make a formal request for costs in its motion for leave to intervene in the case, the Tribunal explained in its costs decision.
The Commissioner of Competition’s case against the Rogers-Shaw merger agreement — a transaction that was initially proposed in March 2021 — eventually came to an end in January 2023 after the Federal Court of Appeal upheld the Competition Tribunal’s December 2022 dismissal of the Competition Bureau’s application to block the deal.
In its efforts to stop the merger, the Bureau had continued to pursue its case even after Rogers and Shaw announced in June 2022 they had struck a deal to sell Shaw’s Freedom Mobile to Quebecor’s Videotron as part of the Rogers-Shaw merger.
In its decision released Tuesday, the Competition Tribunal said it agreed with Rogers’s and Shaw’s position that “the Commissioner’s pursuit of the Initially Proposed Transaction was intransigent and should now have consequences. Among other things, the Commissioner’s refusal to focus on the Divesture, despite repeated suggestions from the Tribunal that he do so, resulted in substantial resources having to be devoted by the Respondents and the Tribunal to something that had become legally and practically foreclosed.”
Rogers and Shaw had contended the Commissioner had “adopted an unnecessarily contentious approach throughout the litigation,” which had “resulted in excessive production of over 2.6 million documents, nine days of examinations for discovery, 16 contested pre-trial motions, the engagement of Bell and Telus in motions over documents and subpoenas, and the exchange of approximately 45 witness statements and expert reports in a very tight timeframe,” reads the Tribunal’s decision.
“I recognize that complex, high-stakes, and time-sensitive litigation can and does often require actions to be taken that may not objectively appear to be unreasonable at the time,” the decision signed by Tribunal presiding member Paul Crampton says. “I also acknowledge that the Respondents adopted at least some positions that were not entirely reasonable or ultimately accepted by the Tribunal.
“However, on balance, I find that the Commissioner engaged in much more serious unreasonable behaviour than did the Respondents, and that this behaviour had a very significant adverse impact on the time and costs that were associated with the proceeding. Consequently, I conclude that this factor weighs in favour of awarding elevated legal costs in favour of the Respondents.”
