By Ahmad Hathout
A senior official from the Competition Bureau told members of Parliament on Monday that the watchdog is pleased with a proposed amendment to the Competition Tribunal Act that would shield it from cost awards except in limited circumstances, after it was forced to pay $12.9 million after challenging Rogers’s proposed acquisition of Shaw.
A proposed amendment in Bill C-59, which is one of two pieces of legislation to overhaul Canada’s competition rules, would limit the scope by which the Competition Tribunal can force the law enforcement agency to compensate private parties in the event it loses a challenge to block a merger or acquisition.
The proposal would limit cost awards only in the event where the tribunal feels it “necessary to maintain confidence in the administration of justice” or if no such cost award would mean a “substantial adverse effect on the other party’s ability to carry on business.”
While Jeanne Pratt, the Competition Bureau’s senior deputy commissioner of the mergers branch, said Monday that the watchdog was able to absorb the costs ordered by the tribunal after challenging the Rogers-Shaw combination, she added the agency welcomes the proposal.
“We are very welcoming of the proposed amendments in Bill C-59,” Pratt said in response to a question from NDP MP Brian Masse about whether the bureau is concerned about a negative impact of such awards.
“That goes a long way to addressing any potential chilling impact that the cost awards could have on us bringing cases before the tribunal,” she added.
The introduction of the legislation in November came after the Competition Tribunal ruled last summer that Rogers and Shaw were owed $12.9 million by the Competition Bureau.
The tribunal ruled that the watchdog’s approach to its case was unreasonable, in part because it refused to focus on the divestiture of Shaw’s Freedom to Quebecor, “despite repeated suggestions” that it do so, “resulting 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 argued to the tribunal that the Competition Bureau “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.”
Rogers closed its acquisition of Shaw in April 2023.
