By Ahmad Hathout
OTTAWA — The Competition Bureau will not challenge a decision by the Federal Court of Appeal today that summarily rejected its arguments against a Rogers acquisition of Shaw, thereby leaving only the minister of innovation to approve or deny the deal.
“We are truly disappointed that the Federal Court of Appeal has dismissed our appeal of the Competition Tribunal’s decision in Rogers-Shaw,” Competition Commissioner Matthew Boswell said in a press release this evening, adding the bureau stands by the findings of its investigation and the decision to challenge the merger.
“We continue to disagree with the Tribunal’s findings in this case,” he added. “That being said, we accept the decision of the Federal Court of Appeal and we will not be pursuing a further appeal in this matter.”
The bureau had 60 days to challenge the decision to the Supreme Court of Canada, something one analyst at National Bank said was unlikely.
The decision seals the deal’s legal saga. With the CRTC having already approved the broadcasting part of the deal and with the competition portion handled, it is finally up to the innovation minister, whose office manages spectrum auctions and transfers, to decide whether Freedom’s assets should be transferred to Videotron to begin Rogers’s acquisition of Shaw.
It is a decision the minister said today will be made in “due course.”
The three-justice panel of the Federal Court of Appeal took just under three hours after noon to come to the decision, reading the decision from the bench without having heard oral arguments from the merging parties.
The court rejected the argument that the Competition Tribunal erred in the steps of its analysis when it approved the deal. The bureau said it should’ve analyzed the Rogers and Shaw deal first and the Freedom sale next, with the onus on the merging parties to outline how the sale would alleviate competitive concerns with the main deal.
But the court agreed with the tribunal and the merging parties that such an analysis does not make sense because Rogers would never be able to own Freedom in a hypothetical situation because the minister said he will not let that happen.
