By Ahmad Hathout
OTTAWA – The Competition Bureau will argue later this month that the Competition Tribunal erred in the steps it took when it determined that there would be no lessening of competition if Rogers is allowed to purchase Shaw.
In an amended appeal filed Friday, the competition commissioner, through the attorney general, said the tribunal navigated the primary question of whether such a merger would lessen competition incorrectly.
The commissioner said the tribunal incorrectly combined the analysis of both the Rogers-Shaw merger with the remedy sale of Shaw’s Freedom assets to Videotron, rather than first evaluating the competition questions for the former and then the latter.
The commissioner said this two-step approach is required by the Competition Act and is confirmed by precedent.
“The Tribunal should have analyzed whether the Proposed Transaction was likely to cause [a lessening of competition], and then it should have analyzed whether the Proposed Divestiture was an effective remedy,” the commissioner argued.
The commissioner said this combined analysis incorrectly placed the burden on him to show that the main purchase and the divestiture would likely cause a lessening of competition, when by law the commissioner only needed to show that the main transaction would have lessened competition; it would then be up to Rogers and Shaw to show that the divestiture is effective to alleviate competition concerns of the primary deal.
The commissioner will also argue that the tribunal did not “properly determine the magnitude of the price increase and failed to consider the duration and scope of any price or non-price effects” in its analysis.
The amended appeal came after a brief conference call that determined that January 24 will be the hearing date of the appeal. The bureau had filed its appeal the day after the tribunal announced that it would deny the bureau’s challenge late last month.
The Federal Court of Appeal granted it a temporary suspension of the tribunal’s decision until the outcome of this appeal.
Earlier today, TekSavvy called on Innovation Minister Francois-Philippe Champagne to step in and block the deal because it includes a mechanism for Videotron to lease network space from Rogers for below market rates.
Champagne has said he will await the conclusion of the appeal.
Screenshot of Commissioner of Competition Matthew Boswell
