LOLG Successfully Defends Rogers’ $26 Billion Acquisition of Shaw before the Competition Tribunal and Federal Court of Appeal
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On January 24, 2023, the Federal Court of Appeal dismissed an appeal from a landmark decision of the Competition Tribunal dismissing an application from the Commissioner of Competition to block the Rogers' acquisition of Shaw Communications Inc.—one of the largest telecommunications merger in Canadian history. LOLG acted for Rogers before the Tribunal and the Federal Court of Appeal.
In reasons totalling 80 pages in length, the Competition Tribunal concluded that the transaction—which includes the sale of Freedom Mobile to Quebec-based Videotron—will enhance and promote competition in both wireline (Internet, cable television and home phone) and wireless (cell phone) markets across Canada. This decision was the culmination of an intense trial process, during which the Tribunal heard from over 40 lay and expert witnesses on a tight chess-clock, with nearly 2,000 documentary exhibits. Having found that the Commissioner did not discharge his burden of proving that the transaction will substantially lessen competition, the Tribunal found it unnecessary to consider Rogers’ efficiencies defence.
The Federal Court of Appeal dismissed the Commissioner’s appeal, which alleged several legal errors in the Tribunal’s decision. The unanimous panel found those allegations to be “without merit”, and concluded that the Tribunal’s findings and determinations were “unshakeable”. The Commissioner confirmed that he will not seek leave to appeal to the Supreme Court of Canada, bringing a formal end to his legal challenge.
The decisions establish important precedents for merger review and litigation, particularly surrounding the burden borne by the Commissioner, s. 92 of the Competition Act. It is also an example of a rigorous review of price and non-price effects arising from a merger under s. 93 of the Competition Act, including in its review of expert evidence.
This case was heard on a highly expedited basis. With close case management of the Tribunal’s Chair, Justice Andrew Little, and the Chief Justice of the Federal Court of Canada, Paul Crampton, this matter was expedited from pleadings to final decision in less than eight months with a full discover process and several contested motions. The Commissioner’s appeal was also expedited by the Federal Court of Appeal’s senior puisne judge, Justice David Stratas, which was expedited to a decision less than four weeks after the Commissioner served his Notice of Appeal.
The decisions are available at the links below.