Photo: The Canadian Press
OTTAWA — The Federal Court of Appeal has dismissed the Competition Bureau’s effort to overturn a key approval of Rogers Communications Inc.’s takeover of Shaw Communications Inc.
Court of Appeal Justice David Stratas said Tuesday the arguments by the bureau don’t meet the threshold of a palpable and overriding error going to the core of the case that would be required to overturn the decision by the Competition Tribunal to approve the $26-billion deal.
“This is a high threshold. It is not enough to pull at leaves and branches and leave the tree standing, rather the entire tree must fall,” he said, delivering a decision from the bench before the companies involved had given their response.
The Competition Tribunal made it clear the transaction would not likely prevent or substantially lessen competition, supported by ample evidence, said Stratas.
“Even if the Competition Tribunal erred on the narrow legal points the commissioner now raises in this court, we are not persuaded that the result could have been different. Thus it would be pointless to send this case back to the Competition Tribunal.”
The Competition Bureau’s arguments had focused on what they said were four key legal errors that focused especially on how the proposed sale of Shaw’s Freedom Mobile to Videotron factored into the tribunal’s decision.
Some of the points raised by the bureau were disputed as a combination of issues of fact and law, while the Court of Appeal can only look into matters of law, said Stratas.
“The Commissioner appears to be inviting us to reweigh the evidence, which we cannot do.”
The deal, which Rogers hopes to close by Jan. 31, still requires approval from Industry Minister François-Philippe Champagne.
Champagne said in a statement that he was reviewing the Federal Court of Appeal’s decision and will be making a decision on the deal in due course.
“Promoting competition and affordability in the telecom sector has been – and remains – my top priority,” he said.
The Competition Tribunal approved the deal on Dec. 30 at the end of more than four weeks of hearings, while Rogers and Shaw first announced the deal in March 2021.
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