The public hearing that will determine the fate of Rogers Communications Inc.’s RCI-B-T proposed $26-billion takeover of Shaw Communications Inc. SJR-B-T has turned out to be not so public after all – despite the Competition Tribunal committing to an “open court process.”
Because of its potential implications for users of critical wireless and internet services, the merger of Canada’s two largest cable companies has attracted far more public attention than most hearings held by the Competition Tribunal, a quasi-judicial body that adjudicates on matters of civil competition.
Many observers describe the hearings thus far as opaque and are calling for more transparency in the tribunal process. Repeatedly, during the first week of hearings, lawyers for both the cable companies and the Competition Bureau, which is attempting to block the merger, asked the judge to go into confidential sessions that have dragged on for hours. In addition, critical documents such as witness statements and the schedule of witnesses are not available to the public.
“For those of us who are following along – even those of us who are deep in the weeds – it’s been very hard to follow, and it’s been surprising to hear them referring to a number of public witness statements that hadn’t been posted on the tribunal’s webpage,” said Ben Klass, a telecom researcher and PhD candidate at Carleton University.
The immense public interest in the case has brought added scrutiny to a tribunal used to operating, for the most part, out of the public eye.
“I don’t know that people have ever paid attention to a merger case like this before,” said Jennifer Quaid, an associate professor at the University of Ottawa’s Faculty of Law.
The virtual proceedings have attracted hundreds of audience members – a contrast to the scarcely attended hearings usually run by the tribunal, which, when run in person in Ottawa, are less accessible to the general public, said Michael Osborne, a competition lawyer at law firm Cozen O’Connor.
“Usually, you go in camera and there’s no one to kick out,” Mr. Osborne said. “You look around and say, ‘Yeah, we’re good.’ ”
In its policy on privacy and openness, the Competition Tribunal says it conducts its oral hearings in public, save for exceptional circumstances, to foster transparency and accountability. But it is common for much of these proceedings to be “in camera,” or hidden from the public.
When submitting evidence, companies and the bureau are able to keep materials private if they contain sensitive business information, such as detailed financial or customer information or minutes of board meetings. For these hearings, the tribunal has extended that to include information relating to spectrum (the airwaves used to transmit wireless signals), network planning and negotiations with suppliers about rates.
Mr. Klass said he understands the need to foster an environment where witnesses are forthcoming, so that the Competition Tribunal can arrive at the best possible outcome.
“But there’s a balancing act at play here,” he said. “Perhaps there needs to be some recognition that when a transaction that touches so many issues that invoke the public interest takes place, there should be some allowance made for the special nature of that event.”
With merger cases often coming with tight schedules, the tribunal has always been “very willing” to take public information off the public record rather than spend time challenging requests for confidentiality, Mr. Osborne said. The bureau itself could also challenge these claims, but it, too, is busy preparing its own case, he added. As a result, he said, it is likely that more material is presented out of public view than should be.
While keeping certain information private is justified, Mr. Osborne said that he has “thought for a long time that the tribunal should be more activist in requiring that there be a basis for claims of confidentiality.”
An indirect effect of the case is that it’s shining a light on how the Competition Tribunal operates – and some observers might not like what they’re seeing, Prof. Quaid said.
When members of the public watch a cross-examination but they “only know half the story,” because witness statements were not posted online in advance, that “makes a mockery of having a public hearing,” she said.
“Maybe this will be the impetus to say, ‘Hmm, is this the best we can do for having a process that allows us to examine and come to decisions about allegations of anti-competitive behaviour, or is there maybe another way?’ ” Prof. Quaid said, adding that the Competition Tribunal could be more nimble and less procedure-heavy.
“The tribunal has never worked very well. … I think that a hard look needs to be taken at the structure.”
Vass Bednar said that excluding the public from portions of the hearing should be better rationalized.
“We should be heartened by the significant public interest in this merger,” said Ms. Bednar, the executive director of McMaster University’s master of public policy in digital society program and a senior fellow at the Centre for International Governance Innovation.
“We have an opportunity to make these processes more open and accessible.”