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The Competition Bureau’s continuing and, to date, fruitless crusade against telecom takeovers now has a price tag.

Lawyers for the federal regulator and its opponents at Rogers Communications Inc. RCI-B-T, Shaw Communications Inc. SJR-B-T and Quebecor Inc. QBR-B-T have billed more than $30-million for their services. The meter is still running, as the two sides prepare for the bureau’s appeal of last month’s Competition Tribunal decision that came down squarely in the telecom companies’ favour. Taxpayers are likely to pay a significant portion of those fees.

The cost that can’t be measured, yet one that dwarfs the legal bills, is the price Canada pays for being a country where stuff just doesn’t get done. From cellphones to pipelines to national securities regulators, government red tape and petty agendas are getting in the way of doing business.

CEOs and institutional investors look at a $20-billion Rogers bid for Shaw that’s coming up on its second birthday and see a transaction that’s now being needlessly blocked. That perception shapes the way capital gets allocated. In a country that needs to invest billions of dollars in essential infrastructure – 5G cellphone networks, the transition to green energy – the bureau’s intransigence is sending the wrong message.

The biggest legal bill for work on this case came from the bureau’s team of seven lawyers, who put a $10.9-million price tag on their services, if they won the case and the telecom companies had to shoulder the cost. Lawyers for Shaw at Davies Ward Phillips & Vineberg LLP billed $9.7-million for the tribunal process, while Rogers counsel at Lax O’Sullivan Lisus Gottlieb LLP came in at $8-million and Videotron’s lawyers at Bennett Jones LLP cost $1.95-million. The bills were itemized – while we’re in an electronic age, Rogers still needed to spend $114,000 on printing documents.

We’re now at the tilting-at-windmills phase of the legal battle as, like Don Quixote, Commissioner of Competition Matthew Boswell has little chance of winning the legal battle, according to industry experts. In a report on Monday, analyst Maher Yaghi at Bank of Nova Scotia said the three-member team at the tribunal, led by veteran competition lawyer Paul Crampton, wrote a decision that gutted Mr. Boswell’s case and leaves few openings for a successful appeal.

To sum up in a few lines what lawyers devoted five weeks and 2.6 million documents to arguing, Mr. Yaghi pointed out that the bureau needed to prove its allegation that Rogers’s takeover of Shaw, and the sale of Shaw’s Freedom Mobile business to Quebecor, would result in a substantial lessening of competition in the cellphone market. The tribunal said the bureau failed to do this.

In addition, Mr. Yaghi pointed out that the bureau argued the burden of proof should be on the telecom companies – that Rogers, Shaw and Quebecor needed to show that the deal would not lessen competition. And the tribunal ruled the companies achieved this goal, by demonstrating cellphone users will still see four national companies battling for market share. “Overturning this decision is not easy and hence we continue to believe that closing of the transaction is the most likely outcome,” Mr. Yaghi said.

The bureau is now running up millions in legal bills, and introducing needless uncertainty in telecom markets, trying to appeal a decision co-written by one of the country’s top experts on competition policy. Prior to joining the tribunal in 2010, Mr. Crampton literally wrote the book on the subject – he is the author of the country’s leading textbook on competition law. Formerly a top lawyer on Bay Street, he spent two years advising the Paris-based Organization for Economic Co-operation and Development on competition issues, and is past chair of the Canadian Chamber of Commerce’s task force on competition law.

As the court battles continue, Industry Minister François-Philippe Champagne would be justified in asking the bureau just whose interests are now being served, outside the lawyers. Mr. Champagne has already set down consumer-friendly standards for approving the Rogers transaction. He’s launched a review of Canadian competition policy, an agenda Mr. Boswell has pushed since taking the top job at the bureau in 2019. And as he travels the globe telling companies to invest in Canada, Mr. Champagne is acutely aware of the perils that come with being known as a bad place to do business.

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