Canadian Lawyer

June 2021

The most widely read magazine for Canadian lawyers

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Page 27 of 35

26 LEGAL REPORT IT'S NOT a surprise that, within a few days of Rogers Communication's announcement on March 15 that it had an agreement to acquire rival Shaw Communications in a blockbuster deal worth $26 billion, Canadians would notice. Indeed, not long after that announcement, the Competition Bureau Canada, which investigates whether such megadeals could decrease competition in the industry, said it received an unprecedented amount of online feedback. The transaction would combine Canada's two largest cable operations, which are also rivals in the wireless sector. If nothing else, we are passionate about cable and wireless services, especially anything that could raise the prices for these services. "The Competition Bureau is receiving a higher-than-normal number of online ques- tions and feedback following the announce- ment of Rogers' proposed acquisition off Shaw," the regulator said in an online post. It added that the bureau "will review the proposed transaction" and encourages the public to share its views online, as it cannot take phone calls CORPORATE COMMERCIAL All eyes on Canada's Competition Bureau The proposed blockbuster deal between Rogers Communications and Shaw Communications is shining a new light on the competition watchdog, writes Zena Olijnyk because of the COVID-19 pandemic. As the business world in Canada and abroad turns to megadeals and consolidation to increase profits and become more efficient, these transactions also have the potential to transform key industries. But there is also concern about whether this will erode compe- tition and, as a result, force consumers to pay more for services. The result is that, these days, Canada's competition bureau is getting noticed. With an annual budget of just less than $52 million — a figure that has dropped in real and absolute terms over the last few years — lawyers who specialize in competition law acknowledge that the competition bureau has its work cut out in investigating a growing number of more complex transactions. Some of these deals are in disruptive digital sectors that often involve more than one regulatory body, such as the Canadian Radio-television and Telecommunications Commission. Others also wonder if it is time to look at laws and regula- tions governing the bureau to see if there can be improvements in some key areas. Neil Campbell, a partner in the interna- tional trade, competition, antitrust and foreign investment practice at McMillan LLP, says the bureau is "an under-resourced agency" given the work it does not only on mergers but other anti-competitive practices, such as price fixing. In today's economy, "the amount of work has increased, and the funding [of the bureau] has not kept pace," he says. "The world is more complex, and a lot more time is needed to effectively deal with the large quantities of electronic documents in complex cases." "The economy is transforming," says Navin Joneja, a partner at Blake Cassels & Graydon LLP, "and I think COVID has really acceler- ated a lot of the digitization of businesses. And so, you must sometimes view these particular issues through a competition lens; but a lot of times, they also bring up other public policy issues, like privacy and misinformation." Campbell's colleague at McMillan, partner James Musgrove, agrees, noting that the bureau's budget is now about $2 million lower than it was a decade ago. Staffing at the bureau is also lower, with about 380 people compared to about 440. "On top of that, the world is complicated

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