Rogers and Shaw accused of ‘abuse of process’ by competition commissioner

Firms charged with ‘fishing expedition’ for serving subpoenas ahead of proposed merger hearing

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The federal competition commissioner has accused Rogers Communications Inc. and Shaw Communications Inc. of « abuse of process » and conducting a « fishing expedition » by serving subpoenas on rival Telus Corp. demanding documents « on the eve » of a November 7 hearing in the Competition Bureau’s challenge to the two companies’ proposed $26 billion merger.

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“The subpoenas describe the documents in general terms and would serve only to fish in the hope of finding relevant information,” says an October 17 filing released late Tuesday by the Competition Tribunal, which will hear the challenge. by the Competition Bureau of the merger starting next month.

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Telus has filed a motion to quash the requests for production of documents in the subpoenas, according to documents filed on the Competition Tribunal’s website, and the commissioner’s filing indicates that he agrees with the relief sought. by Telus.

The documents subject to the subpoena include those dealing with network and spectrum sharing agreements between BCE Inc. and Telus, the proposed sale of Shaw’s Freedom Mobile wireless division to Videotron, a subsidiary of Quebecor Inc., and board discussions of network outages experienced by Telus in 2019 and 2020, according to a filing by Telus on Oct. 13.

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“The Tribunal should not allow subpoenas to be used as a fishing expedition,” said the Oct. 17 filing titled Commissioner’s Response, in which the competition watchdog argues that subpoenas are “too broad and unnecessary” and, furthermore, contain requests for certain documents that Rogers and Shaw already have.

« Any relevant documents not already in the possession of Rogers and Shaw are unlikely to be relevant and material to the issues the Tribunal must decide. »

The Tribunal should not allow subpoenas to be used as a fishing expedition

Both subpoenas were served on Nazim Benhadid and Charlie Casey, according to the filing. The LinkedIn profiles corresponding to these names belong respectively to the vice presidents of planning and engineering and finance of Telus.

An affidavit signed by Daniel Stern, director of regulatory law and policy at Telus, says submissions the phone company made to the Competition Bureau as part of the investigation into the Rogers-Shaw merger and planned sale from Freedom Mobile to Videotron contain a significant amount of confidential and highly sensitive information relating to its activities – including those outside wireless – and its strategy.

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Moreover, he said, the witnesses subpoenaed at Telus are not part of the board or the management team, so it is “highly unlikely” that they were involved in the preparation of the documents sought by Rogers and Shaw, “nor will they be in a position to speak to them.

The Competition Commissioner’s October 17 filing argued that it is not enough for the merger partners to assert that the Telus witnesses subject to the subpoena may have evidence relevant and material to the hearing. .

“Rogers and Shaw must satisfy the Competition Tribunal that there is a substantial basis to believe that the requested documents are relevant and material,” the filing says, noting that the deadlines for Rogers and Shaw to obtain this information appear to have expired. .

« The subpoenas requested by Rogers and Shaw constitute an abuse of process because Rogers and Shaw are engaged in a fishing expedition, which is very problematic, especially on the eve of the trial. »

Rogers and Shaw declined to comment on the filings.

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