Despite legal costs awarded to Rogers-Shaw, the competition commissioner’s challenge to the telecom merger was not a waste of taxpayer money

• On Aug. 28, the tribunal ruled that the commissioner’s approach to block the merger was “unreasonable,” although the Competition Bureau stands by its decision to challenge it.
• Since the costs will be covered by the Competition Bureau’s tax-funded budget, some think the commissioner was wrong to challenge the merger.
• Since winners typically get some of their legal costs covered, it was never a question of whether Rogers and Shaw would be awarded compensation, but how much.

How costs are calculated

• In competition cases, the tribunal has the final say on costs.
• To better understand the tribunal’s decision we need to distinguish between two categories of costs: disbursements and legal fees.
• Since tariffs have not kept pace with increasing legal costs, it has become more common for amounts to be calculated as a percentage of actual fees.
• Regardless of the method used, however, the reimbursement is meant to cover only some of the actual legal fees incurred.

The tribunal’s decision

• However, it’s important to put this part of the tribunal’s decision in perspective.
• Its impact on the $13 million total was very small, since the vast majority (about 94 per cent) of it was for disbursements, not legal fees.
• The tribunal also chose to impose the lower of two estimates that Rogers and Shaw proposed.
• “It was by no means vexatious or irresponsible of him to [continue to pursue the case].

Contested cases are uncertain

• Enforcement agencies like the Competition Bureau have a duty to pursue cases they consider to be well-founded and in the public interest.
• Fighting uphill battles that require sophisticated arguments, or test new theories, are part of the job.
• As people assess whether Boswell’s legacy should be continued, it’s important to base it on more than a few misunderstood lines in a judgment.