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Lawyers for Rogers Communications Inc. are requesting that the Federal Court of Appeal dismiss the Commissioner of Competition’s appeal of a tribunal decision to approve its $26-billion merger with Shaw Communications Inc., arguing that the Commissioner’s claims of legal errors are flawed and that the merger is “pro-competitive.”

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In a 35-page court filing, Rogers said that even in the “unlikely” event the Commissioner could persuade the court that the Tribunal made legal errors in its decision, there would still be “no basis” to refer the matter back to court, as it would not meet the test of a “substantial wrong or miscarriage of justice.“

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On Dec. 29, the Competition Tribunal dismissed the Commissioner’s attempt to block the deal, which he followed by filing an injunction and appeal. The court of appeal granted an emergency interim stay on the tribunal’s approval of the merger, blocking the deal from closing until the appeal is heard.

“It is difficult to understand why the Commissioner is not satisfied with the pro-competitive result he achieved by opposing the Rogers/Shaw merger,” Rogers’ legal counsel said in a memorandum of fact and law filed to the appeals court on Jan. 18. “Respectfully, this pro-competitive transaction has been delayed long enough and must be allowed to proceed.”

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Rogers and Shaw have extended the outside date for the merger’s closing to Jan. 31 from Dec. 31. The telecom giants had originally expected to close the transaction in the second quarter of 2022.

Lawyers for Rogers stressed during the weeks-long tribunal hearings that if a decision wasn’t reached before Dec. 31, the company would have to pay out an additional $250 million to bondholders.

The Competition Bureau, in its memorandum of fact and law filed Jan. 13, alleged the Tribunal “made four legal errors” in its decision, and that a different outcome would have been reached if the “legal errors” were not made. But Rogers’ lawyers rejected that suggestion.

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“His claims of profound legal error and calamitous policy implications are unhelpful rhetoric,” Rogers lawyers said.

The Bureau’s lawyers are focusing their appeal argument around the divestiture agreement — in which Quebecor Inc. subsidiary Vidéotron would purchase Shaw’s Freedom Mobile for $2.85 billion — as a proposed remedy to the transaction, which they said was only filed three months after the application to block the merger.

The court is scheduled to hold the appeals hearing on Jan. 24, which will be open to the public virtually at 9:30 a.m. There is no time frame as to when a decision on the appeal will be made.

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