Competition Tribunal and Competition Bureau are in competition

In Canadian business regulation circles, the Competition Tribunal is supposed to be the legal arm of the Competition Bureau, ruling on competition cases brought to it by the Bureau. In the case of the ongoing Rogers Communications takeover of Shaw Communications, however, the two competition bodies seem to be directly competing with each other.

In a rushed announcement late on the Thursday before the end-of-year long weekend, the Tribunal ruled this last week that the merger of the two big telecoms was "not likely" to lead to higher prices for Canadian customers and so should be allowed to proceed, even though it appears at first blush to result in less competition in the field (the infamous "efficiencies defence"). 

This week, though, the Bureau has called on the Federal Court of Appeals to overturn that decision, arguing that the Tribunal erred in how it assessed the deal, particularly in how it assessed Shaw's plan to hive off its Freedom Mobile cellphone business and sell it to Quebecor's Videotron, and also that it made fundamental errors of law. Ouch!

How can the two bodies be so out of sync? The Competition Commissioner Matthew Boswell, who heads up the Bureau, seems to be taking a brave and principled stand against a system that largely favours businesses over consumers. The Tribunal appears to be taking a lot of things on trust (e.g. that Quebecor, which currently only operates within Québec, will start to compete outside of its home turf), and completely dismisses out of hand the Bureau's legitimate concern that the merger will "likely result in consumers paying significantly higher wireless prices".

Many people have panned the Tribunal's hasty decision from a whole slew of different standpoints, despite the enthusiasm for the deal from Rogers, Shaw and even the CRTC (Canadian Radio-Television and Telecommunications Commission). No less than two cross-party parliamentary committees have concluded that the merger would leave consumers worse off, notwithstanding the Freedom Mobile hive-off, and notwithstanding  the Competition Tribunal's inexplicable ruling. 

Which leaves us with the question: what is the use of a competition regulator if it doesn't regulate on behalf of the lowly consumer?