The Competition Tribunal

Late Friday evening (or very early Saturday morning), Rogers and Shaw issued a joint press release in response to having received notification that the Commissioner of Competition intended to file applications to the Competition Tribunal opposing the companies’ proposed merger.

A number of people may not understand what this means, so I will try to sort out the players.

The Competition Tribunal is “a specialized tribunal that combines expertise in economics and business with expertise in law”. Members of the tribunal are appointed by the Cabinet, but are independent of any government department”.

The Governor in Council appoints judicial members from the Federal Court on the recommendation of the Minister of Justice. Lay members are appointed by the Governor in Council on the recommendation of the Minister of Innovation, Science and Economic Development. They provide expertise based on their individual backgrounds in economics, business, finance, accounting or marketing. Lay members are appointed on a part-time basis.

The members are appointed for fixed terms of up to seven years and may be reappointed. One of the judicial members is appointed Chairperson of the Tribunal by the Governor in Council.

There are 5 judicial members of the panel, but interestingly, the Tribunal’s website indicates that terms expired last week (April 29) for 2 of the members, including the Chair, The Honourable Mr. Justice Denis Gascon.

Procedurally, the Tribunal hears applications for orders under Part VIII of the Competition Act (Matters reviewable by the Tribunal) in panels of three to five members. A judicial member presides at the hearing and there is at least one lay member on the panel.

There is a formal protocol defining the separation between the Commissioner of Competition and the Tribunal. Notably, the Tribunal is defined as “strictly an adjudicative body that operates independently and at arm’s length from the Government of Canada, its departments and the Commissioner.”

So, the Commissioner of Competition carries out competition related investigations independently with the support of Competition Bureau staff, but that body is independent of the Tribunal. “At all times, the Parties will strive to ensure that any interactions will not create potential or future conflicts of interest, or undermine the public perception of the Parties’ independence and impartiality.”

If it is helpful, think of the separation of roles between the police and the judicial court system. Under this metaphor, the Competition Bureau is the police force, the Commissioner is the Chief of Police, and the Competition Tribunal is the Court. The position of “Commissioner of Competition” used to be known as the Director of Investigation and Research, which was more descriptive of the role played in cases such as this merger.

I’ll have more on this in the coming weeks.

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