As it stands, nothing suggests the efficiencies defence will be invoked in either case. But there is always the possibility – especially now the Rogers-Shaw merger is. Theoretically, Rogers and Shaw could use the defence and fight all the way to the Supreme Court.
Much like the originalists who adore the U.S. Constitution, some people view Section 96 as something close to scripture – it is a beautiful thing and doesn’t need to change. Others think the section should be treated more like Canada’s constitution – a living tree that evolves with the times. That’s the commonly accepted view, but Lawson Hunter, Canada’s Competition Commissioner in the 1980s said in an interview there’s more to it. He was one of the act’s architects, and there was a broad goal “to create something that had standards, that had some predictability.” Efficiencies could be proven with an economic model.
Despite the outcry in legal circles, the federal government didn’t pay much attention for a number of years. But then Mr. Boswell started making some hay last fall, and around the same time, Edward Iacobucci, the former dean of the University of Toronto’s faculty of law, put out a deeply researched paper advocating for changes to the Competition Act.
Despite this momentum, which helped prompt Ottawa’s official review of the act, developments in the United States have complicated things. In January, the U.S. Department of Justice and the U.S. Federal Trade Commission – both of which handle antitrust and competition policy – launched their own reviews of the American framework, and there are some arguably radical considerations.
I’m expecting cell phone bills to climb.
If we had good takeover laws, this merger would.never have been considered by these greedy oligopolists.
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