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THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, RSC 1985, c C-34;
CT-2022-002
AND IN THE MATTER OF the proposed acquisition by Rogers Communications Inc. of Shaw Communications Inc.;
AND IN THE MATTER OF an application by the Commissioner of Competition for an order pursuant to section 92 of the Competition Act.
BETWEEN:
COMMISSIONER OF COMPETITION
and
ROGERS COMMUNICATIONS INC. SHAW COMMUNICATIONS INC.
Applicant
Respondents
and ATTORNEY GENERAL OF ALBERTA VIDÉOTRON LTD. Intervenors ______________________________________________________________________________
WRITTEN REPRESENTATIONS OF THE COMMISSIONER (Respondents’ Motion to Strike Commissioner’s Witness Statements) ______________________________________________________________________________
OVERVIEW
1. The Commissioner opposes the Respondent’s motion to strike certain paragraphs of the witness statement of Blaik Kirby, Charlie Casey, Christopher Hickey, Denis Albert, Nazim Benhadid, Sameer Dhamani, Stephanie Assad, Stephen Howe and Sudeep Verma (“Disputed Paragraphs”). There is no basis to declare any portion of these witness statements inadmissible as improper lay opinion evidence or hearsay. This is nothing more than a defensive move by the Respondent to respond to the Commissioner’s motion to strike.
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2. The Respondent has been candid and open in its contention that its motion is in response to the Commissioner’s motion to strike certain paragraphs from the Respondent’s witness statements. In so doing, the Respondent has put forward a laundry list of items, many of which mischaracterize the evidence or for which there is no basis to complain. This is nothing more than a defensive move on the part of the Respondent to drown out the Commissioner’s motion to strike.
3. Regardless, the Disputed Paragraphs can be categorized under two headings, namely inadmissible lay opinion evidence (Category 1) and inadmissible hearsay evidence (Category 2) and concerns that are entirely without merit, either because they misrepresent the evidence or fail to properly describe the purpose for which it was tendered (Category 3).
4. As it relates to lay opinion evidence (Category 1), the Respondents take a very narrow view on the evidence that can be provided by a lay witness. The Commissioner is of the view that a lay witness may express opinion evidence where they have personal knowledge of the observed facts and where they testify to facts within his or her observation, experience and understanding of events, conduct or actions. Thus, where a witness, for example, is responsible for marketing in a given wireless company or operates retail stores that offer wireless product, they can speak to the competitive landscape within which they operate in. The witnesses’ observations and perceptions regarding the competitive landscape is either evidence of fact or, alternatively, it satisfies the test for admissible lay opinion evidence.
5. On the issue of hearsay evidence (Category 2), three of the Commissioner’s witnesses rely on external market information. In one case, such as the Bell witness, it relies on the only market information available by a third-party service provider. The source data has been validated by Bell and is used to generate analysis in the normal course of business. The Commissioner contends that this evidence is an exception to the hearsay rule in that it is both reliable and necessary. In another witness statement, a dealer that has retail stores uses information obtained from an association to which he belongs and for which he forms part of, to draw certain conclusions. This is the witness’s evidence and is not hearsay evidence as contended by the Respondent. The witness had a direct hand in the creation of that data. In a third case, the witness relies on a trustworthy publication that contains market information on the wireless sector. The Commissioner contends that this evidence is an exception to the hearsay rule in that it is both reliable and necessary
6. Beyond these two categories, there is a third category of complaints that are beyond the pale of reasonability and without an ounce of merit (Category 3). For instance, there is a witness from a Bureau officer that speaks to how input was received from consumers and stakeholders and how it issues and gathers responses to the RFIs. The evidence is not tendered for the truth of the content of the submissions received from consumers/stakeholders or the responses received to the RFIs. The evidence speaks only to the process of gathering views and information. In both cases, the Respondent contends that the Commissioner is not entitled to speak to the processes, without producing a witness statement from the consumer/stakeholder or the persons that provided responses to the RFI.
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7. The chess clock is hanging over the heads of the parties to this proceeding and this should inform the Tribunal’s approach to these motions. To the extent that there is clearly inadmissible evidence in the witness statements, the Tribunal must be strike it out on a preliminary basis, prior to the hearing. To the extent that the evidence is admissible, the Tribunal should communicate that to the parties and rule on the motions. A Tribunal process that is encumbered by a litany of objections is not in the interest of justice or the Tribunal process. To the extent that the evidence sits on the margins of what is admissible, the Tribunal can defer the ruling to the hearing.
8. As it relates to the Respondent’s complaints in this motion, the Commissioner contends that the motion should be dismissed in its entirety.
PART II: SUMMARY OF FACTS 9. There is a very compressed schedule in these proceedings. The terms of the Scheduling Order call for witness statements and responding witness statements. All parties have filed evidence.
10. Shortly after receiving the witness statements, the Commissioner apprised the Respondents, Rogers and Shaw, that there were paragraphs in their witness statements that were inadmissible, either on the grounds that they are hearsay or that they are opinions that a lay witness is not entitled to make.
11. An invitation was extended for the Respondents to remove the offending paragraphs. Both refused to adhere to the request.
12. Instead, the Respondent, Shaw, made it clear that if the Commissioner pursued its motion to strike out the offending paragraphs, it too would bring a cross-motion, alleging the same complaints against the Commissioner.
13. As for the Respondent, Rogers, it gave notice that it would reply to the Commissioner’s motion. It also brought a new cross-motion for leave to file a new witness statement from Mr. McKinsey to rectify the deficiency found in the witness statement of Dean Prevost. This motion is opposed by the Commissioner.
14. As detailed above, the Respondents concerns are grouped by the Commissioner under three broad categories, namely concerns over the opinions of lay witnesses (Category 1), alleged inadmissible hearsay evidence (Category 2) and complaints that are entirely without any foundation whatsoever and border on the frivolous (Category 3).
PART IV: SUBMISSIONS
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A. The Legal Test: Lay Opinion Evidence (Category 1)
15. A lay witness may make an inference from an observed fact. 1 Opinion evidence from lay witnesses, including as to their own market conduct and the conduct of their own business in the competitive landscape, is admissible if a witness has personal knowledge of the observed facts and testifies to facts within his or her observation, experience and understanding of events, conduct or actions. 2 The Respondent, Shaw, fails to understand the extent to which lay opinion evidence is admissible.
16. The Supreme Court of Canada has recognized that "[t]he line between 'fact' and 'opinion' is not always clear". 3 The courts have developed greater freedom to receive lay witnesses' opinions when the witness has personal knowledge of the observed facts and testifies to facts within his or her observation, experience and understanding of events, conduct or actions. An officer of a company that is involved in developing marketing strategy for his or her company is therefore entitled to speak to his or her company’s marketing efforts as well as his or her understanding of the competitive landscape within which they operate.
17. The Federal Court of Appeal has echoed the very same thoughts as the Supreme Court of Canada. In the context of a Tribunal proceeding, the Court held that opinion from a lay witness is acceptable "where the witness is in a better position than the trier of fact to form the conclusions; the conclusions are ones that a person of ordinary experience can make; the witnesses have the experiential capacity to make the conclusions; or where giving opinions is a convenient mode of stating facts too subtle or complicated to be narrated as facts". 4 As such, when a witness has personal knowledge of observed facts such as a company's marketing efforts and the marketplace within which it deploys its efforts, its evidence may be accepted by a court or the Tribunal even if it is opinion evidence.
18. The only limitation in relation to lay opinion evidence is that is that lay witnesses cannot testify on matters beyond their own conduct and that of their businesses in the 'but for' world" and they are not in a better position than the trier of fact to form conclusions about the greater economic consequences of the 'but for' world, they have the experiential competence". 5 This makes an abundance of sense and sets the outer limits to what a lay witness may opine on.
1 R v Graat, 1982 CarswellOnt 101, [1982] 2 SCR 819, at para 14 (SCC); Commissioner’s BOA, Tab 1. 2 Canada (Commissioner of Competition) v Vancouver Airport Authority, 2018 Comp Trib 15 at para 10 (“VAA Prelim Motion”), Commissioner’s BOA, Tab 2; The Commissioner of Competition v Vancouver Airport Authority, 2019 Comp Trib 6 at para 146-47 (“VAA Merits”), Commissioner’s BOA, Tab 3. 3 R v Graat, 1982 CarswellOnt 101, [1982] 2 SCR 819, at p 12, Commissioner’s BOA, at Tab 1. 4 Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236 (“TREB FCA”), at para 79-81, Commissioner’s BOA, at Tab 4. 5 Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236 (“TREB FCA”), at para 79-81, Commissioner’s BOA, at Tab 4.
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19. Thus, when a witness had ‘an opportunity for observation’ and was ‘in a position to give the Court real help,’ the evidence may be admissible and the real issue will be the assessment of weight that is to be given to the evidence. 6 However, contrary to what is suggested by the Respondent, Shaw, allowing all matters to go to weight is also not an answer. Where the opinion is not something that could have been observed or experienced by the witness, and the witness offer opinion in respect of that matter, it is clearly inadmissible and cannot go to weight. This is an important difference between the respective position of the parties in these competing motions.
20. In the case of VAA, this Tribunal applied the guidance form the Supreme Court and understood that a lay witness could provide opinion on what he has acquired through personal knowledge, experience and observation. The Tribunal found in this case that, by virtue of their roles and responsibilities at their respective airline companies, the witnesses had the required personal knowledge, observation and experience to testify on the expected saving to be realized or expected to be realized by their companies, and the increased expenses allegedly incurred or expected to be incurred by their respective airlines, as a result of their inability to switch in-flight caterers at YVR. 7
21. The case of AstraZeneca Canada Inc v Apotex Inc also illustrates the point. 8 The issue was whether an affidavit filed on behalf of Apotex (“API”) contained impermissible opinion evidence. The impugned affidavit set out the lay affiant’s opinions with respect to three issues; namely: (i) the API Process uses the same process as claimed in [AstraZeneca’s] '994 Patent; (ii) neutral esomeprazole in a solid, crystalline form, as claimed in [AstraZeneca’s] '076 Patent, is used or produced in API's Process; and (iii) the optical purity of esomeprazole is increased at any stage during API's process by selectively removing racemic omeprazole, as claimed in [AstraZeneca’s] '184 Patent… 14 20. Justice Crampton rejected the request to strike the paragraphs and stated that he was satisfied that API’s affiant had not filed improper opinion evidence:
In my view, Dr. Horne simply provided factual information in his affidavit, primarily based on his knowledge of API's processes. To provide that factual information, he necessarily had to describe his understanding of the patents in question ... In describing his understanding of those patents, he simply and very briefly: (i) quoted the plain language in those patents; and (ii) stated his understanding of what each of those patents claimed. He spent a total of four sentences describing his understanding of [AstraZeneca’s] '994 Patent, five sentences describing his understanding of [AstraZeneca’s] '076 Patent, and seven short sentences describing his understanding of [AstraZeneca’s] '184 Patent. By contrast, he 9 spent nine full paragraphs describing API's Process, which was the clear focus of his affidavit.
6 Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236 (“TREB FCA”), at para 79-81, Commissioner’s BOA, at Tab 4. 7 The Commissioner of Competition v Vancouver Airport Authority, 2019 Comp Trib 6 at para 146-147 (“VAA Merits”), Commissioner’s BOA, Tab 3. 8 AstraZeneca Canada Inc v Apotex Inc, 2011 FC 505, aff’d 2011 FCA 211, Commissioner’s BOA, Tab 5. 9 AstraZeneca Canada Inc v Apotex Inc, 2011 FC 505, aff’d 2011 FCA 211, at para 34, Commissioner’s BOA, Tab 5.
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22. What the AstraZeneca Canada Inc v Apotex Inc case illustrates is that where the opinion is intrinsically linked to the subject matter to which a witness is entitled to testify and forms part of the body of knowledge that he likely has acquired through experience, the lay opinion evidence is admissible.
23. The Disputed Paragraphs in Category 1 do not constitute improper which the Commissioner claims constitute improper lay opinion evidence, as explained below.
Blaik Kirby
24. Blaik Kirby is Group President, Consumer and Small & Medium Business (SMB) for BCE Inc., (Bell). He led the teams responsible for sales, marketing and product development for Bell’s consumer and SMB wireless and wireline businesses. His responsibility included, amongst other things, understanding and responding to market and competitive dynamics in Canada’s wireless industry, including with respect to the pricing, competitive strategies and market positioning of Bell and its competitors. 10 He therefore has direct knowledge of Bell’s marketing efforts and, by necessity, knowledge of the competitive landscape within which Bell operates.
25. All of the impugned statement are well within the bounds of what Mr. Kirby can testify to given the position that he has occupied for decades.
Blaik Page 6; Kirby Para. 13
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13. In response to these “Big Gig” plans launched in 2017, Rogers and the other national wireless carriers introduced significant discounts and promotions on their own wireless plans throughout 2018 and into 2019.In our case, these included 10 GB plans (which was then the largest data bucket typically offered in the Canadian market) launched broadly for a brief time in December 2017 at prices $60 lower than those available before the Big Gig plans had been launched
See paras 1 and 2 of the Kirby Witness Statement.
This paragraph Mr.Kirby is contains inadmissible speaking to his opinion evidence. direct knowledge as an officer of A lay witness cannot Bell who is testify on matters involved in beyond their own marketing. He conduct and that of is speaking to their businesses. what he observed in Mr. Kirby, as an the Officer of Bell, is not marketplace in a position to opine and what he on the motivation of saw as a Rogers and other response to the wireless carriers in “Big Gig” roll launching certain out. He is not promotions. speaking to what motivated
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Blaik Page 10; Kirby Para. 20
Blaik Page 11; Kirby Para. 25
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Rogers and other competitors to make an offering. What Mr. Kirby believes is a market response to an offering made by Freedom is within his field of knowledge.
20. Shaw Mobile’s launch was highly This paragraph Mr.Kirby is successful. As of August 2020, we contains inadmissible speaking to his estimated that it already had approximately opinion evidence. direct in British Columbia and knowledge as Alberta. Shaw Mobile’s offerings were an officer of highly attractive to all consumer segments A lay witness cannot Bell who is including price-conscious consumers and testify on matters involved in multi-line family households. beyond their own marketing conduct and that of product. He their businesses. knows and has observed the Mr. Kirby, as an competitive Officer of Bell, is not marketplace, in a position to opine including the on the “success” of offerings of Shaw Mobile or Shaw. What whether the Shaw Mr. Kirby Mobile offerings believes is a were “highly market attractive”. response to an offering made by Shaw is within his field of knowledge. To the extent that he provides an approximate number, it can go to weight.
25. Without our wireline infrastructure and This paragraph Mr. Kirby is operations, Bell would not be as effective a contains inadmissible providing wireless competitor as we are today. My opinion evidence. evidence that experience in the Canadian rests entirely telecommunications industry indicates that on his is true for all integrated wireless A lay witness cannot experience in competitors in Canada, including testify on matters the wireless
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Shaw/Freedom Mobile. For example, I have observed that Videotron’s position as an integrated wireless and wireline competitor in Quebec, leveraging tactics such as cross-selling wireless services and offering large multiproduct discounts, has been essential to its ability to succeed as a disruptive competitor in that province.
beyond their own conduct and that of their businesses.
Mr. Kirby, as an Officer of Bell, is not in a position to opine on the alleged importance of wireline infrastructure “for all Integrated wireless competitors in Canada, including Shaw/Freedom Mobile”.
industry. He speaks to the relationship between the wireline asset and the offering of wireless services and the ability to capture clients from the wireline footprint. These are observations that he extends to the market at large, which is proper and for which he is entitled to make. The attack would have some merit if Mr. Kirby’s opinion was that Shaw/Freedom owe its entire success to the wireline asset. But that is not what he is saying. He is speaking in general terms to the relationship between wireline and wireless offerings and the ability to leverage the wireline footprint.
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Blaik Page 12; Kirby Para. 26
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26. Prior to the announcement of the This paragraph Mr. Kirby is Proposed Acquisition, Shaw Mobile was contains inadmissible responsible for beginning to play a similarly disruptive role opinion evidence. marketing at in Alberta and British Columbia. I expected Bell. He has Shaw Mobile to continue to play this role direct and to increase its impact on the market, A lay witness cannot knowledge of just as Videotron had done previously, testify on matters the given that it was in a similar position to the beyond their own competitive one occupied by Videotron when it conduct and that of landscape. He launched – namely, a well-capitalized their businesses. has observed company with a large established wireline that Shaw subscriber base, a well-established local Mr. Kirby, as an Mobile played brand, and a small wireless subscriber base Officer of Bell, is not a disruptive and market share. If the Proposed in a position to opine role prior to Acquisition does not proceed, I expect or speculate on the the Proposed Shaw Mobile will return to playing this “role” that Shaw Transaction. . disruptive role in the market. Mobile may play if He provides a the proposed further transaction between observations, Rogers and Shaw which he does not proceed. tempers with the words “expected” to suggest that this disruptive role in the competitive marketplace was, in his opinion, expected to play out in the future if the merger did not occur. This is based on his direct observations of their conduct in the competitive marketplace, prior to the Proposed Merger. Clearly within his filed of knowledge and proper.
Blaik Page 12; Kirby Para. 28
Blaik Page 13; Kirby Para. 29
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28. Based on my observation of the This paragraph Mr. Kirby is wireless market in Canada since 2008, I contains inadmissible responsible for consider that Rogers and Shaw are often opinion evidence. marketing each other’s closest wireless competitor. By wireless this I mean that Shaw’s competitive product for A lay witness cannot behaviour (pricing, promotions, etc.) in the Bell. He is testify on matters wireless market appears to be most heavily speaking to his beyond their own influenced by the competitive behaviour of observations conduct and that of Rogers and, conversely, that Rogers’ of market their businesses competitive behaviour appears to be most behaviour that heavily influenced by the competitive he has behaviour of Shaw.” Mr. Kirby, as an observed from Officer of Bell, is not competitors, in a position to opine such as Rogers or speculate on the and Shaw. His competitive job is to dynamics between observe the Rogers and Shaw. conduct of competitors in the wireless sector and respond with offerings. He is speaking to his assessment of the competitive behaviour of Rogers and Shaw which he has directly observed.
29. In the ordinary course of my day to day This paragraph There is responsibilities, I am regularly involved in contains inadmissible nothing assessing competitive initiatives in the opinion evidence. improper in market and, where appropriate, responding this paragraph. to them. This involves, for example, Mr. Kirby is a A lay witness cannot tracking changes to pricing or other marketing testify on matters changes to the offers of our competitors. In specialists, beyond their own doing so, I have observed and Bell’s employed by conduct and that of internal documents reflect that the impact Bell to their businesses. of Shaw on the market has most frequently understand the been seen in the first instance through its competitive impact on Rogers. Mr. Kirby, as an market and In other words, Officer of Bell, is not make changes in the offers available in the in a position to opine offerings. He market (such as the introduction of a on competitive has observed particular promotion or a reduction in the dynamics in the market cost of a wireless service plan) often result wireless market at conduct, from a change made by Shaw, to which large. Nor is he in a which is what
Blaik Page 13; Kirby Para. 32
Rogers then responds,
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32. I have also observed that Shaw has targeted areas where Rogers has long been the market leader – in particular, the Greater Toronto Area and the Greater Vancouver Area, where the combined market shares of Shaw and Rogers Shaw and Rogers compete closely in other areas of British Columbia, Alberta, and Ontario as well, and I expect competition between them to continue and to increase absent the Proposed Acquisition.
position to opine on the causal relationship between the promotional offerings of Shaw and Rogers.
he is paid to do. He is speaking to what he has observed in the market when Shaw has changed offerings. A cascading reaction that is followed by Rogers adjusting prices and then Bell.
This paragraph There is contains inadmissible nothing opinion evidence. improper in this paragraph. Mr. Kirby is a A lay witness cannot marketing testify on matters specialists, beyond their own employed by conduct and that of Bell to their businesses. understand the competitive Mr. Kirby, as an marketplace Officer of Bell, is not and respond to in a position to opine it with on the competitive offerings. He dynamics between has observed Rogers and Shaw. market Nor is he in a conduct, position to opine or which is what speculate on those he is paid to dynamics in the do. He is event the transaction speaking to between Rogers and what he has Shaw is not observed in completed. the competitive marketplace and, based on his knowledge, what he expects of the competitive landscape in the future. His
Blaik Page 14; Kirby Para. 33
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33. In British Columbia and Alberta this increase in the level of competition between Rogers and Shaw would result in particular from the recent launch of Shaw Mobile and its strategy of aggressively selling wireless services to Shaw’s existing wireline customer base. In July 2020, Bell estimated that
Our estimate
These are the customers that we observe are being targeted by Shaw Mobile.
last sentence is couched with “expect” which will go to weight. But he is better positioned to make these assessment than most, including the court.
This paragraph This paragraph contains inadmissible must be read opinion evidence. with paragraph 32, which the Respondents A lay witness cannot have not testify on matters included in beyond their own their conduct and that of submissions. their businesses. Mr. Kirby is speaking to the Mr. Kirby, as an competitive Officer of Bell, is not landscape that in a position to opine he has on the competitive observed. dynamics between That is his job. Rogers and Shaw. He has Nor is he in a observed the position to opine or marketplace speculate on the and is able to alleged causal opine, based relationship between on previous Shaw Mobile’s market product offerings and conduct that his perception of the he has directly competitive dynamic. observed, on the competitive landscape in British Columbia and Alberta. He is able to speak to how wireline assets are used to capture new clients in the
Blaik Pages 17- Kirby 18; Para. 43
Blaik Page 18; Kirby Para. 45
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43. Videotron’s primary competitive strategy and, I believe, a significant contributing factor to their wireless results in the province of Quebec has been their ability to cross-sell wireless services to their large existing Internet subscriber base and to offer large multiproduct discounts. This strategy plays a disproportionate role in Videotron’s wireless business. For example, an analysis I presented to
45. In addition to its ability to cross-sell services to its large existing customer base and offer large multiproduct discounts, Videotron’s results in wireless are supported by its strong brand in the province of Quebec and status as a local champion. For Videotron, all of these
wireless sector. This is a truth that he states in previous paragraphs applies to all companies that hold wireline assets.
This paragraph Mr. Kirby is contains inadmissible speaking to his opinion evidence. observations of the conduct of Videotron A lay witness cannot in the testify on matters competitive beyond their own marketplace. conduct and that of He is in the their businesses. field of marketing and Mr. Kirby, as an gets paid to Officer of Bell, is not track and in a position to opine observe the or speculate on offerings made Videotron’s by competitors competitive strategy and potential and its impact on competitors. Videotron’s wireless He uses that business. market information to make offerings for Bell. The cross-selling of services has been directly observed and is known to Mr. Kirby. Entirely proper lay opinion evidence.
This paragraph Again, Mr. contains inadmissible Kirby is an opinion evidence. officer of Bell that gets paid to market A lay witness cannot product and testify on matters services for
Blaik Page 19; Kirby Para. 47
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factors are unique to Quebec. For example, according to the
47. For these reasons, I do not expect that, if Videotron expands into other provinces, it could or would play the same large and disruptive role as it has done in Quebec, given that it will be very differently positioned. Rather, it is the combination of Shaw and Shaw Mobile that I would expect to play a more disruptive role in the market in Alberta and British Columbia.
beyond their own conduct and that of their businesses.
Mr. Kirby, as an Officer of Bell, is not in a position to opine on the factors that account for Videotron’s results in wireless. Nor is he entitled to opine or speculate on whether a competitor’s perceived strategy is likely to be successful in a different geographical market.
Bell. He must be attuned to the competitive marketplace as the officer responsible for sales and marketing. He has observed that Videotron has a recognizable brand name in the province of Quebec, which as a marketing officer, he is entitled to make. He is also entitled to speak to marketing strategies that he has observed in the marketplace of competitors, such as Videotron.
This paragraph Again, Mr. contains inadmissible Kirby is opinion evidence. providing observations on the A lay witness cannot competitive testify on matters marketplace. beyond their own He is entitled conduct and that of to conclude their businesses. In that Videotron particular, lay is a witnesses “are not in recognizable a better position than brand in the the trier of fact to Quebec form conclusions market. The about the greater Respondents economic also fail to consequences of the include para ‘but for’ world, nor 46 which do they have the
Blaik Page 19; Kirby Para. 48
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48. Moreover, I expect that even if Videotron expands into other provinces they will continue to prioritize retention and cross-selling to their large Internet and wireless subscriber base in Quebec, even at the expense of growth in other areas. This is because that has been core to their strategy and success, and because the Quebec market will continue to be most important to their financial performance.
experiential competence”.
Mr. Kirby, as an Officer of Bell, is not in a position to opine or speculate on Videotron’s future competitive performance or role in the wireless market if it acquires Freedom. Nor is he in a position to opine or speculate on the “role” that “the combination of Shaw and Shaw Mobile” may play in Alberta and British Columbia if the transaction between Rogers and Shaw does not proceed.
source internal Bell documents that have conducted an analysis on why it believes Videotron has encountered a measure of success in Quebec. He has observed that Videotron has leveraged wireline assets and engaged in cross-selling, matters that will not be available to it in the future. As a marketing officer, he is entitled to speak to his observations and the likely outcome in western Canada given what he has observed.
This paragraph Mr. Kirby, an contains inadmissible officer opinion evidence. responsible for marketing Bell products, has A lay witness cannot directly testify on matters observed the beyond their own market conduct and that of codnuct of their businesses. In Videotron in particular, lay the copetitive witnesses “are not in makretplace. a better position than He knows that the trier of fact to Videotron form conclusions performance is about the greater anchored in economic
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consequences of the ‘but for’ world, nor do they have the experiential competence”.
Mr. Kirby, as an Officer of Bell, is not in a position to opine or speculate on Videotron’s future priorities and strategy.
Quebec. An observation that is hardly controversial. He is speaking to what he “believes” will occur in the future and Videotron’s attempt to preserve the Quebec market share. A reaosnable conclusion based on a set of facts that are before him and that he has observed directly in the compeittive marketplace.
Christopher Hickey
26. In relation to Mr. Hickey, he is the Director, Regulatory Affairs at Distributel. He is responsible for the regulatory activities and functions of Distributel. Distributel is in internet service provider, a telecommunications service provider and a broadcasting distribution undertaking. 11
Christopher Hickey
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Page 6; Para. 14
14. Distributel does not view This paragraph duplicating Shaw’s existing contains inadmissible wireline broadband network opinion evidence. as practical or feasible.
See paras 1 and 2 of the Hickey Witness Statement.
A lay witness cannot testify on matters beyond their own conduct and that of their businesses.
Mr. Hickey, as an Officer of Distributel,
This objection is entirely unreasonable. Mr. Hickey is speaking to his company’s ability and desire to duplicate a wireline broadband network of a competitor. This is entirely within his field of knowledge. He is speaking to what
Christopher Hickey
Christopher Hickey
Page 6; Para. 15
Page 8; Para. 22
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15. As we demonstrate below, it would not be feasible to use Shaw’s regulated wholesale services to offer the wireline Internet service component of a wireline Internet and wireless service bundle similar to Shaw’s current bundled offering as doing so would result in insufficient or negative margins. With respect to off-tariff agreements, we note that Rogers has entered into only a very limited number of off tariff agreements.
22. The spreadsheet also sets out the additional costs that we expected to incur to offer a wireless service similar to the ‘Unlimited’ 25Gb wireless plan that Shaw offers in its wireline Internet and wireless service bundles (see column K of Exhibit I).
is not in a position to opine or speculate on the practicality or feasibility of wireless investments that could be made by other carriers.
This paragraph contains inadmissible opinion evidence.
A lay witness cannot testify on matters beyond their own conduct and that of their businesses.
Mr. Hickey, as an Officer of Distributel, is not in a position to opine or speculate on the feasibility of “us[ing] Shaw’s regulated wholesale services to offer the wireline Internet service component of … a bundle similar to Shaw’s current bundled offering”.
Distributel would not consider as an option.
Mr. Hickey is speaking to his company’s ability to offer services using Shaw’s wholesale services. He is not opining on Shaw, as suggested by the Respondents. He does not believe that given the pricing of wholesale services, acceptabe margins are feasible for Distributel. He is certainly in a position to speak tio what Duistributel could or would do given the whoelsale price offered by Shaw.
The concerns are entirely without merit. Mr. Hickey had discussions with Telus and has identified the source of the information in the affidavit, namely Telus. He has provided data, which is found in the spreadsheets. The source of the data is Telus and the manipulation of that data is that of
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The costs include a contribution towards selling, general, and administrative expenses.
Distributel, all of which is produced in a chart. The Respondent may cross-examine and question the source of the data that went into the charts that were produced by Distributel. At the end of the day, it can go to weight if the data is not validated objectively.
Nazim Benhadid
27. Mr. Benhadid is senior VP, network build & operate of Telus. He has 22 years experience across multiple services, including voice, wireless, and core infrastructure. He is responsible for all keys areas of wireless and wireline network build and maintenance. 12
Nazim Benhadid
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Page 3; Para. 5
5. A network is only as fast This paragraph contains as its slowest link. This is inadmissible opinion why TELUS’ wireline fibre evidence. infrastructure is an integral part of the wireless network A lay witness cannot performance and reliability. testify on matters beyond Without a fibre network,
Benhadid Witness Statement, at paras 1 and 2.
Mr. Benhadid is responsible for the wireless and wireline network build of Telus. He has direct knowledge of networks. He is
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TELUS would have to either duplicate fibre infrastructure at additional cost or lease it from other carriers. Leasing fibre backhaul facilities reduces TELUS’ ability to control their performance (including speed, latency, jitter, capacity and upgrades to equipment), routings, and timely maintenance of critical facilities. Owning facilities (as opposed to leasing them) allows TELUS to build redundancies and other reliability features into the architecture of the network and to respond more quickly to incidents and outages through consistent and timely traffic monitoring. For example:
a) Containing disruptions from outages: Operators that own their own facilities are able, in their sole discretion, to determine the number of cell sites that share a connection to the core networks, in accordance with their own risk tolerances. By controlling the number of cell sites that share a connection, and how such a connection is shared, an operator is able to contain the impact of outages or network failures. The greater the number of cell sites that share a connection, the greater the effects will be in the event there is an outage affecting that connection. Accordingly, the experience that an operator
their own conduct and that of their businesses.
Mr. Benhadid, as an Officer of TELUS, is not in a position to opine on the network performance or abilities of other telecommunications operators, or on the experiences that other operators are able to provide to customers.
entitled to say that a network is only as fast as its weakest/slowest link. This is a general proposition that is surely within his field of knowledge and experience.
The Respondents misread paragraph a) in relation to disruptions from outages. Mr. Benhadid, as the person that is responsible for wireless network builds and maintenance at Telus, is entitled to opine on how owning facilities can make a company responsive to outages. He is not speaking about a competitor; rather, he is pointing out a general proposition, based on his direct knowledge of the networks that he has acquired while occupying a position at Telus
In relation to paragraph b), Mr. Benhadid is simply stating that ownership of the assets allow Telus to design a network that protects against outages, something that may not be the case with competitors that do not own assets.
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that leases fibre backhaul is able to provide its downstream customers in terms of reliability may be substantially different, and in any event will be largely out of its control, instead resting in the hands of the operator from whom they lease the facilities.
b) Reducing risk of outages: TELUS ensures that certain key cell sites have two independent connections to the cores and have back-up generators, to ensure optimum performance and reliability. We are thus able to protect against a substantial outage by building two connections that are physically separate from each other, so that if one connection goes down, the other can still carry the traffic. Other wireline carriers upon whom operators that lease fibre will be dependent may not have a similar network design.
Contrary to what is suggested by the Respondents, he does not make any assertions in relation to Roger, Shaw or Videotron.
In relation to paragraph d), Mr. Benhadid simply advises that ownership of assets gives rise to increased control. Where there is no ownership, the lessee is susceptible to lesser control over the asset. Thus, requiring it to request some cooperation from the owner. This is a statement based on his direct knowledge and experience of the wireless networks that he creates and maintains for Telus and is by no means a pronouncement on Rogers, Shaw or Videotron.
c) Adapting to sudden spikes in demand: When TELUS anticipates increased network traffic in an area where it owns the facilities (for example, the Calgary Stampede) and there is insufficient backhaul capacity for that traffic, TELUS can readily upgrade capacity within In comparison, where TELUS leases backhaul, we must request an upgrade from the provider and such an
Nazim Benhadid
Page 4; Para. 7
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upgrade can take up to one week or longer to implement. Where such events can be forecasted at the time the wholesale contract is entered into, it may be possible for the lessee to negotiate established timeframes for responding to such requests. However, in TELUS’ experience this is not done, and in any event, many such events – such as natural disasters, sporting events or protests – cannot be forecast accurately.
d) Rectifying performance anomalies quicker: Where TELUS owns its own network, it can address performance anomalies in voice and/or data quality substantially more quickly by having end to end visibility into all the elements traversed by that traffic than could be addressed by a lessee who would need to persuade its wholesale provider to investigate and resolve the performance issues.
7. In my experience, competition between network operators leads to substantial network investments to improve the speed, reliability and performance of wireless (and wireline) services that would not otherwise be made. This is an important reason why TELUS decided to build the vast majority of its own fibre backhaul to serve our wireless operations outside
This paragraph contains inadmissible opinion evidence.
A lay witness cannot testify on matters beyond their own conduct and that of their businesses.
Mr. Benhadid, as an Officer of TELUS, is not in a position to opine generally on competition between network
Mr. Benhadid is responsible for netwrork build and maintenance at telus. He is speaking to what he has experienced as the officer responsible for wirless infrastructure at Telus. As a general proposition, based on his experience, competition causes market players to
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of our traditional wireline serving area, for example, in Montreal.
operators and what such invest grester competition may lead to. amounts to increase Nor is he in a position to performance of the opine or speculate on the networks. His investment rationales of observations are in other network operators. relation to what happens to netwroks with increased competition. He offers the Telus experinece as an example for that general proposition.
Sameer Dhamani
28. Mr. Dhamani is the owner of seven Freedom Mobile retail stores across Alberta. He retails Freedom offerings to the public in various communities in Alberta. 13
Sameer Dhamani (September 2022)
13
Page 4; Para. 15
15. In addition, Freedom’s This paragraph Mr. Dhamani is a commission structure on contains inadmissible retailer of Freedom Freedom Internet service is not opinion evidence. products. He has a motivating factor for sales; the direct knowledge commissions are very modest, and experience of A lay witness cannot in comparison to the significant the offerings of testify on matters headaches involved with selling Freedom and beyond their own the product. Freedom Home Shaw. The small conduct and that of Internet is no antidote to Shaw’s commissions their businesses. unfair competition on mobile offered by plans. Freedom when Mr. Dhamani, as an assessed against Independent Dealer Shaw’s of Freedom, is not in competitive a position to opine on behaviour is no alleged “unfair match. He is in a competition” by position to provide Shaw and what evidence on the constitutes an competitive forces “antidote” to such in the marketplace “unfair competition”. for which he makes offerings to the public.
Dhamani Witness Statement, sworn March 3, 2022 and September 2022, at paras 1 and 2.
Sameer Dhamani (March 2022)
Page 8; Para. 9
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9. In Alberta, Shaw has been This paragraph Mr. Dhamani is undercutting the Freedom brand contains inadmissible directly invovled with superior Shaw offers. We opinion evidence. in the competitive consider Shaw to be leveraging marketplace, unfair advantages over Freedom making Freedom A lay witness cannot dealers. Shaw negotiates our offerings to testify on matters agreements and are not required consumers. He is beyond their own to provide disclosure. At the able to provide conduct and that of same time, Freedom dealers are evidence on his their businesses. required to provide Shaw with direct experiences operational data. Shaw has in the marketplace leveraged this information to Mr. Dhamani, as an and how Shaw support the Shaw Mobile brand Independent Dealer what shaw is and have been porting of Freedom, is not in offering in customers from Freedom to a position to opine on comparison to Shaw Mobile. For example, alleged “unfair what Freedom every Monday all Alberta advantages” that are dealers offer. All dealers are required to submit supposedly being of this is within his weekly activation/upgrade “leverage[ed]” by field of knowledge reports which includes Shaw. and experience.. competitive offerings, described as “Market trends.” This information is passed on to Freedom managers, and in turn, Shaw. Shaw has access to all of this data, while Freedom dealers do not.
Stephen Howe
29. Stephen Howe is the chief technology and information officer at Bell. He leads Bell’s team responsible for designing, building and operating Bell’s industry-leading broadband fibre, wireless, satellite and media networks as well as application development, infrastructure and cloud management. 14
Stephen Howe
Page 3; Para. 8
8. Fibre backhaul plays a This paragraph critical role both in expanding contains inadmissible the capacity, performance, and opinion evidence. reliability of a wireless network to serve customers and in realizing the benefits of 5G.
There is nothing improper with this statement when considered within the context of the position that he
14 Howe Witness Statement, at paras 1 and 2.
Stephen Howe
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Our website emphasizes the A lay witness cannot importance of our fibre network testify on matters to our 5G deployment: beyond their own [Page 4, Screenshot from Bell’s conduct and that of website] their businesses.
Mr. Howe’s executive position with Bell does not entitle him to opine or speculate on the role played by fibre backhaul with respect to the networks of other wireless carriers.
occupies at Bell. . Mr. Howe is chief technology and information Officer at BCE. He designs and creates networks. He has direct knowledge and experience in the technological aspects of wireless networks. He opines on the importance of fiber backhaul in expanding capacity, performance and reliability of a wireless network and in realizing benefits of a 5G.
Pages 4-5; 10. The locations in which each This paragraph There is nothing Para. 10 of Bell and Telus have contains inadmissible improper with this deployed Radio Access opinion evidence. statement when Networks in connection with considered within the the network reciprocity context of the A lay witness cannot arrangements overlap to a large position that he testify on matters degree – but not entirely – with occupies at BCE.. beyond their own our respective wireline network Mr. Howe id chief conduct and that of footprints. Accordingly, in technology and their businesses. most areas in Alberta / British information officer at Columbia, where Telus BCE. He has direct operates an extensive Mr. Howe’s executive knowledge and residential wireline network, position with Bell experience in the Telus has deployed a RAN and does not entitle him to technological aspects Bell has not, while in most opine or speculate on of wireless networks areas in Ontario / Quebec / the alleged and their creation. Atlantic Canada, where Bell advantages or He is entitled to operates an extensive opportunities that speak to the residential wireline network, Shaw Mobile and advantages to be Bell has deployed a RAN and Freedom (or other derived from Telus has not. This is because wireless carriers) deploying a wireless there are significant advantages would supposedly network within a to deploying a wireless network obtain by deploying a wireline network within your wireline network wireless network footprint. footprint. While our experience within their wireline demonstrates that it is possible footprint. Given his experience, for an established national Mr. Howe is entitled wireless operator to to draw general successfully deploy a wireless conclusions on the network outside an existing benefits of deploying wireline network footprint, a wireless network
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deploying in an area where we have such a footprint provides us with significant opportunities to reduce costs, reduce deployment timelines, and increase innovation. The same would be true for other companies, including Shaw (Shaw Mobile and Freedom), deploying a wireless network within their traditional wireline footprint.
within their traditional wireline footprint. He believes that these general principles apply equally to all market participants.
Sudeep Verma
30. Mr. Verma is the owner of 15 Freedom retail stores where he offers Freedom product to consumers. He operates these stores and is directly involved in making offerings to consumers.
Sudeep Verma
(September 2022)
15
Page 2; Para. 8
8. These initiatives also forced incumbent telecom companies
to compete to follow some of Freedom’s revolutionary ideas and strategies.
Verma Witness Statement, at paras 1 and 2.
This paragraph contains
15
Mr. Verma has a number of Freedom
inadmissible opinion retail stores. He evidence. makes offerings to consumers and is aware of the A lay witness cannot competitive market in testify on matters which he operates. beyond their own He would know how conduct and that of the market responds their businesses. to the offerings, all of which would be Mr. Verma, as an within his direct Independent Dealer knowledge and of Freedom, is not in experience. He can a position to opine speak to how the or speculate on the competitive alleged impact of marketplace these initiatives on responded to various other initiatives. telecommunications companies, or on
Sudeep Verma
(September 2022)
Sudeep Verma
(September 2022)
Page 3; Para. 12
Page 3; Paras. 13-
14
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12. Contrary to prior years, in which Freedom was a market-
leader with aggressive and prominent campaigns, Freedom’s back-to-school promotions this year were uninteresting and very similar to offerings from other cell phone providers. There were simply no aggressive promotions by Freedom to distinguish itself from other brands.
competition more generally.
This paragraph contains
Mr. Verma has a number of Freedom
inadmissible opinion mobile retail stores. evidence. He makes offerings to consumers and is aware of the market in A lay witness cannot which he operates. testify on matters He would know about beyond their own offerings by conduct and that of competitors and how their businesses. the market responds to the offerings of Mr. Verma, as an Freedom. He would Independent Dealer be acutely aware of of Freedom, is not in such things as back to a position to opine school promotions or speculate on offered by whether Freedom’s competitors. promotions were “uninteresting” or more generally on their effectiveness against offerings offered of other wireless carriers in the market.
13. Although I do not have This paragraph access to Freedom data to know contains
Mr. Verma has a number of Freedom
how much it spends on inadmissible opinion retail stores. He advertising and brand visibility, evidence. makes offerings to I, as well as many other F- consumers and is Branded Association dealers aware of the A lay witness cannot perceive a dramatic reduction competitive testify on matters in Freedom's recent advertising marketplace in which beyond their own efforts. he operates. He conduct and that of would know how the their businesses. market responds to 14. Unlike in the past, there are the offerings, all of no transit ads, few (if any) Mr. Verma, as an which would be highway billboards, and not Independent Dealer within his knowledge. many television or radio ads. of Freedom, is not in He would know about Instead, it would appear that a position to opine Freedom’s marketing Freedom has downloaded the or speculate on the efforts at large as he advertising effort on dealers to level of Freedom’s competes with their use their own co-op dollars for advertising spend offerings. He would brand awareness.
Sudeep Verma
(September 2022)
Page 3; Para. 15
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15. Freedom is engaging in limited social media ads and
and advertising efforts.
This paragraph contains
know the extent to which Freedom has pushed down marketing efforts to dealers. He is a dealer. He is not opining on a given quantum, but rather as a general observation.
Mr. Verma has a number of Freedom
other branding activity in inadmissible opinion retail stores. He conjunction with the back-to- evidence and makes offerings to school period, but the inadmissible hearsay consumers and is messaging involves unclear evidence. aware of the market in messaging on emojis and which he operates. workouts, which create little He would know how A lay witness cannot brand recall and has not helped the market responds testify on matters in driving traffic to stores. to the offerings, all of beyond their own Dealers have seen dwindling which would be conduct and that of customer engagement on social within his knowledge. their businesses. media posts. The few He would know how comments that are seen usually Freedom markets involve excoriating complaints Mr. Verma, as an offerings. He is alive against Freedom. Overall, Independent Dealer to how social media national marketing by Freedom of Freedom, is not in platforms are used by has been curtailed to a large a position to opine Freedom and how extent. on the nature or consumers react to it. effectiveness of He understands the Freedom’s competitive landscape advertising, or on within which he the nature of operates. He is customer speaking to what is engagement on within his direct social media as knowledge and perceived by other experience, especially (unidentified) as it relates to social dealers. media as a marketing platform.
Moreover, this paragraph attempts to put into evidence “excoriating complaints” allegedly made against Freedom online. Mr. Verma did not append these complaints to his Witness Statement,
Sudeep Verma
Page 11; Para. 18
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18. Wind/Freedom is a pioneer in industry-leading reforms, which the incumbents ultimately matched, helping
and the Commissioner has not called any of the individuals who supposedly made those complaints as witnesses in this proceeding. The Respondents are therefore deprived of the opportunity to cross-examine the individuals whose statements are being relied upon. Admitting this evidence would be procedurally unfair to the Respondents and would impede the truth-seeking function of the Tribunal.
In addition, evidence concerning complaints made about Freedom on social media or elsewhere online by unidentified individuals has no relevance to any issue raised in this proceeding. To the extent this evidence has any probative value (and it does not), that probative value is outweighed overwhelmingly by its prejudicial effect. For this reason as well, the evidence is inadmissible.
This paragraph contains
Mr. Verma can speak to the competitive landscape in which he operates. As the
(February 2022)
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Canadian consumers. Some inadmissible opinion owner of retail stores examples of these disruptions evidence. that offer Freedom include: (a) unbundling device product, he knows the pricing from rate plans, which competitive market A lay witness cannot meant customers did not have landscape in which he testify on matters to continue paying for their operates. He is beyond their own hardware once devices were speaking about his conduct and that of paid off (in a two-year term), experiences and how their businesses. and (b) introducing “Big Gig the competitive data” on rate plans, which marketplace reacted meant consumers had abundant Mr. Verma, as an to the “Big Gig data” data as compared to incumbents Independent Dealer roll out by Shaw. He who did not offer these plans, of Freedom, is not in is entitled to speak to but which ultimately forced a position to opine these matters as the incumbents to follow suit. A or speculate on the owner of a retail store summary of some of Freedom’s competitive impact that makes offerings pioneering competitive of initiatives on which require that he initiatives is described below. other have knowledge of telecommunications competitive offerings. companies and on competition more generally.
B. The Legal Test: Hearsay Evidence
31. Hearsay evidence is inadmissible. The witness statements tendered by the Commissioner contain no hearsay evidence or alternatively, as explained below, the evidence falls within the exception to the hearsay rule.
32. Hearsay evidence is presumptively inadmissible. The essential defining features of hearsay are “: (a) the fact that the statement is adduced to prove the truth of its contents; and (b) the absence of a contemporaneous opportunity to cross-examine the declarant. 16 As such, statements that are outside the witness’ personal knowledge are hearsay. 17
33. The fundamental objection to hearsay evidence is the inability to test the reliability of hearsay statements through proper cross-examination. It is a procedural fairness concern. A consultant report, for instance, that is put forward in a witness statement and that makes assertions as to, say, the benefits or efficiencies to be derived from a proposed merger escape cross-examination. The Respondents receive the benefit of the evidence, without challenge, all of which breeds unfairness on the adjudicative process and on the Commissioner.
16 17
R v Khelawon, 2006 SCC 57, at para 35, Commissioner’s BOA, at Tab 6. Canadian Tire Corp Ltd v PS Partsource Inc, 2001 FCA 8, at para 6, Commissioner’s BOA, at Tab 7.
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34. There is no doubt that the presumptive inadmissibility of hearsay may be overcome when it is established that what is being proposed falls under a recognized common law or statutory exception to the hearsay rule. Hearsay evidence may also be admissible when it satisfies the twin criteria of “necessity” and “reliability” under the principled approach developed by the Supreme Court of Canada. 18
35. The hearsay exceptions are in place to facilitate the search for truth by admitting into evidence hearsay statements that are reliably made or can be adequately tested. Source data from recognizable institutions, such as an OECD Reports, IMF Reports or World Bank Reports, for instance, fall into the hearsay exception and the author of these reports need not be produced in order to admit them into evidence.
36. Under the principled approach established by the Supreme Court, the onus is on the person who seeks to tender the hearsay evidence to establish “necessity” and “reliability” on a balance of probabilities. 19 The function of the trier of fact is to determine whether the particular hearsay statement exhibits sufficient indicia of necessity and reliability so as to afford him or her a satisfactory basis for evaluating the truth and trustworthiness of the statement that has been put into evidence.
37. The “necessity” requirement may be established in instances where there is no alternative evidence or no other means for a party to bring the evidence before the Court. This will typically occur where the calling party "cannot compel testimony from the declarant".
38. The “reliability” requirement may be established in either or both of two ways, namely procedural or substantive reliability.
39. Procedural reliability is established when there are adequate safeguards for testing the evidence despite the fact that the declarant has not given the evidence in court, under oath or its equivalent and under the scrutiny of contemporaneous cross-examination. 20 These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Among the substitutes for traditional safeguards are video recording the statement, administration of an oath and warning the declarant about the consequences of lying.
40. Substantive reliability is established where the hearsay statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, a trial judge considers the circumstances in which the statement was made and any evidence that corroborates or conflicts with the statement. The judge must be satisfied that the statement is so reliable that contemporaneous cross-examination on it would add little
18 R v Bradshaw, 2017 SCC 35 (“Bradshaw”), at para 23, Commissioner’s BOA, at Tab 8; R v Mapara, 2005 SCC 23, at para 15, Commissioner’s BOA, at Tab 9. 19 R v Khelawon, 2006 SCC 57, at para 47, Commissioner’s BOA, at Tab 6. 20 R v Khelawon, 2006 SCC 57, at para 63, Commissioner’s BOA, at Tab 6.
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if anything to the process. 21 Accordingly, where, on a balance of probabilities, a court determines that there are sufficient guarantees of a statement’s inherent trustworthiness, a statement may be admitted because it meets the test for threshold reliability.
41. The complaints raised by the Respondent are either not hearsay statements or fall within the hearsay exception explained above.
Blaik Kirby
42. The complaints levelled against Blaik Kirby relates to reliance that he places on data. Mr. Kirby is responsible for marketing and sales of wireless services at Bell. At foornote 31 of his Witness Statement he explains how Bell uses understand the marketplace. He states:
Blaik Kirby
21
Page 14; Para. 34
34. Data obtained from This paragraph contains Both the which for the reasons set inadmissible hearsay out above I consider to be evidence. reliable, indicates that, in the time period from July 1, 2020 to June Mr. Kirby relies on 30, 2022, the number of information from a customers switching between third-party, Shaw and Rogers nationally for the truth of its contents without permitting the Respondents to cross- These data examine a are summarized in the graph representative below, which Bell prepared. They on the accuracy of that show that nearly information and the process through which it was gathered. Admitting this evidence would be procedurally unfair to the Respondents and would impede the truth-
R v Khelawon, 2006 SCC 57, at paras 49, 62, 107, Commissioner’s BOA, at Tab 6.
data to
reliability and necessity test to the hearsay exception rule are met. The only reliable source of data is
a third-party data provider. This is explained at footnote 31 of Mr. Kirby’s affidavit. The reliability of the data has been validated by Bell.
Paragraph 34 also speaks to charts
Blaik Kirby
Pages 16- 17; Paras. 39-41
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This leads me to conclude that, across the Shaw footprint, competition between Rogers and Shaw is disproportionately relevant to the competitive dynamic.
seeking function of the Tribunal.
39. According to data Bell This paragraph contains obtained from inadmissible hearsay (which, as described above, I evidence. consider to be reliable), Shaw had net ports of Mr. Kirby relies on information from a third-party, for the truth of This means that its contents without permitting the Respondents to cross-examine a By Q4 2021 Shaw’s net representative ports for the quarter were - on the accuracy of that information and the process through which it was gathered. Admitting this evidence would be procedurally unfair to the Respondents and 40. Rogers has been the largest would impede the truth-beneficiary of the reduction in seeking function of the Shaw’s competitive efforts Tribunal. following the announcement of
created by Bell. While the source data may originate from which meets both the reliability and necessity requirements of the hearsay exception. The charts and manipulation of the data originates from Bell. Mr. Kirby is entitled to speak to these matters. If the Respondents contend that the source data is not reliable as an input to the charts created by Bell, they are free to cross-examine.
is a product that provides to wireless carriers. It is a third-party data provider. Bell relies on this data in the normal course of business to guide its consumer offerings. The data source meets both the reliability and necessity test to the hearsay exception. At para 31, Mr. Kirby explains that this is the only source of information available to Bell
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the Proposed Acquisition.
41. Looking just at the port outflows from Shaw in Q4 2021, Rogers accounts for (i.e., of customers switching to other carriers from Shaw switched to Rogers). Because Rogers typically captures just of wireless net additions, I understand the fact that it accounts for of Shaw’s net port swing and captures of port outflows from Shaw to be a consequence of the particularly close competition between Rogers and Shaw prior to the Proposed Acquisition. These data are reflected in the graph below, which Bell prepared based on the data from
and that it has tested its reliability.
Part of the statements are in relation to a chart that was crated by Bell, using source data from
The Respondents may cross-examine on the source data, but the Bell charts contain information that has been uniquely created by Bell.
Charlie Casey 43. Charlie Casey is the VP of Consumer, Controller of Telus. His responsibilities include financial planning and reporting for the consumer segment of the business. He supports all financial and subscriber key performance indicators for the Telus consumer business. In his witness statement, Mr. Casey relies on data that is supplied by Comlinkdata. Comlinkdata is a third-party service provider that synthesizes billions of data points to generate unique, actionable insights for clients in the wireless sector. The company specializes in network insights, business and residential subscriber behavior, and sales enablement across wireless, wireline, broadband, and device ecosystems. 22
Charlie Casey
22
Page 4; Para. 8, 8(a)
8. I believe that Shaw’s competitive intensity in Alberta, British Columbia and in Ontario has decreased materially since the
https://comlinkdata.com/about/
This paragraph contains inadmissible opinion evidence.
Mr. Casey is relying on Comlinkdata, which sources
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announcement of the Proposed Transaction on March 15, 2021. My belief is based on a number of data points and observations, including the following:
a) The Comlink data: Attached to my witness statement as Exhibit A are true copies of three Comlink reports which show the net ports for Shaw on a monthly basis for the period commencing January 1, 2021 (prior to the announcement of the Proposed Transaction) and ending August 31, 2022, on a national basis, on a combined Alberta and British Columbia basis; and on an Ontario only basis.
A lay witness cannot testify on matters beyond their own conduct and that of their businesses.
Mr. Casey, as an Officer of TELUS, is not in a position to opine or speculate on Shaw’s competitive decision-making or “competitive intensity”.
This paragraph also contains inadmissible hearsay evidence.
objective and reliable data on the marketplace to the wireless sector. The information is both reliable and necessary, meeting the hearsay exception. He is providing an opinion on the market data that has been provided by an independent third-party service provider that is paid to gather this
type of information for industry.
Mr. Casey relies on Mr. Casey is information from a responsible for More specifically, third-party, Comlink, financial i. The national report shows that for the truth of its planning and Shaw gained net ports in contents without reporting for the April 2021 and lost net permitting the consumer ports in December 2021. This is an Respondents to cross- segment of the approximate 235% decrease in the examine a business at number of net ports. This trend has representative of continued throughout 2022. Shaw Telus. He relies Comlink on the commenced 2022 by losing on Comlinkdata accuracy of that net ports and in August lost information and the to arrive at a net ports. process through conclusion in ii. The combined Alberta and which it was gathered. relation to British Columbia report shows that Admitting this competitive Shaw gained net ports in evidence would be intensity of April 2021 and lost net ports procedurally unfair to Shaw. He in December 2021. This is an the Respondents and expresses an approximate 103% decrease in net would impede the opinion on the ports. Shaw has experienced a truth-seeking function data. drastic decline in net ports in 2022. of the Tribunal.
It commenced the year by gaining net ports and then the decline commenced and in August it lost net ports.
iii.
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since the Proposed Transaction was announced. Shaw lost net ports in April 2021 and lost net ports in December 2021. This is an approximate 374% decrease in net ports. This trend has continued throughout 2022. Shaw lost net ports in January 2022 and in August it lost net ports.
iv. A common element of each of these reports, each of which covers a time period after the announcement of the Proposed Transaction, is Shaw’s substantial loss of net ports in the Black Friday-Cyber Monday period (late November) and the Boxing Week period (late December) which suggests that Shaw was not competing vigorously for subscribers during these heavy price promotional periods.
Christopher Hickey 44. In relation to Mr. Hickey, he is the Director, Regulatory Affairs at Distributel. He is responsible for the regulatory activities and functions of Distributel. Distributel is in internet service provider, a telecommunications service provider and a broadcasting distribution undertaking.
Christopher Hickey
Page 8; Para. 22
22. The spreadsheet also sets out the additional costs that we expected to incur to offer a wireless service similar to the ‘Unlimited’ 25Gb wireless plan that Shaw offers in its wireline Internet and wireless service bundles (see column K of Exhibit I).
Mr. Hickey had discussions with Telus and has identified the source of the information the affidavit and believe it to be true. He has provided the data, which is found in the spreadsheets that he subsequently
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The costs include a contribution towards selling, general, and administrative expenses.
t
created. The data was sourced from Telus and received by Distributel.
Sudeep Verma 45. Mr. Verma is the owner of 15 Freedom retail stores where he offers Freedom product to consumers. He operates these stores and is directly involved in making offerings to consumers. 23 He is also a member of the Association of Freedom Wireless Dealers (“F-Branded Association”). This is an association of all Freedom Mobile retail stores across Canada. The association was created to work proactively to discuss and share concerns and data between members. 24
Sudeep Verma
(February 2022)
23 24
Page 9; Paras. 10-
11
10. Based on market research by the F-Branded
Association and our knowledge of the instore
Verma Witness Statement, at paras 1 and 2. Verma Witness Statement, at para 3.
This paragraph contains inadmissible hearsay
evidence.
The Respondents only partially read
the paragraph. The source of the
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experience, the primary These paragraphs rely upon observations as it customer segments that rely analysis of Freedom’s relates to customer on Freedom retail services customers performed by the segments is based, are mid-to-low income F-Branded Association. Mr. in part on first earners, new Canadians, Verma is not the author of hand knowledge at visible minorities, students the analysis. The author of the retail stores as and seniors. the analysis has not been well as data from
11. Based on data from our called by the Commissioner the F-Branded customer postal codes and as a witness in this Association. This StatsCan, our customers live proceeding. The is ignored by the in areas with mid-to-low Respondents are therefore Respondents. average incomes, with high deprived of the opportunity Further, Mr. concentrations of new to cross-examine the person Verma is a Canadians and high who prepared the analysis member of the F-concentrations of visible that is being relied upon. Branded minority populations. Admitting this evidence Association. This Attached as Exhibit “A” to would be procedurally is his association this affidavit is an analysis unfair to the Respondents to which he is prepared by the F-Branded and would impede the actively involved Association, which truth-seeking function of and has a direct compares the postal codes the Tribunal. interest and has of its customers in the GTA been involved in area and compares those creating the data. postal codes to information As it relates to from the City of Toronto as paragraph 11, the to average family income, data as it relates to concentration of new where the client immigrants, and lives is from concentration of visible information that is minority population. held by the retail store. Reliance on F-Branded information which correlates income level and postal code meets both the necessity and reliability test of the exception to hearsay. Not to mention that the source of the information is form an association to which Mr. Verma has a direct interest. The Respondents are free to cross-examine on the
Sudeep Verma
(February 2022)
Sudeep Verma
(February 2022)
Page 10; Para. 14
Page 12; Para. 24
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14. Attached as Exhibit “D” This paragraph contains to this affidavit is an inadmissible hearsay
evidence as it is the evidence of Mr. Verma.
The data generated by the Association
analysis prepared by the F- evidence. Branded Association to show the percentage of This paragraph relies upon prepaid customers, versus analysis of Freedom’s postpaid. Based on this sales customers performed by the data, prepaid users make up F-Branded Association. 43.1% of F-Branded Association customers, a rate which has steadily Mr. Verma is not the author dealers is an increased since 2018 when of the analysis. The author they made up 22.9% of our of the analysis has not been independent customers. In my called by the Commissioner franchise dealers experience, prepaid plans as a witness in this are attractive for financial proceeding. The reasons and because Respondents are therefore customers may not qualify deprived of the opportunity for post-paid, for example, to cross-examine the person member of the due to poor credit ratings, who prepared the analysis and for customers with low that is being relied upon. phone usage requirements, Admitting this evidence such as seniors. The source would be procedurally of this data in the analysis is unfair to the Respondents actual sales recorded in the and would impede the point-of-sale software at the truth-seeking function of store level and an average the Tribunal. across the membership of the association.
24. Throughout our history as Freedom dealers, we
This paragraph contains inadmissible hearsay
of F-branded dealers meets the reliability and necessity test to the hearsay exception. The Association of F-branded wireless
association of 72
and dealer groups that share and create data. Mr. Verma is a
association and has a direct interest and stake in the evidence that is gathered and generated. The Respondents can cross-examine Mr. Verma on the evidence as it is his evidence given his direct interest in the association.
The data generated by the Association
have strived to make evidence. of F-branded Freedom the most attractive dealers meets the choice for customers reliability and This paragraph relies upon moving over from the “big necessity test to analysis of Freedom’s 3” incumbent providers. the hearsay customers performed by the Attached as Exhibit “J” to exception. The F-F-Branded Association. this affidavit is a chart from Branded the F-Branded Association, Association data is which reflects that 61% of Mr. Verma is not the author a source of total Freedom activations of the analysis. The author information that are port-ins from Rogers, of the analysis has not been independent Fido and Chatr. The source called by the Commissioner dealers rely on and for this data is a member as a witness in this collectively
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dealer operating more than proceeding. The generate. It is both 10 locations in the GTA and Respondents are therefore reliable and who has been tracking port- deprived of the opportunity necessary to in at the store level via the to cross-examine the person understand the point-of-sale software. who prepared the analysis consumer There has been a conscious that is being relied upon. behaviour in a effort on part of Freedom to Admitting this evidence given geographic position itself as an would be procedurally area. The alternative to the “Big unfair to the Respondents evidence is also Three”. Attached as Exhibit and would impede the that of Mr. Verma. “K” to this affidavit is a truth-seeking function of He is the “Freedom Mobile the Tribunal. association and has Competitor Comparison” a direct interest in document prepared by the evidence that Freedom. has been gathered and generated. In this context, the Respondents can cross-examine Mr. Verma and there is no unfairness.
C. Complaints that are entirely without merit (Category 3) Denis Albert and Stephanie Assed
46. There are a number of complaints advanced by the Respondent that are beyond the pale of reasonability. The Commissioner has produced a witness statement that explains how it obtained and processed submissions from consumers and stakeholders. The submissions contained views on whether the merger was favourable. The witness statement was intended to explain how the Commissioner receives public input only. The actual statements are not put in evidence nor are they relied upon. The Bureau also uses an RFI process to gather information which is described in another witness statement. The results of the RFIs and the information that was received is not put in evidence. There is nothing improper in either the Denis Albert or Christine Assad witness statements. The Respondent grossly misreads the evidence and fails to understand the purpose for which it is tendered.
Denis Albert Pages 2- 4; Paras. 5-14
5. As part of the Bureau’s review of a merger, the Bureau seeks a wide variety of perspectives on the competitive effects of the merger; the Bureau considers the views of not
These paragraphs contain impermissible hearsay evidence.
The witness makes reference to “submissions” from
Mr Albert is an employee of the Bureau and speaks to the review process and how they receive views on
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just the merging parties and thousands of individuals a proposed their competitors, but also concerning the proposed merger from from the members of the transaction between Rogers consumers and general public who are and Shaw. The stakeholders. consumers in the relevant Commissioner has not called The evidence market. To that end the all of the individuals who speaks to the Bureau receives submissions supposedly made these process followed from Canadian consumers submissions as witnesses in by the Bureau and stakeholders through the this proceeding. The and not to the Information Centre. Respondents have no content of the opportunity to cross- information that examine all of the authors of was gathered. 6. One channel through the submissions. The evidence is which the Information in relation to Centre receives submissions how information is through a web form Neither the fact that was gathered located on the Bureau’s submissions were sought only. Not a website (the “Merger from the general public, nor single improper Feedback Form”), located at the receipt and number of statement in all the following address: the submissions received has of the paragraphs https://www.competitionbur any relevance to any issue referenced by the eau.gc.ca/eic/site/cb- raised in this proceeding. To Respondents. bc.nsf/frm- the extent that they have any eng/GH%C3%89T- probative value (and they do 83KK9Y. Unlike a request not), that probative value is for information issued by a outweighed overwhelmingly case team, the Merger by their prejudicial effect. Feedback Form is not For this reason as well, the associated with a specific evidence is inadmissible. merger. The Merger Feedback Form is located on a webpage that generally explains the Bureau’s merger review process. Following this explanation, the Merger Feedback Form invites Canadian consumers and stakeholders to submit their views on competition-related issues regarding a transaction.
7. The Merger Feedback Form asks respondents to provide their last name; first name; e-mail address; company, association or organization; the name of the merger on which the respondent is commenting; and the respondent’s
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comments. The Merger Feedback Form also allows respondents to attach files.
8. Anyone may use to the form at any time to share their views on any merger. Callers to the Information Centre are also directed to submit their views through the Merger Feedback Form.
9. These submissions were received in our receiving email inbox. A few samples were entered in our database called the Bureau Information Management System (“BIMS”) and assigned to the Mergers and Monopolistic Practices (“MMP”) directorate. The remainder of the submissions were placed in a folder accessible by both the Information Centre and the MMP directorate.
10. As part of my duties, I perform the daily triage of all requests coming in the Information Centre’s inbox. In doing so, I have read many of these submissions.
11. The Proposed Transaction aroused a significant interest by consumers in the impact of the Proposed Transaction and the Bureau’s review. Since the announcement of the Proposed Transaction in March 2021, the Information Centre received 7,881 submissions regarding the Proposed Transaction. These submissions were mainly received through the
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Merger Feedback Form, but submissions were also received through the complaint and information request forms available on the Bureau’s website at https://www.competitionbur eau.gc.ca/eic/site/cb-bc.nsf/eng/h_03167.html. These submissions came from the general pubic, competitors and the industry voicing their opinion on the proposed transaction. This figure is in addition to any responses to requests for information issued by the Bureau’s case team.
12. The Commissioner produced the majority of the submissions received by the Information Centre, approximately 7,556 documents, to Rogers Communications Inc. (“Rogers”), Shaw Communications Inc. (“Shaw”), and Videotron Ltd. (“Videotron”) in the course of the present application under section 92 of the Act.
13. In conducting inquiries under the Act into previous mergers, the Bureau also received submissions through various channels with respect to those mergers. However, the Proposed Transaction has generated a significantly greater response than any other merger reviewed by the Bureau since at least 2016. The Bureau has received to-date approximately 4.16 times more submissions regarding
Stephanie Assad
Pages 2- 3; Paras. -510
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the Proposed Transaction than the merger with the second highest number of submissions.
14. The number of total submissions received by the Bureau with respect to mergers within the past six years are set out in the table below. The totals seen in the table come from submissions received through the Merger Feedback Form and other forms located on the Bureau’s website, including the complaint and question forms. We track trends either by doing a search in BIMS or by creating a folder collecting request and submissions related to specific cases. Only the top five mergers by total number of submissions are shown.
[Page 4, Chart of Number of Submissions]
5. On September 28, 2021, These paragraphs contain the Bureau case team issued impermissible hearsay a public request for evidence. information (the “RFI”) to help gather facts about the The witness makes reference Proposed Transaction. I was to and attaches one of the Bureau officers “submissions” from responsible for the drafting hundreds of individuals who of the RFI. At the time of are not witnesses in this the issuance of the RFI, the proceeding, and which are Bureau was investigating themselves replete with whether the Proposed inadmissible lay opinion Transaction is likely to evidence, prejudicial result in a substantial
Ms. Assad is an employee of the Bureau and is speaking to the RFI process used by the Commissioner. Her evidence goes to the process used to gather evidence and not what is contained in the responses. Not a
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lessening or prevention of competition for mobile wireless, wireline internet, and broadcasting services. Attached as Exhibit “A” is a copy of the RFI. Attached as Exhibit “B” is a press release about the RFI issued by the Bureau on the same date.
6. The RFI invited market participants and Canadians to submit information to assist the Bureau with its review of the Proposed Transaction. One purpose of the RFI was to seek a comprehensive set of perspectives on the impacts of the Proposed Transaction, including those of consumers of mobile wireless, wireline internet, and broadcasting services. The RFI allowed the Bureau to learn about the impacts of the Proposed Transaction from everyday Canadians who rely on these services without requiring the Bureau to directly reach out to individual consumers.
statements, and unsubstantiated claims.
This inadmissible evidence is not being tendered to establish that various submissions were received in response to the RFI. Rather, it is being tendered for the truth of the contents of those submissions.
Neither the fact of the issuance of the RFI, nor the receipt, number and content of the submissions received has any relevance to any issue raised in this proceeding. To the extent that they have any probative value (and they do not), that probative value is outweighed overwhelmingly by their prejudicial effect. For this reason as well, the evidence is inadmissible.
single submission is relied upon in this witness statement. She provides a mathematical summary of the responses that were reviewed and received. This attack is frivolous and without merit.
7. The Bureau requested that all those with information relevant to the topics described in the RFI to provide submissions through a web-form on the Bureau’s website located at the following address: https://www.competitionbur eau.gc.ca/eic/site/cbbc.
nsf/frm-eng/MBED-C47KMR. Submissions made through the web-form were automatically sent to an e-mail inbox monitored by the Bureau. These e-
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mails were then electronically preserved and uploaded to Nuix Discover. Officers on the Bureau’s case team would then review the submissions.
8. The Bureau imposed a deadline of October 29, 2021 for responses to the RFI. As of October 29, 2021, the Bureau received 315 submissions in response to the RFI, copies of which are included under separate cover as Exhibit “C”. These submissions were received from self-identified residential customers, business customers, wholesale customers, competitors, and industry and/or economic experts. However, the majority (286 submissions) were from self-identified residential customers.
9. I reviewed all 315 submissions received by the Bureau in response to the RFI. 244 of the submissions express a critical view of the Proposed Transaction. 10 of the submissions express a favourable view of the Proposed Transaction. 61 of the submissions do not express a either a critical or favourable view of the Proposed Transaction.
10. In particular, 292 submissions in response to the RFI were marked by the respondents as relating to wireless services. Out of those, 239 of the submissions express a
critical view of the Proposed Transaction; and 53 express a favourable view.
PART IV – ORDERS REQUESTED
47.
The Commissioner seeks from the Tribunal the following relief:
(a) an Order dismissing the Respondents’ motion to strike paragraphs contained in a number of witness statement put forward by the Commissioner; and
(b)
costs of this motion
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 26 th
day of October, 2022
_______________________________________ ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services Place du Portage, Phase I 50 Victoria Street, 22 nd Floor Fax: 819.953.9267
John Tyhurst john.tyhurst@cb-bc.gc.ca
Alexander Gay Alexander.Gay@justice.gc.ca
Derek Leschinsky derek.leschinsky@cb-bc.gc.ca
Katherine Rydel Katherine.Rydel@cb-bc.gc.ca
Ryan Caron Ryan.Caron@cb-bc.gc.ca
TO:
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Kevin Hong kevin.hong@cb-bc.gc.ca
Counsel to the Commissioner of Competition
LAX O’SULLIVAN LISUS GOTTLIEB LLP Suite 2750, 145 King Street West Toronto, ON M5H 1J8
Jonathan Lisus (LSO# 32952H) Tel: 416.59878736 Email: jlisus@lolg.ca
Crawford Smith (LSO# 42131S) Tel: 416.598.8648 Email: csmith@lolg.ca
Matthew Law (LSO# 59856A) Tel: 416.849.9050 Email: mlaw@lolg.ca
Bradley Vermeersch (LSO# 69004K) Tel: 416.646.7997 Email: bvermeersch@lolg.ca
Counsel for the Respondent, Rogers Communications Inc.
AND TO:
DAVIES WARD PHILLIPS & VINEBERG LLP 155 Wellington Street West Toronto, ON M5V 3J7
Kent E. Thomson (LSO# 24264J) Tel: 416.863.5566 Email: kentthomson@dwpv.com
Derek D. Ricci (LSO# 52366N) Tel: 416.367.7471 Email: dricci@dwpv.com
Steven Frankel (LSO# 58892E) Tel: 416.367.7441 Email: sfrankel@dwpv.com
AND TO:
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Chanakya A. Sethi (LSO# 63492T) Tel: 416.863.5516 Email: csethi@dwpv.com
Counsel for the Respondent, Shaw Communications Inc.
BENNETT JONES LLP 3400 One First Canadian Place Toronto, ON M5X 1A4
John F. Rook Q.C. Phone: 416-777-4885 Email: RookJ@Bennettjones.com
Emrys Davis Phone: 416-777-6242 Email: DavisE@Bennettjones.com
Alysha Pannu Phone: 416-777-5514 Email: PannuA@Bennettjones.com
Counsel for the Intervenor, Videotron Ltd.
AND TO:
GOVERNMENT OF ALBERTA Justice and Solicitor General Legal Services Division 4th Floor, Bowker Building 9833 – 109 Street Edmonton, AB T5K 2E8
Kyle Dickson-Smith Phone: 780-644-5554 Email: kyle.dickson-smith@gov.ab.ca
Opeyemi Bello Phone: 780-644-7176 Email: opeyemi.bello@gov.ab.ca
Andrea Berrios Email: andrea.berrios@gov.ab.ca
Counsel for the Intervenor, Attorney General of Alberta