The Court did find, however, that Rogers had not conducted adequate and proper
tests before making certain representations in Calgary, Edmonton,
and Montreal contrary to the Competition Act.
Since then, the Court has ordered Rogers to pay an administrative
monetary penalty ("AMP") of $500,000 for not exercising
due diligence prior to making performance claims about the dropped
call rates for Chatr. An AMP decreases the number of
unsubstantiated claims by raising the cost of making them.
Rogers was found to have made a deliberate decision to make the
fewer dropped calls claim against Wind Mobile and Public Mobile
based on results inferred from technological facts suggesting the
superiority of Rogers' networks, including higher cell site
density, indoor transmission systems, low-frequency spectrum and
seamless handoffs. In other words, Rogers inferred that certain key
facts about their network meant it would perform better than the
networks of Wind Mobile and Public Mobile. Rogers thus,
deliberately chose to rely upon these technological facts rather
The $500,000 AMP is less than the $5 to 7 million the
Commissioner of Competition was seeking. In declining to order an
AMP at that level, the Court identified three mitigating factors
The Commissioner failed to prove that the fewer dropped calls
claim was false or misleading.
Rogers continued testing the fewer dropped calls claim after
publicly making it.
Rogers' post-claim testing substantiated the fewer dropped
On this last point, the fewer dropped calls claim may have been
harmful to the new wireless carriers, but no harm was caused to
consumers because the claim was eventually substantiated by Rogers.
Any harm inflicted on Wind Mobile and Public Mobile was therefore
appropriate. In fact, the evidence suggested that Public Mobile
probably had the worst performing network of any wireless carrier
in Canada during the period in question.
An aggravating factor was the finding that competition had been
adversely affected because, contrary to Parliament's expressed
intention, the market was exposed to the risk that the untested
performance claim might be false.
The Court concluded that it was not necessary to impose an order
against Rogers prohibiting it from engaging in similar conduct in
the future. Rogers pointed out that it had suffered reputational
harm as a result of these proceedings and that a prohibition order
would unfairly compound that harm. Moreover, Rogers submitted it
was harshly treated because it was forced to respond to this
application despite post-claim testing and substantiation of the
fewer dropped calls claim. It took the position that the
Competition Bureau in the past had abandoned inquiries of
unsubstantiated claims once a target of investigation had proven
the claims, which did not occur in the present case.
The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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