A court has ordered Canada’s competition commissioner to pay telcos Rogers Communications Inc. and Shaw Communications Inc. millions in costs following weeks-long court proceedings late last year, but a competition law expert said the award is small compared to the actual costs the companies spent due to the hearings.

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In a court order dated Aug. 28, the Competition Tribunal, which presided over the hearings between the parties, ordered the Competition Bureau to pay a total of over $12 million in legal fees and compensation, after the anti-trust body failed in its bid to block the merger of the two companies.

“I think the award should have been higher. It’s in the order of five per cent of their actual costs, which I think is miserly, but I get the reasoning,” said Michael Osborne, chair of the Canadian competition practice at law firm Cozen O’Connor LLP.

The commissioner will be ordered to pay counsel fees of $414,720 to Rogers and $416,187 to Shaw, plus applicable taxes. According to the court order, Rogers’ and Shaw’s actual fees incurred were just under $7.97 million and $9.7 million respectively.

The commissioner will, however, have to compensate reasonable disbursements totalling $9.3 million for Rogers and $2.8 million for Shaw.

“With two exceptions, the disbursements claimed by the respondents (Rogers and Shaw) are not unreasonable or unnecessary, and … are appropriately justified,” Judge Paul Crampton said in the document.

No costs will be payable to Videotron, which did not make a request for awarded costs in its motion for leave to intervene.

The Bureau’s attempt to block the $26-billion merger of Rogers and Shaw was soundly dismissed by both the Competition Tribunal that heard the initial challenge and the federal court that heard the watchdog’s appeal.

In it’s decision in late December, the Tribunal said said the commissioner’s pursuit of the initially proposed transaction was “divorced from reality.”

The companies had called the bureau’s approach throughout the litigation as “unnecessarily contentious,” asserting that this resulted in the excessive production of over 2.6 million documents, nine days of examinations for discovery, 16 contested pre-trial motions, the engagement of Bell and Telus in motions over documents and subpoenas, and the exchange of approximately 45 witness statements and expert reports in a very tight timeframe.

“On balance, I consider that the Commissioner’s conduct, as described immediately above, was much more unreasonable than the conduct of the Respondents,” Judge Crampton wrote in the court document.

The commissioner had argued that any cost award in the two companies’ favour should be materially reduced to “reflect” their conduct, which he argued “unnecessarily lengthened” the hearing and the submissions he was required to make. He also said the companies’ “refusal to admit various matters” that should have been admitted unnecessarily complicated the parties’ dispute.

• Email: dpaglinawan@postmedia.com