Executive Summary: Key Legal and Evidentiary Issues

• The Commissioner of Competition sought to examine individuals in relation to allegedly misleading advertising by Rogers Communications.

• Rogers Communications attempted to intervene in a motion aimed at setting aside an ex parte order authorizing those examinations.

• The court evaluated Rogers’ motion under Rule 109 of the Federal Courts Rules, focusing primarily on the "usefulness" criterion.

• It was determined that Rogers' arguments duplicated those already presented by the respondents and did not add unique legal value.

• The Commissioner demonstrated that his inquiry and the resulting ex parte order were properly grounded in statutory authority.

• The motion to intervene was dismissed, and costs were awarded to the Commissioner without specifying an amount.

Facts and outcome of the case

Background and parties involved

This case stems from an investigation under the Competition Act into Rogers Communications Inc.’s marketing practices for its mobile data plans. The Commissioner of Competition initiated an inquiry under section 10 of the Act, alleging that Rogers may have made false or misleading representations in its advertising. As part of this inquiry, the Commissioner applied for an ex parte order under section 11(1)(a) of the Act to compel the examination of two individuals, Rory McGee and Dominic Atkinson, who were either current or former employees of Dig Insights Inc., a company connected to Rogers' marketing activities.

The Commissioner’s application was granted, authorizing the examination of the individuals. In response, McGee and Atkinson brought a Rule 399 motion seeking to set aside the ex parte order. Subsequently, Rogers Communications Inc. sought to intervene in the Rule 399 motion, claiming it had a significant interest in the proceedings and that its input would be beneficial to the Court.

Legal issue and court analysis

The main legal issue before the Federal Court was whether Rogers should be granted leave to intervene under Rule 109 of the Federal Courts Rules. This required Rogers to demonstrate that its participation would be useful to the Court’s determination of the issues raised in the Rule 399 motion.

The Court applied the three-part test for intervention set out in the Le-Vel Brands decision: usefulness of the proposed intervention, genuine interest in the matter, and alignment with the interests of justice. However, the Court emphasized that usefulness is a mandatory requirement under Rule 109(2)(b). If a proposed intervener cannot show usefulness, the motion must be dismissed regardless of the other two criteria.

Justice Gascon found that Rogers’ proposed arguments largely overlapped with those already raised by McGee and Atkinson. Specifically, both parties contended that the Commissioner’s use of section 11 powers circumvented proper discovery processes and that the inquiry was not ongoing or bona fide. The Court found that Rogers did not bring new, relevant perspectives that would materially assist in resolving the Rule 399 motion. Although Rogers cited additional regulatory decisions, such as Re: Jowdat Waheed, these were not sufficiently persuasive to change the outcome or demonstrate unique legal utility.

Decision and costs

The Federal Court dismissed Rogers Communications Inc.’s motion for leave to intervene, concluding that it did not meet the usefulness requirement under Rule 109. Justice Gascon stated that permitting intervention would add no significant value to the core issues being litigated, which were already adequately represented by the respondents. As a result, the Commissioner of Competition was awarded costs, although no specific monetary figure was mentioned in the decision.