ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-8993-00 CL
DATE: 20130820
BETWEEN:
THE COMMISSIONER OF COMPETITION
Applicant
– and –
CHATR WIRELESS INC. AND ROGERS COMMUNICATIONS INC.
Respondent
J. Thomas Curry, Jaan Lilles,
Paul-Erik Veel, for the Applicant
Kent E. Thomson, Anita Banicevic,
James D. Bunting, for the Respondents
HEARD: August 13, 2012
MARROCCO J.
Ruling Concerning Number of Experts
[1] Rogers served eight expert reports on the applicant. The reports were prepared by the following individuals: Dr. Sridhar Moorthy; Dr. Howard Beales; Dr. Michael Pearce; Mr. Sushil Chawla; Dr. Robert Ennis; Mr. Harri Pietila; Mr Michael Tiplady; and Dr. Robert Ziegler.
[2] The applicant proposes that the respondents should be permitted to call six expert witnesses. The applicant objected to a ruling permitting two additional experts. The applicant argued that the anticipated evidence of Dr. Michael Pearce, and a portion of the evidence of Dr. Daniel Ennis, should not be received. It was the applicant’s view that the objectionable evidence was inadmissible because it went to the question of the general impression of the representations with which we are concerned. Those representations are claims in ads published by the respondents, which the applicant maintains wrongly suggested that the respondents’ network
dropped fewer cell phone calls than the networks of wireless service providers who had just entered the market. It is the applicant’s position that the general impression of the representations is a question of law, and therefore expert evidence on the question is inadmissible.
[3] The applicant also maintains that some of the expert evidence overlaps. Specifically the applicant maintains that the evidence of Harri Pietila, Michael Tiplady and Dr. Robert Ziegler says essentially the same thing about data generated by the networks of the new wireless carriers and the respondents. These experts, according to the applicant, say that the dropped call rates generated by the various networks cannot be reliably compared for the purposes of this Application. Their evidence is also that network generated performance indicators cannot be compared in a fair way.
[4] The applicant has served reports from five witnesses. Two of the witnesses were called as part of the applicant’s response to the respondent’s constitutional challenge of s. 74.01(1)(b) of the Competition Act, R.S.C., 1985, c. C-34. The applicant proposes to call Dr. Christian Dippon, an economist with experience in telecommunications, and Dr. Raymond Nettleton, an engineer with experience in wireless communication technologies. Finally the applicant intends to call Dr. Mulvey, who is an expert in marketing. Thus, the applicant has called, intends to call or has protected its right to call five expert witnesses.
[5] Section 7 of the Canada Evidence Act, R.S.C. 1985, c. C-5 provides that in a proceeding of this type, a party cannot call more than five expert witnesses without leave of the court.
[6] In this Application, the applicant contends that the respondents’ advertising claims were false, misleading and not properly substantiated. The respondents maintain that their advertising claims were true and that the substantiation requirement in s. 74.01(1)(b) of the Competition Act is unconstitutional because it infringes the fundamental freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms, and because the Competition Act’s administrative monetary penalty is a “true penal consequence,” and therefore engages s. 11 of the Charter.
[7] Two of the respondents’ expert witnesses, Professor Moorthy and Dr. Beales, were called in respect of the constitutional challenge. I do not view the constitutional challenge as a separate proceeding: see R. v. F.(M.), 2006 ONCJ 161, 210 C.C.C. (3d) 146, at para. 44.
[8] It was agreed however that the constitutional issue would not be decided until all of the evidence had been tendered.
[9] Section 7 of the Canada Evidence Act was intended, in part, to limit the number of experts to prevent abuse, expense and delay caused by excessive use of expert evidence: see Altana Pharma Inc. v. Novopharm Ltd., 2007 FC 1095, [2008] 3 F.C.R. 63, at paras. 46-47, 55.
[10] When I consider the reports of the experts, I am satisfied that there are not unnecessary duplications of the evidence, and that hearing the additional two experts will not unduly prolong the trial of this Application. I am satisfied that the evidence of Dr. Pearce and Dr. Ennis will each take approximately one day.
[11] The respondents will attempt to qualify Mr. Harri Pietila to express opinions on the design and use of wireless network switches, switch generated data and the appropriateness of using switch generated data to compare the performance of wireless networks. Mr. Pietila is a switch engineer. The respondents will attempt to qualify Mr. Michael Tiplady to express opinions concerning the measurement and evaluation of the performance of wireless networks. Mr. Michael Tiplady served as the Chief Technology Officer for O2, a large wireless service provider in the United Kingdom. Mr. Tiplady’s experience is with the actual operation of wireless networks. The respondents want Dr. Robert Ziegler to express opinions concerning the configuration and performance of wireless networks and the measurement and evaluation of the performance of those networks. Dr. Ziegler and his team provide research and engineering services to government and commercial customers. Dr. Ziegler’s team evaluated Rogers’ testing programs in 2005 and 2011, and he is in that sense a fact witness.
[12] Mr. Pietila, who designed and developed network switches for over 25 years, did not comment on data generated by drive testing. Mr. Michael Tiplady is not only familiar with the actual data and reports generated by networks, but he is also familiar with drive testing as a means of comparing the performance of wireless networks. Dr. Ziegler and his team evaluated Rogers’ drive testing program, and Dr. Ziegler will be able to answer questions that will assist the court in understanding the significance of proposed deviations from the drive testing methodology. Dr. Ziegler is also able to address suggestions that technical information available indicates that the respondents’ network was congested.
[13] I am satisfied that, while the witnesses come to the same conclusion about the appropriateness of comparing network performance by comparing reports generated by network data, a consideration of the totality of their evidence indicates that there is no unnecessary duplication.
[14] The respondents are granted leave to call eight expert witnesses.
The admissibility of the evidence of Dr. Pearce and Dr. Ennis
[15] The applicant argues that the evidence of Dr. Pearce, and any evidence of Dr. Ennis relating to a survey regarding the general impression of the ads at issue, are inadmissible. The applicant maintains that Dr. Pearce’s evidence is irrelevant because the perspective from which the general impression is to be assessed is a question of law. It also argues that Dr. Pearce has minutely dissected the advertisements in question, which the Supreme Court of Canada warned against in Richard v. Time Inc., 2012 SCC 8, 1 S.C.R. 265.
[16] The applicant argues that the survey evidence of Dr. Ennis is irrelevant because it relates to the general impression of the contentious ads, which the applicant maintains must be determined by the trial judge alone. It also objects to the fact that the survey was conducted more than one and a half years after the representations at issue had ceased.
[17] There are portions of Dr. Pearce’s evidence that will be admissible. For example, Dr. Pearce has collected a significant number of the contentious ads. He is able to introduce those ads into evidence and point out specific features of the ads. Dr. Ennis has statistical evidence that is admissible in response to the evidence of Dr. Dippon.
[18] Dr. Pearce will be permitted to give evidence. I will rule on the admissibility of his evidence in the event that I find it helpful. Similarly, the survey evidence of Dr. Ennis will be received, and I will rule on the admissibility of that evidence in the event that I decide to rely upon it.
Marrocco J
Released: August 20, 2013
COURT FILE NO.: CV-10-8993-00 CL
DATE: 20130820
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE COMMISSIONER OF COMPETITION
Applicant
– and –
CHATR WIRELESS INC. AND ROGERS COMMUNICATIONS INC.
Respondents
reasons for judgment
Marrocco J
Released: August 20, 2013