Executive summary: Key legal and evidentiary issues

• Rogers appealed the Competition Tribunal's partial denial of its motion to amend its Response to include facts about the Commissioner's prior internal investigation as mitigating factors for any administrative monetary penalty (AMP).

• Central to the dispute is whether Rogers' "Infinite" wireless data plans constituted deceptive marketing under paragraph 74.01(1)(a) and subsections 74.011(1) and 74.011(2) of the Competition Act.

• The Tribunal found the Commissioner's prior investigation and internal conclusions were irrelevant to the question of remedy and the AMP under subsection 74.1(5) of the Act.

• Relevance was confirmed as a proper threshold component of the "reasonable prospect of success" test for leave to amend pleadings, meaning an irrelevant pleading cannot succeed.

• Rogers' motion to adduce fresh evidence on appeal was dismissed because the proposed documents could not meet the Palmer test, as irrelevant evidence cannot be decisive of the issues.

• Policy concerns weighed against Rogers' position, including the risk of turning the hearing into a trial of the Commissioner's investigative process rather than Rogers' conduct.

The "Infinite" data plans and the Commissioner's inquiry

In 2019, Rogers Communications Inc. offered customers mobile data plans, characterizing them as "Infinite" data plans. Despite the branding, once a customer used up all their high-speed data, they were relegated to access to data at lower speeds — a practice known as "throttling" — and had to incur additional costs to restore their access to high-speed data. Other major Canadian carriers introduced similar plans around the same time as Rogers. Prior to and following the launch of the Infinite wireless plans, Rogers contacted the Commissioner of Competition to discuss the plans. Although Rogers reached out several times, the Commissioner never responded.

The Commissioner's internal investigation and formal proceedings

In April 2020, the Commissioner conducted an internal investigation into the practices of Rogers and other Canadian telecommunications service providers relating to the marketing of "unlimited data" mobile plans. The conclusion of that internal investigation was that Rogers' conduct did not violate the Competition Act. That preliminary investigation was closed in the fall of 2020. In April 2023, the Commissioner initiated a formal inquiry into Rogers' marketing practices under section 10 of the Act. The inquiry lasted about 18 months. On December 23, 2024, the Commissioner commenced an application in the Competition Tribunal against Rogers, alleging that Rogers' marketing of its Infinite wireless plans constituted deceptive marketing contrary to paragraph 74.01(1)(a) and subsections 74.011(1) and 74.011(2) of the Act. Among the remedies sought was an administrative monetary penalty under paragraph 74.1(1)(c) of the Act.

Rogers' response and motions before the Tribunal

In its Response to the Notice of Application, Rogers denied that its marketing of the Infinite wireless plans was false or misleading. Rogers also pleaded that the Commissioner brought the application four years after Rogers began marketing its Infinite wireless plans and that that delay casts doubt on whether Canadian consumers suffered harm as alleged by the Commissioner. During the ensuing examinations for discovery, Rogers learned about the Commissioner's earlier internal investigation and its conclusion. Armed with this new information obtained on discovery, Rogers brought two motions: one seeking leave to amend its Response to add facts learned on discovery that might, in its view, constitute mitigating factors and therefore lower the amount of any AMP levied against it, and a second motion to compel the Commissioner to answer certain questions refused in examinations for discovery. Gagné J., acting as the Case Management Judge, denied the amendment motion in part, concluding that the Commissioner's previous conclusions on whether Rogers' conduct was false or misleading, as well as Rogers' previous attempts to contact the Commissioner prior to and following the launch of its Infinite Plans, were not relevant to the question of remedy and the AMP, under subsection 74.1(5) of the Act. She also denied Rogers' proposed amendments to support an estoppel and waiver defence, concluding that the facts alleged would not support a defence of promissory estoppel or waiver, and therefore that those claims had no prospect of success.

The standard of review and the legal test for amending pleadings

On appeal, Rogers contended that Gagné J. misdirected herself on the applicable legal test for amending pleadings. The Federal Court of Appeal, per Rennie J.A., agreed with Rogers that whether the judge adopted the right test to the amendment of a pleading is a question of law governed by the correctness standard. However, the substance of Rogers' submissions — whether Rogers' proposed amendments were, in fact, relevant — was characterized as a question of mixed fact and law, subject to the deferential standard of palpable and overriding error. The Court reaffirmed that the governing test for leave to amend is the "reasonable prospect of success" standard from Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176, and found that it was clear from the reasons that the judge was fully aware of the test. The law does not require a slavish repetition of the test at each stage of its application. The Court also held that relevance is one aspect of the threshold for amending a pleading, and that an irrelevant pleading cannot have a reasonable prospect of success.

The Court's analysis of relevance and policy concerns

The Federal Court of Appeal found that the Competition Act itself frames the scope and focus of the proceedings before the Tribunal. The factors for assessing an AMP under subsection 74.1(5) — including the vulnerability of the class of persons likely to be adversely affected by the conduct, the materiality of any representation, the effect on competition in the relevant market, and the financial position of the person against whom the order is made — all focus on Rogers' conduct and its effect on the primary objective of the legislation: the competitiveness of the Canadian economy. What transpired within the Bureau does not change Rogers' conduct, nor does it change whether consumers were, in fact, misled. What transpired within the Bureau is also irrelevant to the key statutory criteria in assessing penalties, as the Bureau's internal deliberations have no bearing on the extent of consumer losses and the injury to competition. The Court drew an analogy to proceedings before the Tax Court of Canada, where the process, motivation, or delay in issuing an assessment are irrelevant. Three broader policy concerns were identified: first, great mischief could ensue if the Commissioner's failure to respond to unsolicited notices of intended market practices gave rise to an obligation on the part of the Commissioner to respond, and that the failure to do so constituted a waiver, an estoppel, or reduced the AMP; second, the Act itself provides a mechanism whereby parties can seek non-binding rulings from the Commissioner; and third, the purpose of the AMP is to promote competition and is not a punishment, and Rogers essentially asks that the public policy objective of the AMP be subordinated to the alleged deficiencies in the Commissioner's investigation. Additionally, the Court noted a danger, which is not speculative, that opening this line of inquiry risks that the trial becomes a trial of the Commissioner's investigation, diverting the focus away from the singular issue that Parliament has mandated the Tribunal to decide — whether the conduct constitutes a deceptive marketing practice.

Fresh evidence motion

Rogers also sought to introduce fresh evidence on appeal. As a result of the refusals motion that Gagné J. granted in part, on December 15, 2025, the Commissioner disclosed several documents to Rogers. Rogers contended that these documents confirm facts pleaded in the Amended Response and sought to have them admitted as fresh evidence under rule 351 of the Federal Courts Rules. The Court applied the well-established Palmer v. The Queen test and dismissed this motion, holding that irrelevant evidence cannot be decisive or potentially decisive of the narrow question on appeal. Nor could the documents reasonably be expected to have affected the result in the motion for leave to amend.

The ruling and outcome

The Federal Court of Appeal unanimously dismissed Rogers' appeal, with costs. Rennie J.A., with Laskin J.A. and Rochester J.A. concurring, found no reviewable error in the reasoning or the conclusion of the Competition Tribunal. The successful party on this appeal was the Commissioner of Competition. No exact monetary amount was determined in this decision, as it addressed only the procedural question of whether Rogers could amend its pleadings; the underlying question of whether Rogers engaged in deceptive marketing — and the quantum of any AMP — remains to be determined by the Competition Tribunal in the proceedings below.