On September 25, 2013, the Canadian Competition Bureau released
updated FAQs for its Immunity and Leniency Programs. These two programs,
which offer whistleblowers immunity from prosecution and lenient
treatment on sentencing, are cornerstones of the Bureau's
cartel investigation program and attract many applicants every
year. The updated FAQs (the first since 2010) describe
significant procedural and substantive changes to participation in
the two Programs. Canadian and international counsel (and
their clients) will want to note the following major changes:
Must an applicant have direct or indirect sales in
Canada: Responding to the often global nature of cartels,
the Bureau has clarified that an applicant may seek an immunity or
leniency marker even if it does not sell products
either directly or indirectly in Canada. The
relevant question is not whether the applicant has Canadian sales
but whether the party has committed an offence in Canada. The
FAQs note that market allocation agreements and bid-rigging do not
require an applicant to have sold product in Canada, but are
nevertheless offences in Canada.
What happens when the Bureau discontinues its
investigation: If the Bureau does not intend to pursue its
investigation, it will confirm (in writing if the applicant
desires) the scope of the immunity or leniency recommendation it
would have made had it continued the investigation. If the
Bureau resumes its investigation, it will recommend that the
applicant receive immunity or leniency as previously
indicated. This change should please counsel and their
clients who often fear losing their place in the immunity/leniency
line if the Bureau discontinuesits investigation only to restart it
later on the basis of new information.
What must the applicant do to maintain its marker
during the proffer process: The Bureau now expects that
applicants will proactively ask for marker extensions to the 30-day
proffer period. If it does not request an extension, the
applicants' marker will automatically lapse without any
positive obligation on the Bureau to notify the applicant.
Counsel must pay particular attention to this change as they have
often taken for granted that, once granted, the marker would not
lapse and would only be revoked in the rarest of
How document production occurs: The Bureau now
expects counsel to coordinate production of relevant documents in
advance with a Bureau officer and to produce documents in
electronic format. So-called "document dumps" are
not permitted. The Bureau also expects professional
translations if documents are not in either English or French.
Discount for Immunity Plus: The Bureau has
quantified the Immunity Plus discount at between 5-10%, to be added
to the applicants leniency discount.
Fine Calculation (Leniency only): The Bureau
has confirmed that participants in market allocation and
bid-rigging offences may face penalties even if they had no sales
in Canada (although presumably their co-conspirator(s) did).
The updated FAQs include many other changes. Although some
appear striking at first glance, many of them simply formalize the
Bureau's existing practice. With these practices now in
writing, counsel and their clients have greater certainty when
participating in these two Programs. In this regard, the
updated FAQs are a welcome part of the Bureau's increasing
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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