Canada: Competition Bureau Updates Guidance On Confidential Information

Last month Canada's Competition Bureau (the Bureau) released its updated Information Bulletin on the Communication of Confidential Information under the Competition Act (the New Policy). The bulletin clarifies and revises elements of the Information Bulletin on Confidential Information under the Competition Act (the Old Policy) that was released six years ago. These changes reflect several trends in Canadian competition law such as: the public disclosure of mergers; increased cooperation between foreign competition authorities; and preserving and strengthening the Bureau's immunity and leniency programs as effective tools for enforcement.

The Old Policy

General

Under the Old Policy, the Bureau's general practice was to minimize the extent to which the confidential information it obtained while administering or enforcing the Competition Act (the Act) was communicated to persons outside the Bureau. The Old Policy stated the Bureau would be vigilant in preventing the communication of confidential information unless specifically permitted under the Act, and even when permitted, it would first consider whether the disclosure was advisable or necessary.

The Old Policy also set forth four limited circumstances in which the Bureau would utilize its discretion to communicate confidential information:

  1. communication to a Canadian law enforcement agency;
  2. communication for the purposes of administering or enforcing the Act;
  3. communication where the information had otherwise been made public; or
  4. communication authorized by the person who provided the information.

In administering and enforcing the Act, the Old Policy stated the Bureau may share confidential information with: (i) market participants such as customers, suppliers and competitors, in order to elicit certain information from them that may be used as evidence by the Bureau (although, in such cases, the Bureau would take steps to refrain from or minimize the communication of confidential information); (ii) industry, economic or legal experts retained by the Bureau to provide an opinion or analysis; (iii) international enforcement agencies in obtaining enforcement assistance or coordinating enforcement actions; (iv) courts, when making an application for the use of wiretaps or production orders; and (v) the courts and the Competition Tribunal, when initiating enforcement proceedings under the Act.

The Old Policy stated that if the Bureau was required to use confidential information before the courts or the Competition Tribunal, it would put measures in place to protect the confidentiality of the information, provided such measures did not hinder the enforcement or administration of the Act.

International Cooperation

When disclosing confidential information to foreign competition authorities to assist their law enforcement agencies, the Old Policy noted the Bureau would, in all such cases, seek to maintain the confidentiality of the information either through formal international instruments or assurances from the foreign authority.

The Immunity Program

The Old Policy also referred to the Bureau's immunity program. In particular, the Bureau would not disclose the identity of an applicant for immunity under this program unless the disclosure was: (i) required by law; (ii) necessary to obtain or maintain judicial authorization for the exercise of investigative powers; (iii) for the purpose of securing the assistance of a Canadian law enforcement agency in the exercise of investigative powers; (iv) agreed to by the applicant; (v) already made by the applicant; or (vi) necessary to prevent the commission of a serious criminal offence.

As well, the Old Policy stated the Bureau would not disclose the identity of an immunity applicant or any information obtained from the applicant to any foreign law enforcement agency unless it received the applicant's consent.

Third-Party Actions

Finally, the Old Policy set forth the Bureau's policy of refusing to voluntarily disclose confidential information in its possession to third parties contemplating or initiating a legal action under section 36 of the Act to recover damages incurred as a result of conduct contrary to the criminal provisions of the Act. The Bureau would oppose subpoenas for the production of confidential information if compliance with them would potentially interfere with an ongoing examination or inquiry, or would otherwise adversely affect the Act's administration or enforcement.

Changes made by the new policy

The New Policy differs from the Old Policy in several ways. Specifically:

Public Disclosure of Mergers

The New Policy refers to the Bureau's Merger Register, which was introduced in 2012. Specifically, the New Policy states the Bureau will, through its Merger Register, disclose the identity of the parties to a merger it has reviewed under Part IV of the Act once the review is complete.

International Cooperation

In section 4.1.2, the Bureau added bid-rigging and criminal conspiracies as crimes about which it will communicate confidential information to Canadian law enforcement agencies in an effort to more effectively combat criminal anti-competitive behaviour. The Old Policy only explicitly referred to mass marketing fraud and deceptive marketing practices as crimes about which it would share confidential information with Canadian law enforcement agencies.

The Immunity and Leniency Programs

The New Policy adds reference to the Bureau's leniency program. The Bureau released its Bulletin on the Leniency Program in 2010 (the Leniency Bulletin). The Leniency Bulletin provides that the Bureau will recommend lenient treatment in sentencing for parties who have engaged in criminal anti-competitive conduct prohibited by the Act but who approach the Bureau, admit their illegal activity and offer to cooperate with the Bureau's investigation.

The Old Policy only referred to the Bureau's immunity program, which applies only to the first party engaged in criminal anti-competitive conduct who contacts the Bureau to admit his or her guilt and cooperate with the Bureau's investigation. In contrast, the leniency program applies to subsequent parties who approach the Bureau.

As a result, the Bureau elaborated in the Leniency Bulletin on how it will treat confidential information. The New Policy also elaborates on the Bureau's practice of disclosing the identity of a party seeking leniency under the leniency program (or information provided by such party) to foreign law enforcement agencies. In particular, the New Policy states the Bureau will not disclose such information to a foreign enforcement agency unless it receives the consent of the party seeking leniency or unless required by law. In regard to the latter, the New Policy does not elaborate on when it would be required by law to disclose such information.

In the New Policy, the Bureau reaffirmed its stance on third parties contemplating or initiating legal action under section 36 of the Act.

Other Noteworthy Developments:

  • Whistleblowing Provisions: in regard to the whistleblowing provisions of the Act (section 76), the Old Policy stated that the Bureau would make every effort to ensure the identity of the whistleblower is kept confidential.  The New Policy provides further guidance on the whistleblowing provisions by elaborating when the Bureau may communicate a whistleblower's identify or any information that could reveal his or her identity. The New Policy states that the Bureau may communicate such information in the four limited circumstances set out above under the "The Old Policy."
  • Intervening before the Competition Tribunal: the New Policy adds a reference to the price maintenance provisions of the Act (section 76) as an avenue for private parties to apply for leave to make an application to the Competition Tribunal for a remedial order. In such applications, the commissioner has the ability to intervene and if he does, the New Policy states that the Bureau's policy regarding communicating confidential information will be the same as with other applications before the Tribunal or courts; it will only disclose such information for the purposes of administering or enforcing the Act.

The New Policy does not signal a shift in approach to treating confidential information under the Act. Rather, it represents a policy update to reflect developments in competition law (particularly the increased cooperation among antitrust agencies) and changes in Bureau practice.

The author wishes to thank Matthew Zedde, articling student, for his help in preparing this legal update.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.