In addition to important differences between key antitrust offences in the U.S. and Canada, the process of securing immunity from prosecution here has its own unique twists.
There are few multinational corporations doing business in the United States that do not also operate in Canada. So, when it comes to securing amnesty for antitrust offences, it’s important to remember that, like football, it’s a very different game here. Parties who have already received immunity in the U.S. will still face criminal antitrust exposure in Canada.
The Canadian Competition Bureau is among the leading enforcement agencies in international antitrust regulation. Bureau investigators vigorously enforce provisions in Canada’s Competition Act forbidding international price-fixing or market/customer allocation cartels, bidrigging, price maintenance, foreign price directives, and deceptive marketing practices. Corporations that engage in any of these activities in Canada increasingly risk prosecution and, potentially, unlimited fines, significant reputational damage and hefty legal costs. Executives can be arrested and extradited and, on conviction, could face heavy fines, jail sentences or both.
These are the main reasons why we urge our clients to be as proactive about minimizing their antitrust exposure in Canada as they are in the U.S. When an antitrust offence does come to light, in Canada, as in the U.S., it’s generally advisable to be the first to report it. Here, the Competition Bureau and the Attorney General offer a coordinated immunity program with substantial incentives for applicants. These include complete immunity from prosecution (given full disclosure and cooperation) and the chance to avoid having to make a public guilty plea. Other incentives include the protection of identities and evidence from foreign authorities, and the ability to shelter subsidiaries or affiliates, as well as executives and officers, under the same grant of immunity.
Key differences in the treatment and enforcement of major antitrust offences in Canada include:
- Unlike the U.S., Canada has no limitation period for antitrust offences;
- Unlike Section 1 of the Sherman Act, the core conspiracy offence under Canada’s Competition Act is not a "per se" offence. In Canada, prosecutors must prove not only the existence of an anticompetitive agreement but also that it would be likely to "unduly" limit competition. This has important ramifications for immunity applicants;
- Canada has a distinct offence of implementing foreign price directives whether or not any director of the corporation in Canada had any knowledge of the underlying foreign cartel;
- Criminal liability may also flow from applying "party liability" sections of Canada’s Criminal Code – i.e., by "aiding and abetting" or counselling antitrust conspiracies or other offences;
- Canada may have jurisdictional difficulties in mounting antitrust prosecutions because there is frequently no Canadian cartel player. While extradition of foreign executives is a viable prosecution tool, trying foreign companies that do not directly do business in Canada is likely to be problematic.
Securing Immunity In Canada
As in the U.S., Canadian immunity is available to applicants who come forward either before or early in an investigation if they:
- Are first to report the illegal conduct;
- Took "effective steps" to terminate their participation;
- Were not the instigator or leader of the activity, nor the sole beneficiary of the activity in Canada;
- Reveal all competition-related offences relating to the particular product or service;
- Cooperate and make truthful, full, and continuing disclosure of all evidence and information within their possession or control; and,
- Make restitution, where possible.
Unlike the U.S., in Canada, immunity is barred to entities who are the sole beneficiaries of the illegal activity, but it may be granted to a co-instigator.
Like the U.S., Canada’s competition authorities have implemented an informal "marker" regime to enable an applicant to reserve "first place" status in securing immunity.
A Two-Stage Process
Immunity in Canada is granted in two stages:
- After an initial detailed disclosure, applicants can obtain a "provisional guarantee of immunity" (PGI), a letter from the Attorney General on the Bureau’s recommendation. Then the Bureau will interview personnel and review all relevant documents. Interviews are conducted under a form of "use immunity" letter, which provides the witness with immunity from prosecution except for perjury and related offences.
- Completing these steps (and agreeing to continuing co-operation) will entitle applicants to a "final immunity" letter.
If immunity applications are pending in both Canada and the U.S. (a desirable strategy), it may be possible to structure sequential interviews with the U.S. Department of Justice and the Competition Bureau to save time and legal expenses. The Bureau will want disclosure of all Competition Act offences relating to the product or service, a less flexible approach than U.S. authorities tend to take.
Bearing in mind global cooperation among antitrust enforcers and the potential for multi-jurisdictional "dawn raids," astute corporate leaders will coordinate an amnesty/immunity strategy so that applications can be made simultaneously (or as nearly as possible) in all relevant jurisdictions.
Note: Canada’s Competition Bureau is currently considering major revisions to its immunity policy and will shortly issue a discussion paper.
Graham Reynolds is a partner in Osler, Hoskin & Harcourt LLP's highly regarded Competition/Antitrust Law Group. He is a leading litigator in the area of competition law with extensive trial and appellate experience and broad knowledge of investigative, regulatory and prosecution processes.
Peter Franklyn is the Chair of the firm's highly regarded Competition/Antitrust Law Group. Over 20 years he has built a reputation as a leading advisor in Canadian competition/antitrust matters including mergers and acquisitions, strategic alliances, cartels, pricing, distribution and advertising matters, as well as foreign investment matters.
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