The Competition Bureau's Immunity and Leniency Programs (the
"Programs") are a critical component of the Bureau's
investigative toolbox, as they provide incentives for corporations
or individuals to come forward with information evidencing
anti-competitive conduct in return for either a grant of immunity
from prosecution or the promise of leniency. Culminating in a
signed agreement, the Programs require that the settling party
provide the Crown with "full, frank and truthful
information" and all non-privileged documents and evidence, in
addition to an ongoing commitment to co-operate.
On Feb. 4, 2015, Justice Nordheimer of the Ontario Superior
Court released a decision in the R v Nestlé et al.
case in response to a Crown application. He ordered disclosure of
all factual information provided by the co-operating parties during
the initial proffer phase of the Programs.
In this complex criminal price-fixing prosecution involving
numerous corporate and individual defendants, the Crown sought to
prevent disclosure to the accused of this information. The settling
parties supported the Crown in its contention that the information
conveyed to the Bureau prior to signing the Immunity or Leniency
agreement was subject to either settlement privilege, or
alternatively, solicitor-client privilege.
Justice Nordheimer rejected both claims. First, he concluded
that any solicitor-client privilege that may have originally
attached to the information was waived once the defendant provided
it to the Bureau, a party adverse in interest. Second, he held that
settlement privilege does not apply to prohibit the disclosure of
factual information provided to the Crown in respect of an
investigation where that information is provided knowing that the
Crown intends to rely on the information for the purposes of a
Deciding that settlement privilege did not extend to the
proffered information at issue, Justice Nordheimer ordered
disclosure of all factual information provided to the Crown by the
co-operating parties prior to executing the Immunity and Leniency
agreements. Underpinning this decision was the importance of
recognizing that the co-operating parties seeking to prevent
disclosure were facing no criminal or civil proceeding, whereas the
parties seeking disclosure of the relevant information were still
in the midst of a criminal prosecution. Moreover, the co-operating
parties were fully aware that the Immunity and Leniency agreements
compelled them to convey information to the Crown for the purpose
of prosecuting the remaining accused.
This decision provides important clarification for all future
co-operating parties. Claims of privilege will not protect factual
information that must be provided under the Programs. Any factual
information conveyed to the Competition Bureau, both prior and
subsequent to the granting of Immunity or Leniency, including at
the very earliest proffer stage, will have to be disclosed to any
parties subsequently facing a criminal prosecution.
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guide to the subject matter. Specialist advice should be sought
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