Article by John Laskin, Linda Plumpton and Omar Wakil
The Competition Bureau recently updated its Immunity Program, which prescribes the circumstances in which parties that violate the conspiracy and other criminal offence provisions of the Competition Act (Canada) may seek immunity from prosecution.
Three changes have effectively broadened the eligibility criteria for immunity:
Leaders or instigators of illegal activity are no longer ineligible for immunity; only applicants that have coerced others into participating in illegal activity are disqualified.
"Sole beneficiaries" of illegal activity in Canada are now eligible for immunity; only when an applicant is the sole party involved in illegal activity will the applicant be disqualified.
Agents of the applicant may now qualify for immunity on a case-by-case basis.
These and other changes are designed to make the program more accessible, less bureaucratic and more closely aligned with enforcement practices in other jurisdictions. In keeping with these objectives, the Bureau has also removed the victim-restitution requirement (leaving this issue to be dealt with in civil proceedings), clarified confidentiality protections for applicants and streamlined the procedural steps for granting immunity.
Prosecuting domestic and international cartels is an enforcement priority for the Bureau, and its Immunity Program has been remarkably successful. By encouraging parties to cooperate with the Bureau in its investigations in exchange for immunity or lenient treatment, the Bureau has been able to gather evidence that has secured convictions in dozens of criminal cases and resulted in fines of more than $100 million. The Bureau’s sensible and pragmatic updates to the program are likely to ensure its continued success.
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The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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