Canada: Competition Law Bulletin - A Clearer, Less Ambiguous Immunity Program In Canada

On October 10, 2007, the Competition Bureau published a new Bulletin, together with explanatory responses to Frequently Asked Questions, regarding its Immunity Program under the Competition Act. The new Bulletin replaces the Immunity Bulletin that has been in effect since September 2000. Significant improvements have been made to the Bureau’s Immunity Program, particularly for potential immunity applicants and their counsel in cases which have a foreign element and where coordinated multi-jurisdictional immunity applications are required.

Improvements to the Immunity Program include:

  • Greater alignment with programs in other jurisdictions, particularly the U.S. and E.U.
  • Improved confidentiality protections for applicants
  • Clearer rules on the relationship between corporate applicants and their employees who may be implicated in an offence
  • A new standard for disqualifying applicants from the program
  • Expanded guidance on application procedures

The new Bulletin enhances clarity and predictability in the administration of the Immunity Program, but it also emphasizes that applicants for immunity have a time-limited and demanding course to follow if they are to obtain and maintain a grant of immunity from prosecution in Canada.

Improved International Convergence

A number of eligibility criteria and disclosure obligations in the original Canadian Immunity Program differed considerably from those in foreign programs, and generated delay and uncertainty for parties involved in international cartel cases. These differences included the ineligibility of the "instigator, leader or sole Canadian beneficiary" of a cartel, disclosure requirements that were ambiguous and overly broad, risks of revocation of immunity that were uncertain, and confidentiality requirements that created potential conflicts with Sarbanes Oxley and other foreign regimes. The new program is much better aligned in many respects with requirements in other jurisdictions.

New Standard For Disqualification

The new Bulletin replaces the former subjective criteria of disqualifying the leader or instigator of a cartel with a new and objective standard: Did the immunity applicant coerce other parties to participate? Uncertainty over subjective issues like the "leadership" of a multi-party conspiracy are put to rest by adopting the more objective coercion standard, which in practice is used internationally. There are, however, a few problems with the new standard. First, the meaning of coercion may be unclear, particularly where a cartel is led by a dominant participant. Second, it is possible that a party, particularly a dominant firm in a concentrated industry, could instigate and run a cartel without "coercing" other parties to participate. As a policy matter it is undesirable to allow the party that instigated a cartel to pre-empt the other participants in a race for immunity. Despite these problems, the coercion standard may be the best alternative.

Improved Confidentiality Protections

The new Bulletin continues to guarantee the confidentiality of an immunity applicant’s identity, but it seeks a better balance between the importance of protecting an applicant’s identity, particularly during the early stages of an investigation, and the need to ensure adequate investigatory freedom for the Bureau, particularly as an investigation matures. The Bulletin introduces new specific exceptions to the general confidentiality commitment, including where disclosure is necessary to obtain judicial authorization for a warrant or other compulsory investigative power. The new exceptions provide applicants with clear notice of the rules, and remove a restraint that had previously tied the Bureau’s hands in at least one important investigation. However, the scope and application of these exceptions will require careful consideration as practice emerges. In a confidence-boosting commitment, the Bulletin also makes it clear that the Bureau will not supply information in a civil proceeding without a Court order, and that it will take measures to oppose or limit the scope of such an order.

The Bulletin imposes corresponding confidentiality obligations on the immunity applicant in order to avoid premature disclosure of an investigation. The prior program was unnecessarily rigid and inflexible in this respect, but the new Bulletin recognizes that an applicant may be required by law in another jurisdiction to disclose a grant of immunity, and provides a procedure for balancing investigative requirements with other legal obligations of the applicant.

Revocation Of Immunity

The Bulletin re-emphasizes the critical criteria for revocation of immunity once granted, and introduces new safeguards for parties facing revocation. Essentially, immunity will only be revoked as a result of deliberate non-cooperation. Revocation as a result of non-disclosure of other offences has been restricted to competition offences, and will apply only if there has been an intentional effort to mislead the Bureau. Before revoking immunity, the Director of Public Prosecutions will provide an applicant with 14 days written notice, allowing the applicant an opportunity to correct the non-cooperation. If immunity is revoked, the revocation will only affect non-cooperating parties: for example, if the immunity of a business is revoked, its cooperating employees will retain their immunity.

Changes To Application Procedures

The Bulletin continues to promote early immunity applications, maintaining the concept that immunity is granted only to the first party to apply, but also introduces several important changes to the process of seeking immunity. The Bureau appears more flexible in the Bulletin’s treatment of the "marker" and "proffer" procedures. Those procedures facilitate early applications by authorizing oral reporting and guaranteeing a party’s first-in status while it continues to conduct its internal investigation and report the findings. Other procedural changes may be more contentious, including an expectation that individual witnesses may be required to provide evidence prior to confirmation of their immunity. However, in an important move, the current provisional stage in the immunity process is being dropped. Applications will now proceed directly from the marker stage to a final immunity agreement with the Director of Public Prosecutions. This streamlined approach should minimize risks to the credibility of the immunized party and its witnesses, but the Bureau will need to exercise considerable vigilance to ensure that a party with full immunity continues to cooperate with the degree of diligence that these cases require.

Another significant improvement is in the more detailed list, provided in the FAQs, of the information to be included in a proffer. The new list is much more precise and complete than the prior guidance on evidence to be supplied in an immunity application. This list will be particularly helpful in managing the expectations of applicants and foreign legal advisors regarding the evidentiary obligations they face. However, the apparent expectation that all this information can be provided within 30 days of receipt of a marker remains a concern. Moreover, it is clear from the FAQs that the Bureau will not accept the demands of another competition agency as an excuse for delay in Canada. It is to be hoped that the corollary will be better coordination of the competing demands on an immunity applicant by different agencies, but textually, at least, there is a risk of an applicant being pulled in at least two directions simultaneously, while perfecting a marker.

Finally, an important innovation is the provision of standard or template corporate and individual immunity agreements and witness protection letters. Like the other improvements in predictability, this addition will give parties considering an immunity application an advance understanding of the requirements and expectations of the Immunity Program.


The Competition Bureau’s new immunity program represents a substantial step forward in clarity and predictability. It shows a willingness by the Bureau to accommodate the legitimate interests of immunity applicants, as well as a determination not to have Canadian investigative objectives held hostage to those interests. On its face, the Bulletin is more clearly in line with international standards of immunity and leniency in competition cases, particularly in jurisdictions that are critical to Canadian economic activity, including the United States, the European Union and the United Kingdom. It is an important development for parties in Canada and abroad that may have exposure to a Canadian criminal investigation for anti-competitive conduct.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2007 McMillan Binch Mendelsohn LLP

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

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

Mark Opashinov
In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
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 you may opt out by clicking here

    Terms & Conditions and Privacy Statement (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

    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’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.


    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.


    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.

    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 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.


    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.


    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.


    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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

    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

    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

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

    By clicking Register you state you have read and agree to our Terms and Conditions