Canada: Canadian Competition Bureau Releases Revised Immunity Program For Consultation

On October 26, 2017, the Competition Bureau released for public consultation a revised version of its Immunity Program (Revised Immunity Program). The Immunity Program is intended to provide incentives to businesses and individuals to report conduct that constitutes an offence under the Competition Act. The consultation period ends on December 29, 2017.

The last time the Immunity Program was updated was more than seven years ago, in 2010, although the Immunity Program's "Frequently Asked Questions" (FAQs) were updated in 2013.

The impetus for the Revised Immunity Program likely stems in part from the Bureau's recent significant defeats in certain criminal cases that involved information obtained under the Immunity Program (see our 2016 Top Competition and Foreign Investment Review Trends for further details). In press materials announcing the release of the Revised Immunity Program, the Bureau described the changes as necessary to allow the Bureau and the Crown to be "prosecution ready." It appears, however, that the Bureau believes that in order to be prosecution ready, it must impose stronger cooperation and disclosure obligations upon immunity applicants under the Revised Immunity Program.

In addition to other changes such as the integration of the Immunity Program FAQs into the description of the program itself, the Revised Immunity Program includes the following key changes:

  • Recording of Proffers. In a practice similar to that of the U.S. Department of Justice, the Bureau has to date touted a "paperless proffer" system, whereby counsel to an immunity applicant can deliver a proffer orally. However, under the Revised Immunity Program, Bureau staff will continue to have the ability to take detailed notes of the oral proffer and will now have as well the ability to take an electronic recording of the proffer. Typically proffers are provided by external counsel and not the parties directly.
  • Four-Stage Process. The Revised Immunity Program now includes an intermediary stage, the Interim Grant of Immunity (IGI), which is effectively a conditional grant of immunity with full immunity contingent on cooperation by the immunity applicant. Under the Revised Immunity Program, the Bureau will recommend to the Public Prosecution Service of Canada (PPSC), the organization responsible for prosecuting criminal offences under federal jurisdiction, the IGI on the basis of proffered information (e.g., records, witness interviews, etc.). Where the Bureau determines that the immunity applicant has not met the requirements of the IGI, the Bureau may make a recommendation to the PPSC to revoke the IGI and to not grant full immunity to the applicant. Only when the PPSC is satisfied that no further assistance is required by the immunity applicant (once enforcement proceedings against other parties are completed) will it grant full immunity. Interestingly, until 2010, the Immunity Program included a similar fourth stage, i.e., the Provisional Guarantee of Immunity (PGI). However, the Bureau removed the PGI from the Immunity Program to reduce uncertainty for an immunity applicant as to its obligations and assurances in respect of its agreement to cooperate with the Bureau; to align the program with the prevailing practice of partner enforcement authorities, thereby simplifying the process for protection in multiple jurisdictions; and to reflect what had become the Bureau's and the PPSC's practice (i.e., typically only the PGI was ever issued to an immunity applicant, and this became the de facto final agreement). The introduction of the IGI step underscores the emphasis that the Bureau is placing on continued cooperation from immunity applicants.
  • Recorded Witness Interviews. While interviewing of relevant individuals is an accepted and important part of any immunity program, including the current program in Canada, the Revised Immunity Program provides that the Bureau "may" now audio- and/or video-record witness interviews. However, the revised program does not provide any guidance on what will influence the Bureau's decision to record certain interviewees and not others. Further, the Revised Immunity Program requires such witness interviews to be completed within six months of the IGI. These proposed practices may also impede international agency cooperation.
  • Enhanced Disclosure Requirements and Privilege Determination. The Revised Immunity Program requires the disclosure of all non-privileged, relevant documents, including internal investigative records. Further, under the Revised Immunity Program, if an applicant withholds an otherwise relevant record on the basis of legal privilege, within 30 days of the IGI being issued, the applicant would be required to provide the Bureau with notice of the claim of privilege, the specific privilege being relied upon and the nature of the record to which privilege is attached. The Bureau will provide such information to the PPSC, which can require a determination of the privilege claim from an independent counsel pursuant to certain processes as described in the Revised Immunity Program. Again, failure to cooperate could trigger the revocation of the IGI.


While the proposed changes in the Revised Immunity Program may be aimed at incentivizing businesses and individuals to report conduct that constitutes an offence under the Competition Act, the contemplated changes seriously risk upsetting the balanced Immunity Program currently in place and having a "chilling" effect, discouraging immunity applicants from coming forward. For example, the increased uncertainty associated with witness interview recordings and, further, whether such recordings could be discoverable for subsequent civil liability proceedings will undoubtedly raise concerns for immunity applicants. The enhanced disclosure requirements and the addition of the conditional interim immunity stage may also complicate the timing and processes associated with complex global investigations that require coordination of immunity applications across multiple jurisdictions. Recourse to the Immunity Program has declined in recent years for a number of reasons, including increased uncertainty and cost, and the contemplated changes could easily exacerbate that decline. Is it really necessary to fix a program that is not broken?

Interested stakeholders have an opportunity until December 29, 2017, to provide comments and seek to influence the Revised Immunity Program.

Read the full text of the Revised Immunity Program.

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

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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