Canada: Cartel Enforcement: Fundamental Changes On The Way As Competition Bureau Publishes New Immunity And Leniency Bulletin

Earlier this year, we reported that fundamental and controversial changes were on the horizon for the Competition Bureau's (the "Bureau") Immunity and Leniency Programs (the "Programs"). On September 27, 2018, these changes came into effect with the Bureau's release of a newly published bulletin (the "Bulletin"), which follows two rounds of public consultations. According to the Bureau and the Public Prosecution Service of Canada (the "PPSC"), the changes are intended to improve Canada's detection, investigation and prosecution of criminal violations of the Competition Act (the "Act").1

As will be discussed, the new changes carry with them increased burdens and uncertainties for applicants. As such, applicants should very carefully assess the risks and benefits of participating in the Programs before communicating with the authorities.

Overview: The Immunity and Leniency Programs

Where the Bureau believes that an offence may have been committed under the Act, it may refer the matter to the Director of Public Prosecutions (the "DPP"). The DPP is responsible for criminal offences under the Act, such as price-fixing conspiracies, bid-rigging, and deceptive marketing practices. Where companies and individuals self-report their involvement in such offences under the Act and cooperate in the investigation and prosecution thereof, the Bureau may recommend to the DPP that such persons be granted immunity or leniency in sentencing. The Bulletin seeks to outline the Bureau's approach to making such recommendations, to which the DPP is notably not bound.

According to the Bulletin, the Immunity Program is available to the first party to self-report an offence under the Act in circumstances where the Bureau is either unaware of an offence or where the Bureau is aware of an offence and the applicant is the first to provide adequate evidence for referral of the matter to the DPP. In exchange for their participation, immunity applicants are eligible to be completely immunized from prosecution.

The Leniency Program, on the other hand, is available to subsequent applicants that self-report an offence under the Act. Typically, the Commissioner of Competition will only recommend the granting of leniency in sentencing where the applicant has terminated its participation in the cartel, has agreed to cooperate fully and in a timely manner, demonstrates that it was a party to the offence, and agrees to plead guilty.

Key Changes

The most recent round of public consultations has not lead to any significant changes between the May 2018 draft bulletin and the final product. However, in contrast with the former immunity and leniency programs, the Bulletin does introduce the following key changes:

(a) Immunity Program

  • No automatic corporate immunity. Automatic coverage under a corporate immunity agreement for all directors, officers and employees will no longer be provided. Instead, individuals who seek immunity will need to admit their involvement as a party to the offence and demonstrate their willingness to cooperate with the Bureau's investigation.
  • New grant of interim immunity ("GII") stage. The Bulletin adds a new stage to the current immunity process, whereby documentary and testimonial evidence is to be provided following the proffer process.

    • Under the GII, an applicant will receive a conditional form of immunity, subject to the applicant's obligations of continuing cooperation and compliance with the other requirements of the program.
    • Where the applicant is a recidivist, the PPSC may consider whether granting immunity to the applicant is in the public interest before issuing the GII.

      • According to the Bulletin, the DPP will typically only consider previous offences under the Act, provided that they were committed or judicially sanctioned within the ten years leading up to the immunity application.
    • The PPSC will enter into a final immunity agreement only after prosecution has been completed, or when the Bureau and PPSC consider that no further assistance from the applicant is required.
  • New process for privilege claims. The Bulletin introduces a new mandatory protocol for identifying, reviewing and adjudicating privilege claims by immunity applicants.

    • Following the GII stage, the applicant must provide notice of its privilege claims to the Bureau, presumably by delivering a privilege log. Then, the Bureau will refer this information to the PPSC.
    • If it is not persuaded by the applicant's privilege claims, the PPSC and the applicant may agree to appoint an independent counsel to resolve the privilege claim. Otherwise, the PPSC may ask the court to rule on the privilege claim.

(b) Leniency Program

  • Increased fine reductions. Under the former program, the first leniency applicant (i.e., the second party to cooperate after the immunity applicant) could obtain a fine reduction of up to 50%, and subsequent leniency applicants were eligible for a fine reduction of up to 30%. The current program now allows all leniency applicants to benefit from a fine reduction of up to 50%, based on the timing of the application and the value of the party's cooperation.
  • Compliance programs now a mitigating factor. In line with Bureau's Corporate Compliance Programs Bulletin, an effective compliance program will be treated as a mitigating factor.

Our Observations

As mentioned above, the publishing of the Bulletin follows two rounds of public consultations spanning 2017 and 2018. During this time, concerns were raised that the proposed revisions to the Programs would impose significant burdens and uncertainties on applicants and therefore undermine the Programs.2 Although the Bureau clearly took stock of the many criticisms advanced over the course of the consultations, many concerns went unaddressed, at least in part.

For example, it was mentioned that the GII process, now adopted, would increase uncertainty as it would result in a final immunity agreement being provided several years after the initial proffer. Concerns were also raised about the new privilege review process, specifically in relation to whether external counsel's notes and other documents created during the internal investigation, in Canada and in other countries, would have to be disclosed and whether such disclosure could result in a waiver and loss of privilege in other jurisdictions. No clarity has been offered in that regard in the Bulletin. In addition, it was argued that the draft bulletin emphasized significantly the risks of revocation of immunity or expulsion from the Leniency Program. As the many references to revocation and expulsion remain, this too creates uncertainty for applicants of the Programs.

Furthermore, it was noted that the Programs contain no express debarment exemption to leniency applicants, who therefore face debarment from federal public procurement under the government's Ineligibility and Suspension Policy after pleading guilty as part of the leniency process. The new Remediation Agreement Regime,3 which came into force on September 19, 2018, is not available for offences under the Act. Although the draft revised Ineligibility and Suspension Policy that was recently published for consultation suggested shorter ineligibility period for cooperating parties, it did not include debarment exemption for leniency applicants. It therefore remains to be seen whether such exemption will be included in the final revised Ineligibility and Suspension Policy, that is expected to be effective in early 2019.

Immunity and leniency programs can be valuable enforcement tools provided that they follow a predictable and transparent process, especially with regards to legal privilege and confidentiality guarantees. However, participating in such programs is time-consuming, financially demanding, and may involve long-term cooperation requirements. Consequently, potential applicants should make a thorough assessment of the risks and benefits associated with participating in the Programs before communicating with the authorities.

Only time will tell whether the Programs will continue to be what the Bureau considers a "powerful means of detecting criminal activity", or whether would-be applicants will be deterred by the increased burdens and uncertainties associated with the changes.


1 See the Competition Bureau's press release :

2 For a detailed overview of key concerns, see the Canadian Bar Association Competition Law Section's July 2018 submission.

3 As discussed in this recent blog post, the Remediation Agreement Regime provides the possibility for an organization to enter into a deferred prosecution agreement for certain economic crimes.

To view the original article click here

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