Mutual Legal Assistance in Civil Competition Matters (Part III of the Competition Act)

Backgrounder

June 21, 2002

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Amendments to the Competition Act create a new framework to facilitate cooperation between the world's competition authorities. The new Part III will enable the Competition Bureau to request formal assistance from foreign states in obtaining and transmitting evidence located abroad in non-criminal competition matters such as abuse of dominant position. The new framework essentially mirrors existing procedures with respect to criminal matters under the Mutual Legal Assistance in Criminal Matters Act. The amendment establishes a framework that sets out the basic requirements to be incorporated in any agreement negotiated for this purpose.

Basic Requirements

Before Canada enters into a mutual legal assistance agreement, the Minister of Justice must be satisfied that:

• the competition laws of the foreign state are substantially similar to the Canadian Competition Act; and
• any record or thing provided under the agreement will be protected by laws respecting confidentiality that are substantially similar to Canadian laws.

Before the conclusion of a mutual legal assistance agreement, the Minister of Justice must be satisfied that minimum requirements are included in the agreement such as:

• assistance provided to Canada will be comparable in scope to that provided by Canada;
• the circumstances in which Canada may refuse a request;
• confidentiality protections that will be afforded to any record or thing;
• undertakings by the foreign state that any record or thing provided by Canada will be used only for the purpose for which it was requested;
• undertakings by the foreign state that any record or thing provided by Canada will be used subject to any terms and conditions on which it was provided, including conditions respecting applicable rights and privileges under Canadian law;

Any request made under a mutual legal assistance agreement will have to satisfy the Minister of Justice and, ultimately, a Superior Court Judge.