Immunity Program under the Competition Act

Draft for Public Consultation

This consultation takes place between October 26, 2017 and January 22, 2018 (11:59 pm Pacific time).

This publication is not a legal document. It contains general information and is provided for convenience and guidance in applying the Competition Act.


For information on the Competition Bureau's activities, please contact:

Information Centre
Competition Bureau
50 Victoria Street
Gatineau QC K1A 0C9

Tel.819‑997‑4282
Toll free: 1‑800‑348‑5358
TTY (for hearing impaired): 1‑866‑694‑8389
Fax: 819‑997‑0324
Website: www.competitionbureau.gc.ca

Permission to reproduce

Except as otherwise specifically noted, the information in this publication may be reproduced, in part or in whole and by any means, without charge or further permission from the Competition Bureau provided due diligence is exercised in ensuring the accuracy of the information reproduced; that the Competition Bureau is identified as the source institution; and that the reproduction is not represented as an official version of the information reproduced, nor as having been made in affiliation with, or with the endorsement of the Competition Bureau. For permission to reproduce the information in this publication for commercial redistribution, please Apply for Crown Copyright Clearance or write to:

Communications and Marketing Branch
Innovation, Science and Economic Development Canada
C.D. Howe Building
235 Queen Street
Ottawa, ON K1A 0H5

Email: ISED@Canada.ca

Aussi offert en français sous le titre Programme d’immunité en vertu de la Loi sur la concurrence

top of page

A. Introduction

  1. The Competition Act (the "Act")Footnote 1 is a law of general application that establishes basic principles for the conduct of business in Canada. The Act maintains and encourages competition:
    1. to promote the efficiency and adaptability of the Canadian economy;
    2. to expand opportunities for Canadian participation in world markets while recognizing the role of foreign competition in Canada;
    3. to ensure small and medium‑sized enterprises have equal opportunity to participate in the Canadian economy; and
    4. to provide consumers with competitive prices and product choices.
  2. The Commissioner of Competition (the "Commissioner") is the head of the Competition Bureau (the "Bureau") and has the authority to independently administer and enforce the Act. The Competition Bureau is the organization that carries out investigations under the Act.
  3. The Act includes criminal provisionsFootnote 2 that prohibit anti‑competitive business activities. These include conspiracies between competitors or potential competitors to fix prices, allocate markets or restrict output (e.g., price fixing, market allocation or output restriction agreements), bid‑rigging, and false or misleading representations. The criminal provisions of the Act underline the particular harm caused by certain anti‑competitive behaviour and are considered serious criminal offences. For example, the conspiracy provisionFootnote 3 carries a maximum fine of $25 million and 14 years in prison.
  4. The Bureau, like other law enforcement agencies, recognizes the importance of programs that contribute to the detection, investigation and prosecution of serious crimes. This Bulletin details the Bureau's approach to recommending immunity for self‑reported violations of the Act for companies and individuals that co‑operate in the investigation and prosecution of offences.
  5. This Bulletin describes the roles and responsibilities of the Commissioner and the Director of Public Prosecutions ("DPP")Footnote 4, the requirements an applicant must satisfy to obtain immunity, the impact of corporate immunity on directors, officers, employees and agents, the steps in the immunity process and the impact of failure to comply with the requirements of the Immunity Program. It addresses timing issues, including those that may arise in the context of international criminal activity and multi‑jurisdictional investigations, and sets out the confidentiality assurances that the Bureau will make to an applicant.
  6. This Bulletin does not provide legal advice. The Bulletin expands upon and supersedes earlier bulletins and public statements by the Bureau. Readers should refer to the Act when questions of law arise and obtain private legal advice if a particular situation causes concern.
  7. For the purposes of this Bulletin, the term "party" means a business organization or an individual, as the case may be. The terms "business organization" and "company" are used interchangeably. An "applicant" means a party applying to the Bureau under the Immunity Program.

top of page

B. Roles of the Commissioner and the Director of Public Prosecutions

  1. It is the responsibility of the Bureau to investigate a matter that may engage the Act. Where there is evidence of an offence, the Commissioner may refer a matter to the DPP for consideration. Criminal prosecutions under the Act are the responsibility of the DPP.
  2. The DPP has the sole authority to grant immunity to a party implicated in an offence under the Act. The DPP's policy on the granting of immunity in Competition Act matters is articulated in the Public Prosecution Service of Canada DeskbookFootnote 5.
  3. The respective roles and responsibilities of the Bureau and the DPP are further described in the memorandum of understanding between the Commissioner and the DPP.Footnote 6

top of page

C. Obtaining immunity

  1. A party implicated in domestic or international anti‑competitive activity that may violate the Act's criminal provisionsFootnote 7 may offer to co‑operate with the Bureau and request immunity. A company may, but does not have to, initiate an application on behalf of its employees. Employees may approach the Bureau on their own behalf.
  2. In this Bulletin, the term "immunity" refers to a grant of immunity from prosecution under the Act. A party who does not qualify for immunity but cooperates with the Bureau's investigation may be eligible for a recommendation for lenient treatment in sentencing.

Timing and required information

  1. A party should come forward as soon as it believes it is implicated in an offence to ensure its status as the first‑in to apply for immunity.
  2. It is the Bureau's view that maintaining a first‑in approach encourages parties to apply for immunity as soon as possible. Timing is critical to the Bureau's enforcement interest and, in particular, to locating evidence as quickly as possible and coordinating investigatory steps with other jurisdictions if necessary.
  3. The Bureau will grant an immunity marker, with respect to particular conduct, only to the first party to request immunity.
  4. A concerned party should seek immunity regardless of whether it supplies products directly or indirectly into Canada. The Act may be violated whether or not the applicant supplies products directly or indirectly in, from or into Canada. Cartel offences can arise, for example, where a party does not sell products into Canada as part of a market allocation agreement impeding competition in Canada, contrary to section 45 of the Act, or where a party agrees not to submit a bid in response to a call or request for bids or tenders contrary to section 47 of the Act.
  5. Similarly, in the case of deceptive marketing practices, a party should request an immunity marker if it believes that it has, for example, engaged in deceptive telemarketing contrary to section 52.1 of the Act that targets consumers located outside Canada from call centres located in Canada.
  6. If an applicant later determines that it was not involved in an offence, it should withdraw its immunity request.
  7. It is not necessary for a party to have assembled a complete record of the information required when first contact is made with the Bureau. As the application process progresses, and before an immunity agreement is entered into, the Commissioner and the DPP will carefully examine an applicant's immunity request and subsequent cooperation to ensure that it complies with the Immunity Program's requirements.
  8. An applicant is required to provide complete, timely and ongoing cooperation to the Bureau and the DPP, at its own expense, throughout the Bureau's investigation and any subsequent prosecution, including witnesses' travel to and from the Bureau and/or DPP offices.

Eligibility

  1. Subject to the requirements set out in Part C of this Bulletin, and consistent with fair and impartial administration of the law, the Commissioner will recommend to the DPP that immunity be granted to a party in only the following circumstances:
    1. the Bureau is unaware of an offence, and the applicant is the first to disclose all of the elements of the offence; or
    2. the Bureau is aware of an offence, and the applicant is the first to come forward before the Bureau gathers sufficient evidence to warrant a referral of the matter to the DPP.
  2. An applicant is required to stop participating in the illegal activity to qualify for immunity. When an offence is ongoing at the time that a request for immunity is made, an applicant, at the earliest opportunity, should raise with the Bureau any concerns it may have about what it can or cannot do to comply with this requirement and the possible impact that compliance or non‑compliance could have on the Bureau's investigation.
  3. The applicant must not have coerced others to be party to the illegal activity. The Bureau will disqualify an applicant where there is clear evidence of coercive behaviour. In particular, where there is evidence that the applicant pressured unwilling participants to be involved in the offence, the applicant will not qualify for immunity.
  4. Applicants must admit and be able to demonstrate that they were a party to the offence in order to be eligible for immunity. A party to an offence is an individual or organization described in sections 21, 22 and 22.2 of the Criminal CodeFootnote 8.
  5. Immunity will only be recommended when the disclosed conduct constitutes an offence under the Act and can be supported by credible and reliable evidence which demonstrates all elements of the offence.
  6. When an applicant's profferFootnote 9 provides insufficient information that it committed an offence, the Bureau will make no recommendation to the DPP as to a grant of immunity and will ask that the applicant withdraw its immunity request. In the event that the applicant does not withdraw its immunity request, the immunity marker will be cancelled following a minimum of 14 calendar days' notice to the applicant.
  7. Certain offences under the Act may be carried out by only one business organization. For example, the offence of false or misleading representations may be committed by one organization and be intended for the sole benefit of that organization. A grant of immunity to a sole participant in an offence is of no benefit to the Bureau, as there is no other party to investigate. Where the applicant is the only party involved in the offence it will not be eligible for immunity.
  8. In the absence of an organization's eligibility or application for immunity, particularly when it is the only party to the offence, its directors, officers or employees are encouraged to apply for individual immunity. An individual employed by an organization may be separately eligible under the Immunity Program, as its admissions and evidence may further a Bureau investigation.

Subsequent to the immunity application

  1. In cases in which it does not intend to further investigate, the Bureau will not make a formal recommendation for immunity to the DPP but rather will advise the applicant of the scope of the formal recommendation for immunity that it otherwise would have made to the DPP if the investigation had continued. This typically will be done verbally, unless the applicant requests or circumstances otherwise require that it be done by way of letter. When a matter does not proceed at the Bureau's discretion, the immunity marker is defined and preserved by the scope identified by the Bureau. Matters and conduct not excluded by the Bureau from the immunity marker will not be preserved and will be considered anew should the applicant or another party subsequently seek an immunity marker.
  2. If the Bureau subsequently decides that it will investigate the alleged anti‑competitive conduct, it will advise the applicant and take steps to recommend that immunity be granted in accordance with the Immunity Program, provided that the organizations and/or individuals that would be covered by the recommendation for immunity continue to meet its conditions.
  3. The Bureau will not commence civil proceedings against an applicant in relation to the same or substantially the same facts that formed the basis of a grant of immunity in relation to the criminal provisions of the Act. The Bureau will treat the applicant in the same manner as if it had pleaded guilty to the offence for which it received immunity.

Cooperation required

  1. Throughout the course of the Bureau's investigation and subsequent prosecution by the DPP, the applicant must provide complete, timely and ongoing cooperation. While the scope and content will vary with each case, at a minimum, cooperation includes the following:
    1. Confidentiality. Confidentiality helps to ensure that the integrity of the Bureau's investigation is maintained, that evidence is not destroyed, and that targets of the investigation do not become prematurely aware of investigative steps.

      Unless made public by the Commissioner or the DPP, or as required by law in Canada or elsewhere, the applicant shall not disclose its application for an immunity marker, its cooperation and subsequent grant(s) of immunity, or any related information, to a third party.

      Where disclosure is required by law, the applicant must give notice to and consult with the Bureau and the DPP on how to protect the interests of the investigation in light of the disclosure requirement. The applicant shall give this notice as soon as it becomes aware of the disclosure requirement.

      Additionally, an applicant may disclose its application for an immunity marker and subsequent grant(s) of immunity, or any related information to:

      1. its counsel;
      2. agencies in foreign jurisdictions to which the applicant has made similar applications for immunity or leniency; and,
      3. with the prior consent of the Bureau, to any third party. Depending on the circumstances, the Bureau may require that the applicant obtain the consent of the DPP.

      If an applicant or any of the individuals within the scope of the applicant's immunity application improperly disclose the application before obtaining consent or otherwise notifying the Bureau, they risk being found in breach of the cooperation requirement and may be ineligible to receive a grant of immunity. The Bureau and DPP will consider each unauthorized disclosure on a case‑by‑case basis having regard to all of the circumstances in question.

    2. Exhaustive internal investigation. The requirements of the Immunity Program necessitate that an applicant must reveal to the Commissioner and the DPP any and all conduct of which it is aware, or becomes aware, that may constitute an offence under the Act and in which it may have been involved.

      Applicants will be expected to exercise reasonable due diligence in determining whether they have been involved in other criminal offences under the Act. Disclosure of the offences should be made as soon as possible after an immunity application and will be required before the Bureau recommends that the DPP sign an immunity agreement with the applicant.

    3. Full, complete and truthful disclosure. The applicant must provide full, complete, frank and truthful disclosure of all non‑privileged information, evidence and records in its possession, under its control or available to it, wherever located, that in any manner relate to the anti‑competitive conduct for which immunity is sought. Further, an applicant must identify all of the other jurisdictions where it has made a similar application for immunity or leniency. Overall, there must be no misrepresentation of any material facts.

      Non‑privileged records to be disclosed in support of an immunity application include those responsive to the required information described in Appendix 2. The Immunity Program does not require applicants to waive applicable legal privileges as a condition for obtaining immunity.

      When an applicant chooses to withhold an otherwise required record on the basis of legal privilege, the applicant, without waiving the privilege, must provide the Bureau with notice of: the claim of privilege; the specific legal privilege being relied upon; and, the nature of the record to which the privilege is purported to attach. The Bureau will provide the DPP with this information who may seek determination of the privilege claim from an independent counsel ("IC") in accordance with the process described in paragraph 96 and Appendix 4. Failure to comply fully, truthfully and in a timely manner or refusal to abide by the determinations made by the IC may constitute a breach of the cooperation requirement and result in the immunity marker being cancelled or in the DPP denying a grant of immunity.

      Offences uncovered after the granting of the marker must be brought to the attention of the Bureau and the DPP at the earliest possible time. The Immunity and Leniency Programs may apply to the additionally disclosed conduct.Footnote 10

      An applicant or any of the individuals within the scope of the applicant's immunity application who provides false or misleading information to the Bureau in the context of an immunity application and/or during the performance of related obligations may be considered ineligible for immunity. Such a person could also face a criminal charge of obstruction under section 64 of the Act, or of destroying or altering records under section 65 of the Act, or charges, including perjury or obstruction, under the Criminal Code.

      When an applicant becomes aware of instances of obstruction or destruction of records or other things arising in relation to activity for which immunity is sought, it should be brought to the attention of the Bureau as soon as possible. While each instance will be considered on a case‑by‑case basis, generally the approach taken by the Bureau and the DPP will result in the ineligibility of individuals involved with the obstruction or destruction for immunity. The applicant may be ineligible for immunity when it was complicit in the misconduct or as a result of the misconduct cannot demonstrate each element of the offense for which the marker is sought.

    4. Witness cooperation. Companies must take all reasonable measures to secure the co‑operation of current directors, officers and employees suspected of being involved in or having knowledge of an offence for the duration of the investigation and any ensuing prosecution. Companies must also take all reasonable measures to secure the co‑operation of former directors, officers and employees as well as current and former agents suspected of being involved in or having knowledge of the offence, where doing so will not jeopardize the investigation and where the company has the consent of the Bureau or the DPP, as set out in (a). Companies shall encourage such persons to voluntarily provide to the Commissioner and the DPP all non‑privileged information, evidence and records in their possession or under their control, wherever located, that in any manner relate to the anti‑competitive conduct. Companies must facilitate the ability of current and former directors, officers, employees and agents to appear for interviews and to provide testimony in judicial proceedings in connection with the anti‑competitive conduct; and,
    5. Financial commitment. Parties must co‑operate with the Bureau's investigation and any subsequent prosecution at their own expense, including, but not limited to, all costs related to document production, translation and travel.

top of page

D. Impact of corporate immunity on directors, officers, employees and agents

  1. If a company qualifies for a recommendation for immunity, all current directors, officers and employees who admit their involvement as a partyFootnote 11 to, or their knowledge of an offence under the Act as part of the corporate admission, and who are willing to provide complete, timely and ongoing co‑operation in the Bureau's investigation and any subsequent prosecution, also qualify for the same recommendation for immunity. Former directors, officers and employees who admit their involvement as a party to, or their knowledge of, an offence under the Act and offer to co‑operate with the Bureau's investigation and any subsequent prosecution may qualify for a recommendation of immunity. However, the Bureau will make any such determination on a case‑by‑case basis.
  2. Agents of a company that qualifies for a recommendation for immunity may be included in the same recommendation for immunity. The Bureau will make any such determination on a case‑by‑case basis. To qualify, an agent will, be required to admit their involvement in or knowledge of the illegal conduct and be willing to provide complete, timely and ongoing co‑operation with the Bureau's investigation and any subsequent prosecution.
  3. If a company does not qualify for a recommendation for immunity, current or former directors, officers, employees or agents may nonetheless be considered for immunity, as though they had approached the Bureau individually. To qualify, these parties will be required to admit their involvement in the illegal conduct and be willing to provide complete, timely and ongoing co‑operation with the Bureau's investigation and any subsequent prosecution.

Obtaining the cooperation of directors, officers, employees and agents

  1. If an applicant requires the cooperation of a current director, officer, employee or agent and is concerned that approaching the person could alert other parties to the offence and affect the Bureau's investigation, the applicant should contact the Bureau for guidance before approaching the person.
  2. Current and former directors, officers, employees and agents who intend on cooperating with the investigation must abide by the confidentiality obligations and the other requirements in Part C or risk being excluded.

top of page

E. International anti‑competitive conduct

  1. The timing of an approach to the Bureau can be critical to the options available to a potential immunity applicant. A party considering an application for immunity should appreciate that when the matter involves other countries, the Bureau may be aware of the matter as a result of a foreign investigation before being approached.
  2. In matters involving multiple jurisdictions, a party should consider approaching each jurisdiction's competition law authority, or the authority responsible for deceptive marketing practices, in an effort to secure its advantage under all applicable immunity programs. A party whose business activities have a substantial connection to Canada should contact the Bureau before, or immediately after, approaching foreign competition law authorities.
  3. As part of an applicant's ongoing cooperation, absent compelling reasons, the Bureau will expect a waiver allowing communication of information with jurisdictions to which the applicant has made similar applications for immunity or leniency. Such waivers shall be provided immediately and are expected to cover both substantive and procedural information.

top of page

F. The immunity process

  1. The immunity process is predicated upon ongoing obligations owed by the applicant to the Bureau and the DPP. An applicant is required to provide complete, timely and ongoing cooperation to the Bureau and the DPP, at its own expense, throughout the Bureau's investigation and any subsequent prosecution. When the requirements are satisfied, the applicant will be eligible for immunity from prosecution for the offence(s) disclosed.
  2. An applicant who misleads the Bureau or proceeds in bad faith may be disqualify from the Immunity Program and/or may face a criminal charge of obstructing a Bureau inquiry or examination under section 64 of the Act or of destroying or altering records under section 65 of the Act. Providing false or misleading information can also lead to charges, including perjury or obstruction, under the Criminal Code.

Step 1: Initial contact (the marker request)

  1. An "immunity marker" is the confirmation given to an applicant that it is the first party to approach the Bureau requesting a recommendation of immunity with respect to an offence under the Act. The immunity marker guarantees the applicant's place at the front of the line, subject to the applicant meeting all of the requirements of the Immunity Program.
  2. A party may request an immunity marker for anti‑competitive conduct subject to sanction under the criminal competition provisions of the Act. Offences described in sections 45 to 49 of the Act, including conspiracy (sections 45 and 46) and bid‑rigging (section 47), are the purview of the Bureau's Cartels Directorate. False or misleading representations and deceptive marketing practices (sections 52 through 55.1) are the purview of the Bureau's Deceptive Marketing Practices Directorate.
  3. In addition, an individual may request an immunity marker for such offences when liability arises from aiding or abetting any of these offences contrary to section 21 of the Criminal Code or counselling any of these offences contrary to section 22 of the Criminal Code.
  4. Only one immunity marker will be granted for each offence, regardless of whether liability arises directly from the Act or through the application of section 21 and/or 22 of the Criminal Code.
  5. An applicant can make the first contact on the basis of a limited hypothetical disclosure that identifies the nature of the criminal offence it has committed in respect of a specified product or business interest. At this stage of the process, the applicant's identity does not need to be disclosed.
  6. Although an applicant can provide a limited disclosure during its first contact, the Bureau nevertheless requires sufficient information to determine whether an applicant is first‑in under the Immunity Program. It does this by comparing the conduct and product or business interest description provided by the applicant to information already in the Bureau's possession. This enables the Bureau to determine whether another party previously requested an immunity marker for the same conduct and product.
  7. For this reason, it is imperative that the applicant, when identifying the offence, provide a precise product or business interest definition, including a description of any sub‑products that may be covered within the scope of the immunity marker request, as well as the time period for the conduct in question. In some circumstances, the Bureau may request more detailed information regarding the offence, the product or geographic market, the relevant time period or the other parties involved to assist it in the determination of whether the requested immunity marker is available.
  8. The Bureau generally will not consider joint requests—only one party per offence will receive an immunity recommendation under the Immunity Program. The Bureau may make an exception in the case of a joint request from companies that are affiliated, as defined in subsection 2(2) of the Act.
  9. While the request is typically made by an applicant's legal representative, anyone may initiate a request for immunity by communicating with the Deputy Commissioner of Competition, Cartels Directorate, or the Deputy Commissioner of Competition, Deceptive Marketing Practices Directorate, as the case may be, to discuss the possibility of receiving immunity from prosecution in connection with an offence under the Act.
  10. Typically, a Canadian lawyer represents the applicant in its dealings with the Bureau, although foreign counsel may be present at certain meetings. When in Canada, foreign counsel must ensure that they are acting in accordance with the requirements of the relevant provincial law society or bar association.
  11. It is recommended that an immunity marker request be made by telephone and that the applicant clearly states that it is making an immunity marker call. The applicant should ensure that all information is clearly received and that it and the Deputy Commissioner are in agreement that an immunity marker has been requested on the date and time of the request, and that they both agree on the description of the relevant product or business interest.
  12. An applicant cannot rely on any alternative contact, for example, a Bureau officer or a DPP employee, in respect of its application to obtain an immunity marker.
  13. As soon as possible following the request, usually within a few days of receiving all requested information, the Deputy Commissioner will advise the applicant whether the requested immunity marker is available. If available, the Deputy Commissioner will also provide the name and contact information of the officer with carriage of the matter.
  14. If not previously provided, upon issuance of the immunity marker the applicant is required to identify itself to the Deputy Commissioner or to the officer with carriage of the file in order to facilitate the Bureau's investigation.

Step 2: Proffer

  1. Once an immunity marker is granted, the applicant has 30 calendar days to provide the Bureau with a detailed statement describing the illegal conduct. This statement is known as a "proffer." A date to provide the proffer can be set by contacting the officer with carriage of the file. In general terms, the proffer serves to provide the Bureau with a sufficient understanding of the conduct, the context in which it occurred and the evidence available to support the allegations.
  2. Proffers are generally provided on a without prejudice basis by an applicant's counsel. Topics to be covered in a proffer include those set out in Appendix 2.
  3. In the proffer, an applicant describes in detail the illegal conduct demonstrating each element of the offence, the applicant's role in the offence for which immunity is sought, and the effect of the illegal activity in Canada. The applicant must also outline all of the supporting evidence and witnesses that it can provide at that point in time as part of its cooperation under the Immunity Program.
  4. While each case will need to be explained on its own terms, the Bureau will not under any circumstance accept a bare outline of the conduct or speculation as to the applicant's role. A comprehensive disclosure at this juncture is required.
  5. The Bureau will accept both oral and written proffers. In oral proffers, Bureau staff will take detailed notes of the information or take an electronic audio recording. Applicants should take special care to ensure that all information is clearly stated in a manner that allows sufficient time for note‑taking. Accuracy is critical since the Bureau relies on the information to assess the immunity application, to develop its immunity recommendation and to pursue its investigation.
  6. The timing of a proffer can affect other steps in the Bureau's investigation, such as the execution of a search warrant or coordinated enforcement with another jurisdiction. In certain circumstances and at its sole discretion, the Bureau may require the applicant to make its proffer early within the 30 calendar day period and to provide documentary evidence and access to witnesses, which may be taken under oath and may be video and/or audio recorded before the proffer is completed. Any records provided to the Bureau at this stage will be received on a without prejudice basis and any interview will be conducted under the assurance that information provided will not be used directly against the applicant for investigative purposes.Footnote 12 The Bureau will not return records to the applicant.
  7. At the request of the Bureau, the applicant must advise the Bureau, in a manner that does not waive any legal privilege, of the progress of its internal investigation so that the Bureau can determine if information may be lacking.
  8. The applicant should alert the Bureau to any impediments to complying with the Bureau's required schedule as early in the process as possible to avoid prejudice to the Bureau's investigation. If an applicant cannot complete its proffer within 30 calendar days after an immunity marker has been granted then it should seek an extension from the Deputy Commissioner or risk having its immunity marker automatically cancelled. Upon a request to the Deputy Commissioner to extend the proffer period beyond 30 calendar days, the applicant should be prepared to provide the reasons for the delay, information on the status of its internal investigation, a detailed proposed work plan for completing its proffer, and an update on the status of its cooperation with other agencies.
  9. The Deputy Commissioner will decide whether any delay in cooperation is reasonable. A delay may be warranted in complex cases however the Bureau will not accept delays solely because an applicant has commitments arising out of other jurisdictions or because the applicant's counsel is unavailable.
  10. In certain circumstances, the Deputy Commissioner may request an undertaking from the applicant that it will provide the information by a specified date, together with an acknowledgement that its immunity marker will automatically lapse if the undertaking is not fulfilled. In the absence of an extension to complete the proffer, delays may result in the automatic lapsing of the applicant's immunity marker.
  11. There is no obligation on the Deputy Commissioner to notify the applicant that its immunity marker has lapsed in such circumstances. Rather, it is the applicant's responsibility to seek an extension from the Deputy Commissioner in such cases.
  12. The Deputy Commissioner may also cancel an immunity marker if the applicant fails to meet any of the other requirements of the Immunity Program. Under these circumstances, the decision to cancel an immunity marker will be made only after a minimum of 14 calendar days' notice to the applicant.
  13. Applicants have a positive obligation to update their proffered information as they become aware of either new or corrected information. This must be done promptly and on an ongoing basis, regardless of whether the Bureau has specifically asked for the information. Further, the Bureau expects that applicants will provide timely responses to any questions the Bureau may have.
  14. If the Bureau concludes that the applicant demonstrates its capacity to provide full co‑operation and fully satisfy the requirements of Part C, it will present all relevant proffered information, together with a recommendation regarding the applicant's eligibility under the Immunity Program, to the DPP.
  15. The Bureau considers a proffer to be complete when it has received sufficient information to make a comprehensive recommendation to the DPP that it should issue an Interim Grant of Immunity ("IGI") for all conduct contemplated under the immunity marker. Applicants should contact the Deputy Commissioner directly to modify the scope of the immunity marker, if necessary.
  16. While the DPP will give the Bureau's recommendation due consideration, the DPP has final independent authority to decide whether it will enter into an IGI and, where warranted, an immunity agreement with an applicant.

Step 3: Interim grant of immunity: Full disclosure and cooperation

  1. On the basis of the conduct described in the Bureau's recommendation, the DPP may issue an IGI to the applicant. The purpose of the IGI is to facilitate the Bureau's investigation by formalizing the framework within which an applicant will disclose records and make witnesses available.
  2. The full disclosure process will be conducted on the understanding that neither the Bureau nor the DPP will use the information against the applicant or its individuals, unless the applicant or individual is found to be ineligible for immunity or otherwise fails to comply with the terms and conditions of the IGI.

The nature of the IGI

  1. An IGI can be granted to a business organization or an individual. When an IGI is to be granted to an organization, the individuals who were involved in or knowledgeable of the conduct and who are willing to cooperate with the terms and conditions of the Immunity Program may be eligible for coverage under the IGI.
  2. The applicant will provide the Bureau, on a "without prejudice" basis, the names and titles of the individuals and affiliates it wishes to include in the IGI. Relevant individuals and affiliates may be added or removed, as necessary. Counsel should confirm that each identified affiliate was implicated in the conduct and that each individual is prepared to admit his or her knowledge of or participation in the anti‑competitive conduct and their willingness to cooperate in a complete, timely and ongoing manner.
  3. No identified current director, officer or employee, and no identified agent or former director, officer or employee will be excluded from coverage under the IGI for any reason other than a failure to admit his or her knowledge of or participation in the anti‑competitive conduct or a failure to cooperate in a complete, timely and ongoing manner.
  4. The Bureau will recommend to the DPP that it remove from the IGI those individuals who cannot or will not admit their knowledge of or participation in the anti‑competitive conduct as well as those individuals who have demonstrated an unwillingness to cooperate in a complete, timely and ongoing manner. Further, the Bureau will make a recommendation to the DPP that the witness be excluded from the immunity agreement and/or face prosecution. Typically, the Bureau will discuss the situation with the witness and provide the witness with a reasonable opportunity to cooperate with the Bureau's investigation and any subsequent prosecution before making such a recommendation to the DPP. The DPP may, as a result of the Bureau's recommendation, or on its own initiative, exclude the witness from the immunity agreement.
  5. When an individual is to provide evidence pursuant to a business organization's IGI, he or she will be provided with a letter from the DPP that confirms that the individual is covered under the business organization's IGI.
  6. Templates of the organizational IGI, the individual IGI and the confirmation letter that an individual is covered under the corporate IGI can be found at Appendix 3.
  7. The legal force of the IGI will be extinguished upon the grant of immunity.

Disclosure under the IGI

  1. After an applicant enters into an IGI with the DPP, the applicant must complete the full disclosure process. The full disclosure process can be expensive and time‑consuming. The applicant must be prepared to dedicate the appropriate resources to support the Bureau's interest in conducting an expeditious and thorough investigation.
  2. The Bureau requires full, complete, frank and truthful disclosure of all non‑privileged relevant information, evidence or records in the applicant's possession, under its control or available to it, wherever located, that, in any manner, relate to the anti‑competitive conduct.
  3. The topics addressed by an applicant's disclosure will generally be the same as those addressed at the proffer stage but will be covered in greater detail and supported by documentary and testimonial evidence.
  4. A schedule for disclosure should be established early in the immunity process and production of information and records completed within the disclosure period, normally within a six‑month timeline. Unwarranted delays or failure to provide access to witnesses arising from other commitments, including those commitments that arise from immunity or leniency applications in other jurisdictions, may be considered by the Bureau to be a breach of the IGI.
  5. Applicants are expected to take all reasonable measures to secure the cooperation of current directors, officers and employees, as well as any agents or former directors, officers or employees covered by the IGI, and to facilitate their ability to appear for interviews and provide testimony in judicial proceedings at the applicant's expense.
  6. An applicant will provide proffered statements identifying material witnesses and describing each's knowledge of and involvement in the relevant conduct and/or impacts on the Canadian marketplace as soon as practicable. Bureau officers ordinarily will request to interview witnesses as soon as possible.
  7. An applicant should anticipate that witnesses will be asked about any criminal convictions. Before offering immunity, it is essential that the DPP be satisfied that witnesses disclosed all information likely to affect their credibility. Such disclosure may relate to criminal activity in Canada or abroad.
  8. Records relevant to a witness interview should be provided to the Bureau by the applicant at least two weeks before an interview. Upon submission, the applicant is expected to explain the relevance and significance of the records in relation to the witness interview. Delay in submitting relevant records or providing voluminous amounts of records with insufficient lead time could result in the rescheduling of the witness interview.
  9. Witness interviews may be taken under oath and may be video and/or audio recorded.
  10. In the course of the investigation the Bureau may require that a witness be interviewed more than once.
  11. With respect to the disclosure of records, an applicant should consult with the lead officer assigned to the matter in order to discuss the relevance and scope of records to be produced and the form in which they will be provided. The Bureau does not need or want records that are not relevant to the offence—"record dumps" are not acceptable. An applicant is required to discuss its record production with the Bureau on an ongoing basis and to raise any concerns or challenges early in the process.
  12. The Bureau typically requires that records be produced in electronic format. Applicants must consult the Bureau's Enforcement Guidelines on the Production of Electronically Stored Information and discuss the general technical requirements with the lead officer assigned to the file. In many instances, it will be necessary to arrange for direct contact between the technical experts for each side to discuss any issues associated with the transfer or reception of records.
  13. When requested by the Bureau or the DPP, the applicant is expected to produce certified translated records and to arrange for a certified interpreter to accompany its witnesses. Neither the Bureau nor the DPP will bear the cost of translation with respect to records not drafted in one of Canada's official languages nor the cost associated with witness interpretation.
  14. Applicants have a positive obligation to update all information promptly as it becomes aware of either new or corrected information, including records or witnesses. This must be done on an ongoing basis regardless of whether the Bureau specifically asks.
  15. Within 30 days of the IGI being issued, claims of privilege over records otherwise described in paragraph 83 or responsive to the required information described in Appendix 2 must be disclosed to the Bureau along with the specific legal privilege being claimed and, without waiving the privilege, the nature of the records over which the privilege is being claimed. Upon reception of this information, the Bureau will seek the advice of the DPP. If the DPP is not persuaded of the privilege claim's sustainability it will notify the applicant within 14 days that it is appointing an IC from its list of available crown agents and require the applicant to submit the sealed documents to the IC within 14 days of the appointment. The applicant is expected to abide by the determinations made by the IC who will determine the validity of the claim of privilege and its scope expeditiously. Further information respecting claims of privilege can be found in Appendix 4.
  16. Accuracy of the information provided is critical to the Bureau. The Bureau relies on this information to pursue its investigation of other participants to the alleged offence. An applicant that provides false or misleading information to the Bureau or fails to fully cooperate in accordance with its obligations may face revocation of its IGI. As provided above, the applicant may also face criminal charges under the Act or the Criminal Code.

Step 4: Immunity agreement

  1. An immunity agreement is an agreement between the DPP and an applicant setting out the terms and conditions under which the DPP grants the applicant immunity from prosecution. It also states who is covered by the agreement, and under what circumstances the agreement can be revoked.
  2. Upon recommendation by the Bureau, and if, after review, the DPP accepts the recommendation, the DPP will execute an immunity agreement.
  3. All individuals identified in the IGI who upheld the requirements of the program and were otherwise determined to be eligible for immunity, and all affiliates demonstrated to be implicated in the unlawful conduct will be included in the immunity agreement.
  4. Both the applicant and the DPP must sign the agreement. The Commissioner also signs the agreement for the purpose of giving effect to the Commissioner's rights and obligations as set out in the agreement. Sample corporate and individual template agreements are available in Appendix 3.
  5. While each case will be weighed on its own merits, the DPP ordinarily will not issue the immunity agreement prior to:
    1. the lapse of the statutory period to file a notice of appeal, when no party seeks to appeal the trial court decision in the event of a criminal prosecution; or
    2. when the Commissioner and DPP have no reason to believe that further assistance from the applicant could be necessary.

top of page

G. Failure to comply with the obligations of the interim grant of immunity

  1. Where the Bureau becomes aware that an applicant does not meet or has not met the terms and conditions set out in the IGI, the Bureau may make a recommendation to the DPP not to enter into an immunity agreement and to revoke the IGI, if warranted. Typically, the Bureau will discuss the situation with the applicant and provide an opportunity to the applicant to address any shortfalls in its cooperation as quickly as possible before making a recommendation for revocation to the DPP.
  2. As a result of the Bureau's recommendation, or on its own initiative, the DPP may revoke an IGI and not enter into an immunity agreement where the applicant is not eligible for immunity or does not otherwise meet all of the terms and conditions of the IGI, and take further action against the applicant as appropriate in the circumstances. Where the DPP determines that the applicant is not eligible for immunity or has otherwise failed to fulfil the terms and conditions set out in its IGI, the DPP will provide a minimum of 14 calendar days' notice to the applicant so that it has an opportunity to remedy its failure before revoking the IGI.Footnote 13
  3. Revocation of an IGI and other responses to non‑compliance will affect only the individual or organization that is not cooperating or that otherwise fails to comply with the IGI. An organization's coverage under an IGI can be revoked while its cooperating directors, officers, employees or agents who are covered under the IGI retain their protection. Likewise, it is possible for an individual's coverage under an IGI to be revoked while the organization remains covered.

top of page

H. Confidentiality

  1. The Bureau treats as confidential the identity of a party requesting immunity. The only exceptions to this policy are where:
    1. disclosure is required by law;
    2. disclosure is necessary to obtain or maintain the validity of a judicial authorization for the exercise of investigative powers;
    3. disclosure is for the purpose of securing the assistance of a Canadian law enforcement agency in the exercise of investigative powers;
    4. the party has agreed to disclosure;
    5. there has been public disclosure by the party; or
    6. disclosure is necessary to prevent the commission of a serious criminal offence.
  2. The Bureau treats as confidential information obtained from a party requesting immunity, subject only to the exceptions listed in paragraph 106 above, or where disclosure of such information is otherwise for the purpose of the administration or enforcement of the Act.
  3. Typically, the identity of an applicant will remain confidential until charges are laid against other participants to the offence and disclosure of the DPP's case to the accused is required.
  4. Applicants should be aware, however, that their identity may be disclosed before charges are laid if the Bureau relies on their evidence in an application to a Canadian court for a search warrant, production order or judicial authorization of another investigative measure. Recourse to search warrants and production orders, among other things, can be of utmost importance to an investigation. To obtain court authorizations, the Bureau must provide the court with information that there are reasonable grounds to believe that an offence has been, or will be, committed. The Bureau will rely on the information provided by the applicant to establish these grounds.
  5. The Bureau will not allow an applicant's interest in maintaining confidentiality to jeopardize the Bureau's ability to effectively enforce the Act. However, the Bureau will take all reasonable steps to ensure that this type of early disclosure does not occur, except where necessary. The Bureau will draft applications to the courts for authorization of investigative powers, referred to as "Information to Obtain" ("ITOs"), in a manner designed to secure the protection of an applicant's identity, unless the Bureau is of the view that such drafting would not reveal sufficient grounds required to obtain the authorization requested.
  6. If the identity of the applicant cannot be kept confidential when the Bureau applies for such authorization, it will request that the ITO, or relevant portion thereof, be sealed until charges are laid. If a party challenges the sealing order before a court to access the ITO, the Bureau will recommend to the DPP that it resist the disclosure of the applicant's identity and provide a redacted version of the ITO, with the identity of the applicant kept confidential, unless the court orders otherwise. Where it appears likely that disclosure is unavoidable, the Bureau will advise the applicant as soon as possible.
  7. The Bureau's policy with respect to private actions under section 36 of the Act is to provide confidential information only in response to a court order. In the event of such an order, the Bureau will take all reasonable steps to protect the confidentiality of the information, including by seeking protective court orders.Footnote 14

top of page

I. Immunity and related private actions

  1. Arrangements entered into in respect of a coordinated defense to a private action must be subordinate to the overriding commitment owed under the Immunity Program and the terms of the immunity agreement. Moreover, the applicant must keep the Bureau and the DPP apprised on an ongoing basis of the general status of any private action in which it is involved.
  2. The Bureau has no interest in forestalling cooperation, or in penalizing an applicant for cooperating in a private action. In the event that an applicant wishes to cooperate with a civil litigant in exchange for "credit" in respect of any civil liability that may be owed, this interest should be communicated as early as possible to the Bureau and the DPP. This will enable the Bureau and the DPP to determine how the applicant might provide cooperation in the private action without jeopardizing the Bureau's criminal investigation or the DPP's prosecution. Failure by an applicant to advise the Bureau and the DPP of its activities in this regard may jeopardize the applicant's status under the Immunity Program.

top of page

How to contact the Competition Bureau

Anyone wishing to obtain additional information about the Competition Act, the Consumer Packaging and Labelling Act (except as it relates to food), the Textile Labelling Act, the Precious Metals Marking Act or the program of written opinions, or to file a complaint under any of these acts should contact the Competition Bureau's Information Centre.

Address

Information Centre
Competition Bureau
50 Victoria Street
Gatineau, Quebec
K1A 0C9

Telephone

Toll‑free: 1‑800‑348‑5358
National Capital Region: 819‑997‑4282
TTY (for hearing impaired): 1‑866‑694‑8389

Facsimile

819‑997‑0324

The Bureau encourages the public to take advantage of its policies and programs, which facilitate conformity with the provisions of the Competition Act. Anyone wishing to apply under the Commissioner's Immunity Program may contact:

Deputy Commissioner, Cartels Directorate

819-953-7765, or

Deputy Commissioner, Deceptive Marketing Practices Directorate

819-953-3902

top of page

Appendix 1: Criminal provisions of the Competition Act

Part VI of the Competition Act prohibits under criminal sanction: bid rigging, agreements between competitors to fix prices, allocate markets or restrict production, false or misleading representations and deceptive marketing practices. For operational and statistical purposes, those offences found in sections 45 to 49 (Table 1) are treated separately from the criminal false or misleading representations and deceptive marketing practices provisions found in sections 52 through 55.1 (Table 2).

Table 1 — Provisions of the Competition Act handled by the Cartels Directorate

(Responsibility of the Deputy Commissioner of Competition, Cartels Directorate)

Section 45
On or after March 12, 2010: Conspiracies, agreements or arrangements between competitors or potential competitors to fix prices, allocate markets or restrict the supply of a product. Prior to March 12, 2010: Conspiracies, combinations, agreements or arrangements to lessen competition unduly in relation to the supply, manufacture or production of a product.
Section 46
Conspiracies, agreements or arrangements that are implemented in Canada as a result of directives, instructions, intimations of policy or other communication from a person outside of Canada, in a position to direct or influence the policies of the corporation, for the purpose of giving effect to a conspiracy, and that, if entered into in Canada, would have been in contravention of section 45.
Section 47
Bid rigging, when two or more persons agree that one party will refrain from bidding in a call for tenders, or when there is collusion in the submission or withdrawal of bids, unless such actions are made known to the tendering authority.
Section 48
Conspiracies, combinations, agreements or arrangements that limit unreasonably the opportunities, terms or participation of a player or competitor in professional sports, or to limit unreasonably the opportunity to negotiate with or play for a professional team or club.
Section 49
Subject to a number of exceptions explained in section 49 (2), any agreement between two or more federal financial institutions with respect to interest rates or charges on deposits or loans, service charges to customers, kinds of services provided, or the person or classes of persons to whom a loan or other service will be provided or withheld.

Table 2 — Provisions of the Competition Act handled by the Deceptive Marketing Practices Directorate

(Responsibility of the Deputy Commissioner of Competition, Deceptive Marketing Practices Directorate)

Paragraph 52 (1)(a)
Knowingly or recklessly making representations that are false or misleading in a material respect for the purpose of promoting a product or any business interest.
Section 52.01
Knowingly or recklessly send or cause to be sent false or misleading representations pertaining to the sender, the subject matter, the content or the locator information in an electronic message or locator for the purpose of promoting a product or any business interest.
Section 52.1

While engaging in telemarketing (the practice of using interactive telephone communications for the purpose of promoting the supply of a product or any business interest):

  • failing to disclose the identity of the person on whose behalf the communication is being made, the purpose of the communication and the nature of the product or business being promoted;
  • making a representation that is false or misleading in a material respect;
  • requiring any advance payment as a condition for receiving a prize that has been, or supposedly has been, won in a contest or game;
  • failing to provide adequate and fair disclosure of the value of the prizes and of any fact that materially affects the chances of winning;
  • offering a gift (or any product at less than fair market value) as an inducement to buy another product, without fairly disclosing the value of the gift; or
  • requiring payment in advance for any product offered at a price grossly in excess of its fair market value.
Section 53
Sending or causing to be sent a document or notice if the document or notice gives the general impression that the recipient has won or will win a prize or other benefit, and if the recipient is also asked or given the option to pay money, incur a cost or do anything that will incur a cost. Knowingly or recklessly making representations that are false or misleading in a material respect for the purpose of promoting a product or any business interest. The act must be for the purpose of promoting a business interest or the supply or use of a product.
Section 54
Supplying a product at a price that exceeds the lowest of two or more prices that are clearly shown on the product, its container, wrapper or display mount or on any in‑store advertisement. This provision does not actually prohibit the existence of two or more prices, but requires that the product be offered for sale at the lowest price depicted.
Section 55
Making representations relating to compensation under a multilevel marketing plan without fair, reasonable and timely disclosure of compensation actually received (or likely to be received) by typical participants in the plan.
Section 55.1

Establishing, operating, advertising or promoting a pyramid‑selling scheme, which is defined as a multilevel marketing plan under which:

  • a participant pays for the right to receive compensation for recruiting another participant;
  • a participant is required to purchase a specified amount of product (other than an amount bought at the seller's cost price for the purpose of facilitating sales);
  • a participant is supplied with an unreasonable amount of product; or
  • there is no right to return the product in saleable condition on reasonable terms, or the participant is not informed of the right to return the product.

top of page

Appendix 2: Required information

Topics to be covered in a proffer may include those set out below. This list is not intended to be exhaustive and the information required will depend on the facts and the relevant offence. For example, evidence of an undue lessening of competition will be required in the case of a conspiracy where some of the conduct pre‑dates March 12, 2010 (when the current conspiracy provision came into force). Other information, such as the use of deceptive telemarketing scripts, is likely to be relevant only in the context of false or misleading representations and deceptive marketing practices.

The parties

  • a general description of the applicant and the other parties implicated in the conduct;
  • the individuals involved in the offence;
  • business ownership structures, including affiliations;
  • the applicant’s share of, and role in, the market;
  • membership in, or involvement with, trade or other associations;
  • the nature and level of involvement in the offence;

The product

  • the physical and technical characteristics of the product;
  • quality claims;
  • the end use and value of the product;

The industry

  • a general description of the industry and how it functions;
  • how pricing in the industry works;
  • the regulatory framework;
  • the existence and nature of contracts;
  • how the product is supplied;
  • customer or supplier countervailing power;
  • use of targeted lists by telemarketers;

Market information

  • other market participants (domestic or foreign) and their market shares;
  • a description of key customers in Canada and elsewhere;
  • the geographic locations of sellers and customers;

The conduct

  • a description of the conduct, including the nature and timing of communications among competitors or corporate policies or procedures designed to deceive customers;
  • the time period of the conduct;
  • the geographic scope of the conduct;
  • the representations involved and the medium;
  • monitoring or enforcement measures utilized in carrying out the offence;
  • whether any agreements or arrangements were set out in writing;
  • whether other participants continue to engage in the conduct;
  • measures taken to conceal the conduct or the identity of the participants;
  • measures taken to launder money;
  • re‑loading (or re‑victimizing) customers;
  • selling of customer lists;
  • targeting vulnerable groups;
  • abusive or threatening behaviour relating to the offence;

Impact of the conduct

  • the volume of commerce affected in Canada, whether directly or indirectly, along with a description of the methodology, data and sources used to make or support that determination;
  • pricing and other effects;
  • whether customers or potential customers are aware of the conduct or have complained about it;
  • any product substitutes and their price levels (including transportation costs);
  • barriers to entry into the market;
  • costs for a customer to switch to an alternate product;

Evidentiary process

  • a general description of: the steps taken in the applicant’s internal investigation including information related to how the applicant became aware of the anti‑competitive conduct and its internal response; as well as the steps taken to investigate the conduct, including the names of all individuals interviewed and a summary of their statements and responses relevant to the offence.
  • a general description of witnesses who the applicant believes could testify about the conduct and the anticipated nature of their evidence;
  • a description of all relevant records available to the applicant at that point in time;
  • identification of any relevant records or witnesses that are unavailable and the reasons for the unavailability, including specifics of any claimed privilege, evidence destruction or attempts to obstruct the Bureau’s investigation;

International issues

  • whether the applicant has made, or will make, an application for immunity or leniency in other jurisdictions and the identity of those jurisdictions; and

Private actions

  • whether the applicant is a defendant in any civil actions in Canada, or elsewhere, respecting the conduct and the general status of any such civil actions.

Required if the section 45 conduct pre‑dates March 12, 2010, and the offence requires proof of undueness:

Prior to March 12, 2010, section 45 of the Act prohibited agreements that prevent or lessen competition unduly or enhance prices unreasonably. A conspiracy under the previous provision must meet the threshold of undueness or unreasonableness before it can be considered a criminal offence. It is the combination of market power and behaviour likely to injure competition that makes a lessening of competition undue.

The determinants of market power include such factors as market shares, the number of competitors and the concentration of competition, barriers to entry, geographical distribution of buyers and sellers, differences in the degree of integration among competitors, product differentiation, countervailing power and cross‑elasticity of demand. When parties engage in particularly injurious behaviour contrary to the former section 45 of the Act, such as price‑fixing, liability may be triggered even when market power is not considerable.

Market information provided by an applicant at the proffer stage enables the Bureau to assess the likely impact of the agreement and whether it has caused an undue lessening of competition. Applicants are required to address the issue, but are not required to demonstrate decisively to the Bureau that an undue lessening of competition has occurred in the case of conduct that pre‑dates March 12, 2010.

top of page

Appendix 3: Template documents

[Public Prosecution Service of Canada]

Letter—Confirmation that individual is covered under corporate interim grant of immunity

Addressee (Counsel)

RE: Interim grant of immunity—Individual covered by corporate IGI

I am writing to clarify the immunity protection being made available to you as well as to outline the conditions and expectations associated with this interim grant of immunity protection.

ABC Corporation [ABC] applied for immunity under the Competition Act [the Act] pursuant to the Immunity Program of the Competition Bureau of Canada [the Bureau].

The anti‑competitive conduct that formed the basis of ABC's application for immunity is described as:

…that ABC….[describe conduct]

Based on the information received to date, the Commissioner of Competition [the Commissioner] recommended to the Director of Public Prosecutions [DPP] that ABC receive an Interim Grant of Immunity [IGI] in order to facilitate the Bureau's investigation of the anti‑competitive conduct and as a step toward the creation of a final Immunity Agreement between the DPP, ABC and the Commissioner.

Based on the Bureau's recommendation and the information provided to date from ABC, the DPP, by way of letter dated space to insert date, granted ABC an IGI that also applies to any current director, officer or employee of ABC as well as any agent, former director, officer or employee covered by the IGI.

ABC is bound by the requirements of the Immunity Program which is attached as Appendix 1 to this letter. In particular, ABC is subject to the following conditions and obligations.

  1. ABC agrees to provide Bureau investigators with full disclosure of all non‑privileged information, evidence or records in ABC's possession, under its control or available to it, wherever located, that, in any manner, relate to the anti‑competitive conduct.
  2. ABC's production of information and records within the disclosure process will be timely and will be completed within a schedule established between the Bureau and ABC, unless an exception to the schedule is warranted.
  3. ABC accepts its obligation to bear the cost of collecting and producing information and records within the disclosure process and is prepared to dedicate appropriate resources to meet the timely production of this information.
  4. ABC will take all lawful measures to secure the cooperation of current directors, officers and employees, as well as any agents or former directors, officers or employees specifically covered by this agreement, and to facilitate the ability of these individuals to appear for interviews and provide testimony in judicial proceedings at ABC's expense. (The individuals covered by this IGI are described in Appendix 2 to this letter.)
  5. ABC will cooperate with Bureau investigators as part of furthering the Bureau's investigation of the anti‑competitive conduct. This cooperation includes providing truthful and accurate information, a willingness to assist investigators locate information that is most pertinent, as well as an obligation to update information and evidence promptly when ABC becomes aware of either new or corrected information, records or witnesses.
  6. Unless made public by the DPP or the Commissioner, or as may be ordered by a Canadian court of competent jurisdiction, ABC shall not disclose the existence of this IGI, nor the substance of the matter under investigation, without the consent of the DPP.

Taking into consideration the recommendation of the Commissioner as well as information and representations made on your behalf, the DPP is prepared to extend an assurance that the protections afforded to ABC pursuant to the IGI will be extended to you in order to facilitate further disclosure and investigation of the anti‑competitive conduct.

Accordingly, this is to advise you that the DPP is granting you an IGI from prosecution under the Actin respect of the anti‑competitive conduct [specify time frame if appropriate] prior to [INSERT DATE].

This IGI is conditional upon you providing information and evidence to the Bureau and the DPP, and discharging all of the obligations described in the lmmunity Program. For greater clarity, conditions associated with your IGI include that you:

  1. provide Bureau investigators with full disclosure of all non-privileged information, evidence or records in your possession, under your control or available to you, wherever located, that, in any manner, relate to the anti‑competitive conduct;
  2. make yourself available for interviews (which may be under oath and taped or video‑taped) in Canada at the expense of [ABC] upon the request of the Commissioner or the DPP at the times and places designated by the Commissioner or DPP;
  3. cooperate with Bureau investigators as part of furthering the Bureau's investigation of the anti‑competitive conduct. This cooperation includes providing truthful and accurate information, a willingness to assist investigators locate information that is most pertinent, as well as an obligation to update information and evidence promptly should you become aware of either new or corrected information or records;
  4. not disclose the existence of this IGI, nor the substance of the matter under investigation, without the consent of the DPP, unless this information is made public by the DPP or the Commissioner, or as may be ordered by a Canadian court of competent jurisdiction; and
  5. when requested by the DPP, testify completely and truthfully under oath or solemn affirmation in proceedings commenced by the DPP in connection with the anti‑competitive conduct being reported and, if applicable, attorn to the jurisdiction of Canada for purposes of service of any court process related to proceedings commenced by the DPP relating to the anti‑competitive conduct being reported.

Providing false or misleading information to the Bureau, failure to cooperate in accordance with your obligations under the IGI or noncompliance with the terms and conditions of the IGI can lead to revocation of this IGI and possible charges under the Act or the Criminal Code.

The DPP confirms that neither the DPP nor the Commissioner will use any information provided by you against you in any criminal proceeding unless there has been a failure to comply with the terms of this letter, obligations under the lmmunity Programor the draft form of final lmmunity Agreement provided to ABC (attached as Appendix 2).

For further clarity, the commitments made in this letter have no application to any offences or other liabilities arising under the Criminal Code or any other federal, provincial, or municipal law.

Without limiting the generality of the foregoing, this agreement does not provide immunity from prosecution for perjury, the giving of contradictory evidence or obstruction of justice, if the circumstances warrant or for conduct other than that disclosed to the Commissioner and the DPP.

If at any time the Bureau or the DPP should determine that [ABC] has not satisfied the requirements of its IGI with the DPP, and therefore is no longer entitled to the protections encompassed by that IGI, your protections will continue, so long as you continue to comply fully with your obligations under this IGI.

Should ABC enter into a final Immunity Agreement, the same protections that apply to you in the IGI will continue to apply to you, without the need for subsequent agreement, as long as you continue to meet the conditions associated with this IGI and the agreement is not revoked for other reasons.

Should you agree with the content of this letter and the conditions that will apply to you if granted an IGI, the DPP is prepared to provide you with an IGI. Please endorse the acknowledgement below and return an endorsed copy of this letter back to me.

Yours very truly,

 

PPSC Counsel Commissioner of Competition

I request the DPP grant me the protections of an IGI based on the IGI that has been granted to ABC.

I admit knowledge of (participation in) the anti‑competitive conduct and am aware of the expectations and obligations associated with an IGI.

space to insert signature
Applicant
space to insert signature
Date

[Public Prosecution Service of Canada]

Model letter—Individual A—Interim grant of immunity

Privileged & Confidential

March 1, 2017

Addressee (Counsel)

RE: Interim grant of immunity—Individual A

I am writing further to INDIVIDUAL A's IND. A application for immunity under the Competition Act [the Act] pursuant to the Immunity Program of the Competition Bureau [the Bureau].

I understand that you are acting as counsel for IND. A with respect to [his/her] application for immunity. It is also my understanding that IND. A applied for and was granted a first‑in marker by the Bureau in relation to anti‑competitive conduct believed to be a violation of the Act. Since that time, IND. A has provided the Bureau with additional information in relation to the anti‑competitive conduct.

Based on the information received to date, the Commissioner of Competition [the Commissioner] has recommended to the Director of Public Prosecutions [DPP] that IND. A receive an Interim Grant of Immunity [IGI] in order to facilitate the Bureau's investigation of the anti‑competitive conduct and as a step toward the creation of a final Immunity Agreement between the DPP, IND. A and the Commissioner.

Based on the information gathered to date, and subject to the further collection of information and analysis, the anti‑competitive conduct is described as:

…that IND. A….[describe conduct]

The basis for the Commissioner's recommendation is that IND. A appears to meet the eligibility requirements of the Immunity Program, including that:

  1. the Bureau is unaware of an offence, and IND. A is the first to disclose all of the elements of the offence; OR
  2. the Bureau is aware of an offence, and IND. A is the first to come forward before the Bureau gathers sufficient evidence to warrant a referral of the matter to the DPP;
  3. IND. A has terminated [his/her] participation in the illegal activity;
  4. IND. A has represented that [he/she] did not coerce others to be party to the illegal activity and is not the sole beneficiary of the illegal activity in Canada; and
  5. IND. A has provided information that demonstrates [he/she] was a party to the anti‑competitive conduct believed to be a contravention of the Act.

Upon review of the Bureau's recommendation, the DPP is prepared to offer IND. A an IGI at this time. A copy of the Bureau's Immunity Program is attached as Appendix 1 to this letter and is adopted as further background to the content of this letter, including the expectations and obligations associated with an IGI. I also highlight some of these points for purposes of clarity.

Should IND. A accept and commit to the IGI, the following conditions will apply to IND. A.

  1. IND. A agrees to provide Bureau investigators with full disclosure of all non‑privileged information, evidence or records in IND. A's possession, under [his/her] control or available to him/her, wherever located, that, in any manner, relate to the anti‑competitive conduct.
  2. IND. A's production of information and records within the disclosure process will be timely and will be completed within a schedule established between the Bureau and IND. A, unless an exception to the schedule is warranted.
  3. IND. A accepts its obligation to bear the cost of collecting and producing information and records within the disclosure process.
  4. IND. A will cooperate with Bureau investigators as part of furthering the Bureau's investigation of the anti‑competitive conduct. This cooperation includes providing truthful and accurate information, a willingness to assist investigators locate information that is most pertinent, as well as an obligation to update information and evidence promptly when IND. A becomes aware of either new or corrected information or records.
  5. Unless made public by the DPP or the Commissioner, or as may be ordered by a Canadian court of competent jurisdiction, IND. A shall not disclose the existence of this IGI, nor the substance of the matter under investigation, without the consent of the DPP.

IND. A understands that providing false or misleading information to the Bureau, failure to cooperate in accordance with its obligations under the IGI and/or noncompliance with the terms and conditions of the IGI can lead to revocation of the IGI and possible charges under the Act or the Criminal Code.

Should IND. A accept and commit to the IGI, neither the Bureau or the DPP will use any of the information disclosed by IND. A against IND. A.

IND. A has been provided with a draft form of a final Immunity Agreement (attached as Appendix 2). This offer of an IGI is also premised on IND. A having the intention to continue with the immunity application process to the point of entering into a final Immunity Agreement, which includes meeting the expectations and obligations outlined in the draft final Immunity Agreement. IND. A accepts that the appended Immunity Agreement is in draft form and that some aspects of or language in the Agreement may change as a result of the collection of further information within the ongoing investigation.

The DPP will seek to execute a final Immunity Agreement with IND. A once IND. A has satisfied all of [his/her] obligations under the IGI, including, if necessary, testifying in court proceedings.

Should IND. A agree with the content of this letter and [his/her] obligations as an immunity applicant, the DPP is prepared to provide IND. A with an IGI as a step toward IND. A entering into a final Immunity Agreement. Please endorse the acknowledgement below and return an endorsed copy of this letter back to me.

Yours very truly,

 

PPSC counsel Commissioner of Competition

I admit knowledge of (participation in) the anti‑competitive conduct.

I am aware of the expectations and obligations associated with an IGI and intend to enter into a final Immunity Agreement.

space to insert signature
IND. A
space to insert signature
Date

[Public Prosecution Service of Canada]

Model letter—Company interim grant of immunity

Privileged & Confidential

March 1, 2017

Addressee (Counsel)

Dear [lnsert]:

RE: Interim grant of immunity—ABC Corporation

I am writing further to ABC Corporation's [ABC] application for immunity under the Competition Act [the Act] pursuant to the Immunity Program of the Competition Bureau [the Bureau].

I understand that you are acting as counsel for ABC with respect to its application for immunity. It is also my understanding that ABC applied for and was granted a first‑in marker by the Bureau in relation to anti‑competitive conduct believed to be a violation of the Act. Since that time, ABC has provided the Bureau with additional information in relation to the anti‑competitive conduct.

Based on the information received to date, the Commissioner of Competition [the Commissioner] has recommended to the Director of Public Prosecutions [DPP] that ABC and its current directors, officers and employees receive an Interim Grant of Immunity [IGI] in order to facilitate the Bureau's investigation of the anti‑competitive conduct and as a step toward the creation of a final Immunity Agreement between the DPP, ABC and the Commissioner.

Based on the information gathered to date, and subject to the further collection of information and analysis, the anti‑competitive conduct is described as:

…that ABC….[describe conduct]

The basis for the Commissioner's recommendation is that ABC appears to meet the eligibility requirements of the Immunity Program, including that:

  1. the Bureau is unaware of an offence, and ABC is the first to disclose all of the elements of the offence; OR
  2. the Bureau is aware of an offence, and ABC is the first to come forward before the Bureau gathers sufficient evidence to warrant a referral of the matter to the DPP;
  3. ABC has terminated its participation in the illegal activity;
  4. ABC has represented that it has not coerced others to be party to the illegal activity; and
  5. ABC has provided information that demonstrates it was a party to the anti‑competitive conduct believed to be a contravention of the Act.

Upon review of the Bureau's recommendation, the DPP is prepared to offer ABC an IGI at this time. A copy of the Immunity Program is attached as Appendix 1 to this letter and is adopted as further background to the content of this letter, including the expectations and obligations associated with an IGI. I also highlight some of these points for purposes of clarity.

Should ABC accept and commit to the IGI, the following conditions will apply to ABC.

  1. ABC agrees to provide Bureau investigators with full disclosure of all non‑privileged information, evidence or records in ABC's possession, under its control or available to it, wherever located, that, in any manner, relate to the anti‑competitive conduct.
  2. ABC's production of information and records within the disclosure process will be timely and will be completed within a schedule established between the Bureau and ABC, unless an exception to the schedule is warranted.
  3. ABC accepts its obligation to bear the cost of collecting and producing information and records within the disclosure process and is prepared to dedicate appropriate resources to meet the timely production of this information.
  4. ABC will take all lawful measures to secure the cooperation of current directors, officers and employees, as well as any agents or former directors, officers or employees specifically covered by this agreement, and to facilitate the ability of these individuals to appear for interviews and provide testimony in judicial proceedings at ABC's expense. (The individuals covered by this IGI are described in Appendix 2 to this letter.) ABC must obtain the consent of the Bureau before seeking the cooperation of an agent or a former director, officer or employee.
  5. ABC will cooperate with Bureau investigators as part of furthering the Bureau's investigation of the anti‑competitive conduct. This cooperation includes providing truthful and accurate information, a willingness to assist investigators locate information, as well as an obligation to update information and evidence promptly when ABC becomes aware of either new or corrected information, records or witnesses.
  6. Unless made public by the DPP or the Commissioner, or as may be ordered by a Canadian court of competent jurisdiction, ABC shall not disclose the existence of this IGI, nor the substance of the matter under investigation, without the consent of the DPP.

ABC understands that providing false or misleading information to the Bureau, failure to cooperate in accordance with its obligations under the IGI and/or noncompliance with the terms and conditions of the IGI can lead to revocation of the IGI and possible charges under the Act or the Criminal Code.

Should ABC accept and commit to the IGI, the Bureau and the DPP will not use any of the information disclosed by ABC against ABC or the individuals who are listed in Appendix 2 and have not been found to be illegible for immunity.

Additionally, no current director, officer or employee, and no agent or former director, officer or employee covered by this IGI, will be carved out of the IGI for any reason other than a failure to admit its knowledge of or participation in the anti‑competitive conduct or a failure to cooperate in a complete, timely and ongoing manner.

ABC has been provided with a draft form of a final Immunity Agreement (attached as Appendix 3). This offer of an IGI is also premised on ABC having the intention to continue with the immunity application process to the point of entering into a final Immunity Agreement, which includes meeting the expectations and obligations outlined in the draft final Immunity Agreement. ABC accepts that the appended Immunity Agreement is in draft form and that some aspects of or language in the Agreement may change as a result of the collection of further information within the ongoing investigation.

The rights, protections and obligations created by the IGI will be extinguished and have no force or effect upon the execution of the Immunity Agreement. The DPP will seek to execute the Immunity Agreement with ABC once ABC has satisfied all of its obligations under the IGI, including, if necessary, testifying in court proceedings.

ABC will be advised of any individual listed in Appendix 2 who subsequently is determined to be ineligible for immunity at the time that the determination is made. An Individual may be determined ineligible and become a person of interest to the investigation whether or not he or she provided evidence to the Bureau.  

Should ABC agree with the content of this letter and its obligations as an immunity applicant, the DPP is prepared to provide ABC with an IGI as a step toward ABC entering into a final Immunity Agreement. Please endorse the acknowledgement below and return an endorsed copy of this letter back to me.

Yours very truly,

 

PPSC counsel Commissioner of Competition

ABC is aware of the expectations and obligations associated with an IGI and intends to enter into a final Immunity Agreement.

space to insert signature
Signature of authorized representative of ABC
space to insert signature
Date

top of page

Appendix 4: Claims of privilege

Review of claims of privilege

  1. The operation and design of the Immunity Program respects sustainable claims of privilege made on information that otherwise would need to be provided to the Bureau.
  2. In addition to disclosing to the Bureau all relevant non‑privileged information, evidence and records an applicant will be required to provide a description of all relevant records over which the applicant claims privilege, as well as the identification of the applicable privilege claimed. No waiver of the privilege claimed will occur in the review process described below, however, the description of the record must enable the Bureau and the DPP to understand the nature of the information over which privilege is claimed and the context and basis upon which the privilege claim is founded.
  3. The Bureau, after receiving instructions from the DPP, will identify for the applicant any records for which it is not clear that the privilege claim is sufficiently well‑founded. Should, following discussion, there continue to be disagreement regarding the privilege claim over any such record, the applicant will be required to provide a copy of the record to an Independent Counsel (IC) for review.
  4. The IC will review each record for which there is disagreement regarding the claim of privilege and will provide a determination regarding the privilege claim.
  5. The Bureau and the DPP will not be provided access to these records within the review process. However, the DPP reserves the right to make its own observations and representations to the IC, which may include discussions on the relevant law of privilege, and the circumstances of the case. A copy of the DPP’s observations and representations will be given to the applicant by the IC. The IC will also provide the DPP, with a copy of the applicant’s observations and representations, provided that the relevant information covered by the privilege claim is not disclosed to the DPP.
  6. The costs associated with the review by the IC will be borne by the Bureau but the Bureau will not be responsible for any cost incurred by the Applicant associated with the IC review.
  7. The Bureau and DPP will respect the determination of the IC with respect to claims of privilege that the IC considers to be reasonably supported in law and fact.
  8. Where the IC makes the determination that the applicant’s claim of privilege is not reasonably supported in law and fact, the applicant is then obliged to disclose the information.
  9. Failure to disclose this information may constitute a basis for removal of an applicant from the program.

top of page

Date modified: