Earlier this year, and back when he was Canada’s Interim Commissioner of Competition, John Pecman (now Commissioner) announced the launch of the Criminal Cartel Whistleblowing Initiative (Initiative) aimed at increasing the reporting of anti-competitive behaviour. Whilst the Canadian Competition Act does provide protection to cartel whistleblowers, the Initiative adds an extra layer and encourages “members of the public to provide information to the Bureau regarding possible violations of the criminal cartel provisions”.
Currently, the Canadian Competition Act:
- allows for the Bureau to protect the identities of whistleblowers who request confidentiality in return for providing information;
- and prohibits employers from taking any adverse action against employees who, acting in good faith and based on reasonable belief, disclose or state an intention to disclose to the Bureau that a cartel offence either has been or is going to be committed.
- provides additional assurance that, if requested, a whistleblower’s identity will be kept confidential by the Bureau;
- emphasises that a whistleblower has discretion about the extent of personal information he/she is willing to provide;
- emphasises that the whistleblower protections apply to any member of the public;
- explains that a whistleblower may be asked to testify in court but cannot be required to do so;
- and outlines the rights a whistleblower has against any retaliation from an employer.
The Initiative also aims to create greater public awareness that the protections exist in order to encourage more reporting to the Bureau. This is important because a common view appears to be that the Bureau’s whistleblowing program has not been as successful as its Immunity and Leniency programs due to a general lack of public awareness. To directly address this issue, the Initiative has introduced a toll-free telephone number for the particular purpose of receiving information about possible violations of the criminal cartel provisions.
Commentators suspect that if the Initiative is successful, it is likely to create more challenges for companies. If employees are encouraged to go directly to the Bureau, companies may have to manage both a cartel investigation as well as ensuring they do not breach the whistleblower protections.