On December 14, 2012, the Competition Bureau announced that it had withdrawn criminal charges related to the breach of a consent agreement in a waste-collection company merger due to the accidental leak of privileged information during the course of the Bureau’s investigation.
The Bureau said in its statement that on September 19, 2012, it “became aware of an unfortunate procedural error, where certain information subject to solicitor-client privilege had been inadvertently shared with investigators.” As previously covered on this blog, on September 11, 2012, the Bureau laid criminal charges against Progressive Waste Solutions Ltd. and its subsidiary BFI Canada Inc. (known together as Progressive). The Bureau alleged that Progressive had violated the terms of a consent agreement it had entered into with the Bureau in 2010. The Bureau concluded at the time that the merger would result in a substantial lessening or prevention of competition in the waste collection market in several Canadian cities.
Upon discovery of the inadvertent disclosure, Progressive’s counsel was immediately alerted. The Bureau concluded that it was no longer appropriate to continue court proceedings due to the leak of privileged information to Bureau investigators. As such, the Bureau withdrew the criminal charges against Progressive.
Breaching a consent agreement is a serious offence pursuant to section 66 of the Competition Act, with fines of up to $25,000 or imprisonment of up to one year. Due to the “unfortunate procedural error,” the Bureau was unable to continue its investigation of Progressive, but companies should take note that the Bureau remains active in monitoring compliance with consent agreements.