The Competition Bureau has released its updated Information Bulletin on the Communication of Confidential Information under the Competition Act. The bulletin clarifies and revises elements of the Information Bulletin on Confidential Information under the Competition Act, which was released six years ago. These changes reflect several trends in Canadian competition law, such as:
- the public disclosure of mergers;
- increased cooperation between foreign competition authorities; and
- preserving and strengthening the bureau's immunity and leniency programmes as effective tools for enforcement.
Under the old policy, the bureau's general practice was to minimise the extent to which the confidential information it obtained while administering or enforcing the Competition Act was communicated to persons outside the bureau. The old policy stated that the bureau would be vigilant in preventing the communication of confidential information unless specifically permitted under the act and, even when permitted, it would first consider whether the disclosure was advisable or necessary.
The old policy also set out four limited circumstances in which the bureau would utilise its discretion to communicate confidential information:
- communication to a Canadian law enforcement agency;
- communication for the purposes of administering or enforcing the act;
- communication where the information had otherwise been made public; or
- communication authorised by the person who provided the information.
In administering and enforcing the act, the old policy stated that the bureau could share confidential information with:
- market participants (eg, customers, suppliers and competitors) in order to elicit certain information from them that may be used as evidence by the bureau (although, in such cases, the bureau would take steps to refrain from or minimise the communication of confidential information);
- industry, economic or legal experts retained by the bureau to provide an opinion or analysis;
- international enforcement agencies, when obtaining enforcement assistance or coordinating enforcement actions;
- the courts, when making an application for the use of wiretaps or production orders; and
- the courts and the Competition Tribunal, when initiating enforcement proceedings under the act.
The old policy stated that if the bureau was required to use confidential information before the courts or the Competition Tribunal, it would put measures in place to protect the confidentiality of the information, provided that such measures did not hinder the enforcement or administration of the act.
When disclosing confidential information to foreign competition authorities to assist their law enforcement agencies, the old policy noted that the bureau would, in all such cases, seek to maintain the confidentiality of the information either through formal international instruments or assurances from the foreign authority.
The old policy also referred to the bureau's immunity programme. In particular, the bureau would not disclose the identity of an applicant for immunity under this programme unless the disclosure was:
- required by law;
- necessary to obtain or maintain judicial authorisation for the exercise of investigative powers;
- for the purpose of securing the assistance of a Canadian law enforcement agency in the exercise of investigative powers;
- agreed to by the applicant;
- already made by the applicant; or
- necessary to prevent the commission of a serious criminal offence.
In addition, the old policy stated that the bureau would not disclose the identity of an immunity applicant or any information obtained from the applicant to any foreign law enforcement agency unless it received the applicant's consent.
Finally, the old policy set forth the bureau's policy of refusing to disclose voluntarily confidential information in its possession to third parties contemplating or initiating a legal action under Section 36 of the act to recover damages incurred as a result of conduct contrary to the criminal provisions of the act. The bureau would oppose subpoenas for the production of confidential information if compliance with them would potentially interfere with an ongoing examination or inquiry, or would otherwise adversely affect the act's administration or enforcement.
The new policy differs from the old policy in several ways.
Public disclosure of mergers
The new policy refers to the bureau's Merger Register, which was introduced in 2012. Specifically, the new policy states that the bureau will, through this register, disclose the identity of the parties to a merger it has reviewed under Part IV of the act once the review is complete.
In Section 4.1.2 the bureau added bid-rigging and criminal conspiracies as crimes about which it will communicate confidential information to Canadian law enforcement agencies in an effort to combat criminal anti-competitive behaviour more effectively. The old policy explicitly referred to only mass marketing fraud and deceptive marketing practices as crimes about which it would share confidential information with Canadian law enforcement agencies.
Immunity and leniency programmes
The new policy adds reference to the bureau's leniency programme. The bureau's 2010 Bulletin on the Leniency Programme provides that the bureau will recommend lenient treatment in sentencing for parties who have engaged in criminal anti-competitive conduct prohibited by the act but who approach the bureau, admit their illegal activity and offer to cooperate with the bureau's investigation.
The old policy referred only to the bureau's immunity programme, which applies only to the first party engaged in criminal anti-competitive conduct who contacts the bureau to admit his or her guilt and to cooperate with the bureau's investigation. In contrast, the leniency programme applies to subsequent parties who approach the bureau.
As a result, in the bulletin the bureau elaborated how it will treat confidential information. The new policy also elaborates on the bureau's practice of disclosing the identity of a party seeking leniency under the leniency programme (or information provided by such party) to foreign law enforcement agencies. In particular, the new policy states that the bureau will not disclose such information to a foreign enforcement agency unless it receives the consent of the party seeking leniency or unless required by law. In regard to the latter, the new policy does not elaborate on when it would be required by law to disclose such information.
In the new policy, the bureau reaffirmed its stance on third parties contemplating or initiating legal action under Section 36 of the act.
Other noteworthy developments are as follows.
In regard to the whistleblowing provisions of the act (Section 66), the old policy stated that the bureau would make every effort to ensure that the identity of the whistleblower is kept confidential. The new policy provides further guidance on the whistleblowing provisions by elaborating when the bureau may communicate a whistleblower's identify or any information that could reveal his or her identity. The new policy states that the bureau may communicate such information in the four limited circumstances applicable under the old policy.
Intervening before the Competition Tribunal
the new policy adds a reference to the price maintenance provisions of the act (Section 76) as an avenue for private parties to apply for leave to make an application to the Competition Tribunal for a remedial order. In such applications, the commissioner has the ability to intervene and if he does, the new policy states that the bureau's policy regarding communicating confidential information will be the same as with other applications before the tribunal or courts; it will disclose such information only for the purposes of administering or enforcing the act.
The new policy does not signal a shift in approach to treating confidential information under the act. Rather, it represents a policy update to reflect developments in competition law (particularly the increased cooperation among antitrust agencies) and changes in bureau practice.
For further information on this topic please contact Bradley Schneider at Norton Rose Fulbright Canada LLP by telephone (+1 416 216 4000), fax (+1 416 216 3930) or email (firstname.lastname@example.org). The Norton Rose Fulbright Canada website can be accessed at www.nortonrosefulbright.com/ca.
Matthew Zedde, articling student, also contributed to this update.