Recently, the Competition Bureau launched updates to its Immunity and Leniency Programs that could be relevant to all companies doing business in Canada. These programs are designed to encourage those implicated in offences under the Competition Act to come forward and cooperate with the Bureau.
The Immunity Program provides immunity from prosecution to only the first party that comes forward to cooperate with a Bureau investigation and subsequent criminal proceedings. With the recent updates to this program, applicants will now receive interim immunity from prosecution while the Bureau is gathering information from the applicant to determine eligibility for immunity. Previously, no interim immunity was granted.
Another significant change to the Immunity Program is the removal of automatic immunity for all directors, officers, and employees of a company that is granted immunity. Moving forward, the individuals will be required to admit their knowledge or participation of any offences under the Act and cooperate with the Bureau’s investigation in order to be eligible.
The Leniency Program applies to companies that are not the first to come forward about an offence under the Competition Act and, therefore, are not eligible for the Immunity Program. A leniency applicant can receive a reduction in fines but only upon pleading guilty to a criminal offence.
Under the latest updates, every leniency applicant is now eligible for a reduction in its fine up to 50 per cent. The exact reduction will depend on the value that the Bureau places on the applicant's cooperation. Previously, a 50% reduction was only available to first-in applicants, 30% for second-in and varying amounts for any that followed.
The presence of a corporate compliance program will also be taken into consideration when determining fine amounts.
As with the changes to the Immunity Program, leniency will not automically extend to all directors, officers and employees of a company eligible for leniency.