Canadian COMPETITION LAW

November 13, 2013

Given the recently increased focus on criminal competition law matters (e.g., cartels) and whistleblowing, the latter in the competition law world and corporate crime area generally, I thought I would launch a new whistleblowing page on the blog.  A kind of rolling compilation of Canadian competition law whistleblowing information.  For my first go at a few key recent Canadian competition law whistleblowing sources see: whistleblowers or below.  As usual for my competition law overviews, I’ve endeavoured to include a few quotes that I’ve come across and thought were really rather good, including Ralph Nadar’s inaugural definition of “whistleblower” from the 1970s.

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“There is no law, no system, no set of regulations which can more effectively hold governments to account than the conscience of man.  Opposition parties, the public and the press rely on individuals, not systems, to tell us what those who rule over us would like us not to know.  We call them ‘whistleblowers’ because, like referees, they seek to keep the players in our political system in check.”

Editorial, The Independent of London, on arrest of Tory M.P. Damian Green
for suspicion of leaking documents (November 29, 2008)

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“[Whistleblowing is] an act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity”

(Ralph Nadar, who coined the phrase)

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“A whistleblower is a person who voluntarily provides information to the Bureau about a possible violation of the Act that has occurred, is occurring or is about to occur.  Section 66.1 of the [Competition Act] includes specific provisions protecting the identity of a whistleblower.”

(Competition Bureau, Whistleblowing Initiative)

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OVERVIEW OF COMPETITION ACT
WHISTLEBLOWER PROTECTIONS

In addition to the Competition Bureau’s (the “Bureau”) Immunity and Leniency Programs (see tabs to the left for more information on those Programs), the Canadian federal Competition Act also includes “whistleblower” protections for those who report potential competition law violations to the Bureau (sections 66.1 and 66.2 of the Competition Act).

In general, the whistleblower provisions of the Competition Act provide that any person with “reasonable grounds” to believe that a person has committed (or intends to commit) an offence under the Competition Act may notify the Commissioner of Competition and request that his/her identity be kept confidential.

The whistleblower sections also prohibit employers (i.e., make it a criminal offence) from dismissing, suspending, demoting, disciplining, harassing or otherwise disadvantaging an employee (or denying an employee employment benefits) based on the fact that the employee, acting in good faith and on the basis of reasonable belief: (i) reported an offence committed by the employer or other person, (ii) refused to do anything that is an offence under the Competition Act, or (iii) took steps to avoid an offence under the Competition Act.

Competition Bureau
Whistleblowing Initiative

In addition to these whistleblower protections under the Competition Act, the Bureau also recently launched a “Whistleblowing Initiative” in 2013 to highlight these sections and to encourage the general public and the business community to report suspected violations of the Competition Act to the Bureau (see: Competition Bureau, Whistleblowing Initiative).

In announcing the new Bureau Initiative, the new Commissioner of Competition John Pecman said:

“This initiative is a way for members of the public to provide information to the Bureau regarding possible violations of the criminal cartel provisions of the Act.  Anyone who has reasonable grounds to believe that a person has committed, or intends to commit, a criminal offence under the Act, may notify the Bureau of the particulars of the matter and may request that his or her identity be kept confidential.  The Bureau will keep confidential the identity of a person who has made such disclosure and to whom an assurance of confidentiality has been provided.  The Bureau will also ensure that any information provided by a whistleblower that is communicated to other law enforcement agencies does not reveal the identity of the whistleblower.  We believe that this initiative will support increased reporting of anti-competitive behaviour, while ensuring the protection of individuals who come forward with such information.”

Protecting Whistleblower Confidentiality

The Bureau’s confidentiality policy for whistleblowers is set out in its recently updated Information Bulletin on the Communication of Confidential Information Under the Competition Act:

“Under section 66.1 of the Act (commonly referred to as the whistleblowing provision), anyone who has reasonable grounds to believe that a person has committed or intends to commit a criminal offence under the Act may notify the Bureau of the particulars of the matter and may request that his or her identity be kept confidential. The Bureau will keep confidential the identity of a person who has made such disclosure and to whom an assurance of confidentiality has been provided.  When a person has accepted such an assurance, his or her identity and any information that could reveal his or her identity is confidential and cannot be communicated under section 29 of the Act without the consent of that person.

Information provided by a whistleblower, other than his or her identity and any information that could reveal his or her identity, may be communicated under section 29 of the Act in the four limited circumstances set out in section 3.2 of this Bulletin.  Where information provided by a whistleblower is communicated in such circumstances, the Bureau will make every effort to ensure that the communicated information does not disclose the identity of the whistleblower or any other information that could reveal his or her identity.”

Whistleblowing Information in
Compliance Programs

In addition to the whistleblower sections of the Competition Act and Bureau’s recently announced “Whistleblower Initiative”, the Bureau also takes the position in its Corporate Compliance Programs Bulletin (which sets out the Bureau’s policies relating to effective and credible competition compliance programs) that an effective competition law compliance program should include information about the Competition Act’s whistleblowing protections:

“While an internal reporting mechanism is important, there may be situations where the use of an external reporting mechanism would be more appropriate.  A program should also educate employees who are in a position to engage in, or be exposed to, conduct in potential breach of the Acts on the Bureau’s Immunity Program and the whistleblowing provisions (sections 66.1 and 66.2 of the Competition Act.”

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SERVICES AND CONTACT

I am a Toronto competition and advertising lawyer offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law.  I also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.

My experience includes advising clients in Toronto, Canada and the US on the application of Canadian competition and regulatory laws and I have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal, pricing and distribution, Investment Canada Act and merger matters. For more information about my competition and advertising law services see: competition law services.

To contact me about a potential legal matter, see: contact

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