November 14, 2018
Practical Law Canada Competition has published a new Legal Update, which discusses a recent Ontario Superior Court case that considered informer privilege in the context of the Competition Bureau’s Immunity and Leniency Programs. Below is an excerpt with a link to the full Update.
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A recent decision by the Ontario Superior Court of Justice in Re Application by Immunity Applicant Witnesses at First Stage Hearing, 2018 CarswellOnt 17844 (Ont. S.C.J.) has clarified the application of informer privilege to immunity applicant witnesses under the Competition Bureau’s (Bureau’s) Immunity Program.
This matter arose in the context of the Bureau’s ongoing investigation into an alleged conspiracy to fix bread prices in Canada, contrary to section 45 of the Competition Act, R.S.C., 1985, c. C-34. Loblaw Companies Limited, including affiliated entities, sought and was granted immunity under the Bureau’s Immunity Program, both on Loblaw’s own behalf and on behalf of its current officers, directors and employees.
Note that the Immunity Program was recently revised subsequent to this decision. In particular, the immunity agreement (as referred to in this update) now takes the form of a conditional immunity agreement called a grant of interim immunity. However, these revisions do not alter the basic relevance of the decision.
For a discussion of the Immunity Program, see Practice Note, Competition Bureau Immunity and Leniency Programs.
Two companies subject to the Bureau’s ongoing investigation (Sobeys Incorporated and Metro Incorporated) sought orders requiring the Bureau to disclose the identities of two immunity applicant witnesses who were included under Loblaw’s immunity agreement. The two witnesses brought an application for a declaration that they were confidential informers entitled to common law informer privilege to protect the disclosure of their identities.
The Commissioner of Competition (head of the Bureau) opposed the application, arguing that applying blanket informer privilege would compromise the operation of the Immunity Program, which is the Bureau’s most effective tool for detecting cartels. The Commissioner also asserted that the Immunity Program already contains adequate confidentiality safeguards, as well as adequate incentives to cooperate.
Thus, the issue before the Court was whether and, if so, to what extent, informer privilege applied to confidential communications between the immunity applicant witnesses and the Bureau under the Immunity Program.
For the full update, see here.
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