“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.”
(Canadian Competition Bureau,
Whistleblowing Initiative)
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OVERVIEW OF COMPETITION ACT
WHISTLEBLOWER PROTECTIONS
In addition to the Competition Bureau’s Immunity and Leniency Programs, the federal Competition Act also includes standalone “whistleblower” provisions with protections for people who report potential competition law violations to the Competition Bureau under sections 66.1 and 66.2 of the 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 can notify the Commissioner of Competition and request that his/her identity be kept confidential.
The whistleblower sections also make it a criminal offence for employers to dismiss, suspend, demote, discipline harass or otherwise disadvantage an employee or deny them employment benefits because they, acting in good faith and based on a reasonable belief, did any of the following:
1. Reported a Competition Act offence committed by the employer or other person.
2. Refused to do anything that is an offence under the Competition Act.
3. Took steps to avoid an offence under the Competition Act.
COMPETITION BUREAU
WHISTLEBLOWING INITIATIVE
In addition to these whistleblower protections under the Competition Act, in 2013 the Competition Bureau also launched a “Whistleblowing Initiative” to highlight the whistleblower protections under the Act and encourage the public and business community to report suspected violations of the Competition Act to the Bureau.
For more information, see Competition Bureau, Whistleblowing Initiative.
When the Bureau announced its Whistleblowing Initiative, the Commissioner of Competition 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 Competition Bureau’s confidentiality policy for whistleblowers is set out in its 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.”
WHISTLEBLOWERS AND CANADIAN COMPETITION LAW
COMPLIANCE PROGRAMS
In addition to the whistleblower sections of the Competition Act and the Competition Bureau’s Whistleblower Initiative, the Bureau has also taken the position that a credible and 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.”
COMPETITION ACT INVESTIGATION
AND ENFORCEMENT RESOURCES
For more information about Canadian competition law investigations and enforcement, see: Advisory Opinions, Competition Act Complaints, Competition Act Litigation, Competition Law Enforcement, Competition Bureau Immunity and Leniency Programs and Market Studies/Inquiries.
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SERVICES AND CONTACT
We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we 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 and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
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