1. The Interplay Between Public and Private Anti-Cartel Enforcement in Canada
ICN Cartel Working Group SG 1 Call Series
Linda Plumpton
December 15, 2015

2. Overview
Complementary enforcement tools available in the public and private sphere
Public enforcement
Through Canadian Competition Bureau, an independent law enforcement agency
Objectives: prevention and deterrence of anti-competitive conduct
Private Enforcement
Typically through class actions brought on behalf of class of purchasers who have suffered loss or damage
Objectives: restitution and behavior modification

3. Criminal Enforcement Regime
Cartel offences set out in Competition Act, Part VI
Section 45 – Conspiracy
per se since 2010
Imprisonment up to 14 years or fine up to $25 million or both
Section 46 –Foreign-Directed Conspiracies
No cap on fine
Section 47 – Bid-Rigging
Imprisonment up to 14 years or fine in discretion of court
Both corporations and individuals may be charged
No limitation period

4. Investigative Tools Available to Bureau
Search warrants
Wiretaps
Production Orders

5. Immunity and Leniency Programs
Immunity Program
Available to corporations and individuals
Process:
Initial contact - marker requests (may be anonymous)
Proffer
Immunity agreement
Full disclosure requirement
Waiver requirement

6. Immunity and Leniency Programs…cont’d
Leniency program for subsequent applicants
“first-in” leniency eligible for:
50% reduction
immunity for officer, directors and employees
second-in applicant eligible for 30% reduction
similar process to immunity program
must agree to plead guilty – negotiation with Public Prosecution Service of Canada
immunity plus available

7. Confidentiality Issues
Proffer process is hypothetical and paper-free
Both immunity and leniency programs require full disclosure by applicant of all non-privileged information, evidence and records in its possession
Act protects against disclosure of information to third parties
Court recently confirmed that prosecutors are likely required to disclose information gathered through immunity and leniency programs to accused

8. Private Enforcement: Class Actions
Class actions typically follow criminal guilty pleas
Private right of action in section 36 of the Act
May claim “an amount equal to the loss or damage proved to have been suffered” plus the full cost of any investigation and of the proceedings
Two year limitation period from date of offence or last criminal proceedings
No punitive damages but plaintiffs typically assert common law claims that permit punitive damage claims

9. Access by Civil Plaintiffs to Fruits of Criminal Investigation
Developing area of the law
Supreme Court of Canada (2015):
civil plaintiffs can access wiretap evidence gathered as part of criminal investigation
Not clear whether civil plaintiffs can access non-wiretap evidence
Potential threat to immunity and leniency programs
Other threat – debarment from public procurement contracts