Canadian Lawyer InHouse

MARCH 2018 20 INHOUSE before they rat you out," says Osborne, who specializes in competition law. The proposed changes to the first stage of the immunity program, after a company has contacted the Bureau, provided some infor - mation and been granted a marker, are the ones that are of the most concern. The main issue is whether the new pro- cess could result in legal advice to a client or other internal privileged information having to be turned over to the Bureau and ultimately to other parties, either in a crimi - nal prosecution or class action litigation. Any amendments that turn the initial stage of the program into a "papered pro- cess" including recordings of counsel or witnesses could increase the civil exposure to applicants compared to parties that don't self report or seek leniency, notes Royal. "There is the very real potential for these disclosures to turn around and bite them in other jurisdictions and the risks may just be too high compared to the benefits," she adds. Kwinter suggests there need to be more details on exactly how this process would work. "My view is that the Bureau should make the requirements clearer than in the past. Immunity applicants are required to produce all the facts. I think there is a distinction between facts and legal advice," says Kwinter, who acted for one of the suc - cessful defendants in the chocolate price- fixing prosecution. One of the stumbling blocks in that case for the federal Crown was a February 2015 ruling by then-Superior Court Justice Ian Nordheimer (he is now on the Ontario Court of Appeal) over disclosure to the de - fendants. Some information that Hershey had turned over at the proffer stage to be eligible for the leniency program included details from its internal investigation. Norhdeimer ruled that there was no priv - ilege in this information once it was turned over and the defendants were entitled to dis- closure of it under the rules set out by the Supreme Court of Canada in its ruling in R. v. Stinchombe. "Generally speaking, a party who reveals solicitor and client information to a third party will be found to have waived the privilege that would otherwise attach to the information," wrote Nordheimer. That ruling was not appealed and the scope of its application continues to be debated among lawyers in the competi - tion law field. However, they agree it has highlighted a need for caution in terms of what is being requested by the Bureau at the proffer stage. "The more detail they expect, the less likely companies are going to see the benefit," says Kwinter. The increased possibility that legal advice and information from an internal investigation that goes beyond what is needed to satisfy the immunity requirement is the red flag raised by these proposals, says Houston. "It may make Immunity program proposed changes • Automatic coverage under a corporate immunity agreement for all directors, officers and employees will no longer be provided. Instead, individuals that require immunity will need to demonstrate their knowledge of the conduct in question and their willingness to co-operate with the Bureau's investigation. • Documentary and testimonial evidence will be provided under an Interim Grant of Immunity. Final immunity will be provided when the applicant's co-operation and assistance is no longer required. • Witness interviews may be conducted under oath and may be video or audio recorded. Proffers may also be audio recorded. • The Bureau may require the applicant to make its proffer early within the 30-calendar-day period and to provide documentary evidence and access to witnesses, which may be taken under oath and may be video and/or audio recorded before the proffer is completed. IH Source: Competition Bureau There is the very real potential for these disclosures to turn around and bite them in other jurisdictions and the risks may just be too high compared to the benefits. MICHAEL OSBORNE, Cassels Brock & Blackwell LLP

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