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21 CANADIANLAWYERMAG.COM/INHOUSE MARCH 2018 it less attractive to immunity applicants. Some of these changes could impact privilege and access to counsel's notes," he says. Osborne also wonders about the ratio - nale for recording a proffer by a lawyer for a company seeking immunity. "I am not sure I am comfortable with any recording. It will be produceable as part of the Crown brief," he says. One other proposal, which would permit the Bureau to ask for the informa - tion for a proffer to be produced in less than the normal 30 days after a marker is granted, could be a problem, he says. This time period, which includes identifying the wrongdoing and conducting an internal in - vestigation, is already a challenge for any plicant, put the case together," he says. That way, the investigation is likely to be more independent and of greater value to the prosecution side, he suggests. Applicants for the immunity program are not seeking an easy path to avoid a Competition Act prosecution, without the potential for fines, restrictions on bidding for government contracts and any other sanctions that might entail from a criminal conviction, Kwinter stresses. "The whole point of immunity is that the Bureau is going to use it for a prosecution down the road. This is the single most effec - tive tool to investigate price fixing. Infor- mation is going to be disclosed. The whole nature of the immunity process is assisting the Bureau," he says. The driving force, though, behind any changes that are ultimately put into place should be increased transparency on exactly what is required, says Kwinter. "They should be encouraging companies to come forward." IH company. "It is expensive and not an easy process," says Osborne. In situations where there are allegations of multi-jurisdictional price fixing and Canada is not the most significant location, even the existing 30-day window may be too short for companies to decide to seek im - munity in this country, Kwinter points out. A more common trend in recent years that does not have to do with the formal framework of the program is that there ap- pears to be an expectation by the Bureau for the company seeking immunity to present a "fuller case" to the regulator, Osborne says. "I am not sure that is a good thing. It is bet- ter to have the Bureau, rather than the ap- The whole point of immunity is that the Bureau is going to use it for a prosecution down the road. This is the single most effective tool to investigate price fixing. Information is going to be disclosed. The whole nature of the immunity process is assisting the Bureau. ROBERT KWINTER, Blake Cassels & Graydon LLP We defend businesses facing lawsuits, investigations, prosecutions, class actions and other complex litigation. We advise businesses on proposed business practices, compliance with the Competition Act and other statutory and regulatory provisions. We litigate all manner of commercial disputes, class actions and private actions. agmlawyers.com | thelitigator.ca ƂvyiVÀiiiVÕÀÌÀÞLLP | ÎÈx >Þ-ÌÀiiÌ]-ÕÌiÓää]/ÀÌ] >>`>xÓ6£ | {£È°ÎÈä°Ónää Untitled-3 1 2018-02-09 12:40 PM

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