Canadian COMPETITION LAW

Communicating with parties in criminal investigations: The Bureau has taken a stricter position in that it will usually proceed without notifying the target of a criminal investigation, except in specific circumstances (for example, during Alternative Case Resolution discussions or when the target is aware of an investigation that has been closed). This is in contrast to the Bureau’s previous position that it would, where reasonably possible, contact parties to inform them that they were the subject of an inquiry and provide periodic updates on the status of the inquiry, provided that communication would not adversely affect the investigation. The Bureau also includes reference to its Whistleblowing Initiative in its new Bulletin, which it launched in 2013.

Communicating with parties in civil matters and mergers: The Bureau has provided additional guidance about communicating with merging parties, including in relation to information requests and timing for updates about the status of a merger review. The Bureau has also revised its approach to take a more case-by-case approach to determining when it will communicate with parties during an ongoing civil matter (as compared to every six months previously). In addition, whereas the Bureau’s previous position was that it would generally invite parties to participate in alternative resolution discussions, its new position under the Transparency Bulletin is that it “will only engage in [resolution] discussions if there is a demonstrated commitment to resolving the matter.”

Communicating with complainants: When the Bureau ends an investigation, it may inform complainants that have substantially engaged with the Bureau and cooperated in an investigation (compared to complainants generally previously).

Communicating with industry participants: The Bureau provides less guidance about when it may contact industry participants in an investigation and the confidentiality protections for information provided by them. However, the Bureau’s core position has not changed in that industry participants should not expect to receive information about an investigation except when necessary to understand the context of the investigation to provide relevant information to the Bureau.

Statements about active investigations: The Bureau may publish statements about active cases on a case-by-case basis when it will help an investigation and enforce the Competition Act (compared to generally making the public and complainants aware of proceedings through announcements or position statements previously). In this regard, the Bureau’s position on disclosing active investigations is more case specific than before.

Statements about completed investigations: The Bureau provides expanded and more detailed guidance about communications when an investigation is complete (for example, when court proceedings commence or the terms of an Alternative Case Resolution are completed), including the types of communication and factors that it will consider. The Bureau has also issued new guidance in relation to disclosing investigations in relation to federal packaging and labelling legislation and mergers in particular.

For more information about Bureau enforcement, see Practice Notes, Competition Bureau Investigations and Criminal Competition Law Enforcement.