Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The power to grant immunity or leniency from criminal prosecution under the Competition Act lies solely with the Director of Public Prosecutions (DPP) of Canada. 
The DPP's policy on immunity is articulated in the Public Prosecution Service Deskbook, Part III, Chapter 3: Immunity Agreements. Companies address their demands to the Competition Bureau which makes its proposals to the DPP (see Immunit …

Leniency

The Competition Tribunal has broad discretion to order any person to take steps deemed necessary to prevent the commission, continuation or repetition of an offense. Prohibition orders, valid for ten years unless otherwise specified, are authorized upon application to the Attorney General of Canada or the attorney general of the province (Section 34(1) of the Competition Act). The vast majority of the Competition Act's civil provisions empower the Tribunal to prohibit the continuation of certain practices and to order further actions to overcome the effect of the anticompetitive action. Thus, under Section 79(1) of the Competition Act, where an undertaking is abusing a position of dominance, the Tribunal may make an order prohibiting the conduct in question. Further, under Section 79(2), where the Tribunal considers that an order, as provided for under Section 79(1) would not have sufficient effect, it can instead choose to make an order providing for divestiture of market share. The Tribunal may order that any agreement which prevents or lessens competition substantially shall cease immediately (Section 90.1 of the Competition Act).

Cease and desist orders

Any infringement of Section 45(2) of the Competition Act is punishable by a maximum fine of C$ 25 million (US$ 18,619,200) and imprisonment of up to 14 years. Bid-rigging is punishable by a discretionary fine or imprisonment of up to 14 years. Furthermore, individuals will now have to wait 10 years to apply for a pardon or to have their criminal records expunged instead of five years as was previously the case. Granting allowances that are not offered on proportionate terms, failure to obey an order of the court, and violating an interim injunction are each punishable by fine or imprisonment of up to two years. 

In the event of abuse of a dominant position, since the 2023 amendments, the new maximum penalty is the greater of:

- $25 million (approximately US$ 20 million) for the first violation and up to $35 million (approximately US$ 25 million) for any subsequent violation; or

- three times the value of the benefit derived from the anticompetitive practice, or, if that amount cannot be reasonably determined, 3% of the company’s annual worldwide gross revenues.


The Competition Act also provides for criminal sanctions for other infringements. Any person impeding or preventing an investigation may be fined up to C$ 100,000 (US$ 74,440) and/or imprisoned for up to two years on summary conviction, or a discretionary fine and/or imprisonment for up to ten years for conviction on indictment. Destroying evidence may be punished by a fine up to C$ 100,000 (US$ 74,440) and/or imprisonment of up to two years on summary conviction, or a fine at the discretion of the court or imprisonment of up to ten years for conviction on indictment (Sections 63-66 of the Competition Act).

Any person convicted on indictment of contravening an order of the Tribunal regarding abuse of dominance may be fined at the discretion of the court and imprisoned for up to five years, or, on summary conviction, fined up to C$ 25,000 (US$ 20,083) or imprisoned for up to one year (Section, 66 of the Competition Act).

Under the Safe Streets and Communities Act passed in March 2012 individuals found guilty of infringements of the criminal provisions of the Competition Act (notably price fixing, bid-rigging and misleading advertising) will face mandatory prison sentences, as community service or house arrest will no longer be available for such offenses. Furthermore, individuals will now have to wait 10 years to apply for a pardon or to have their criminal records expunged instead of five years as was previously the case. 

Criminal sanctions

The power to grant immunity or leniency from criminal prosecution under the Competition Act lies solely with the Director of Public Prosecutions (DPP) of Canada. 

The DPP's policy on immunity is articulated in the Public Prosecution Service Deskbook, Part III, Chapter 3: Immunity Agreements. Companies address their demands to the Competition Bureau which makes its proposals to the DPP (see Immunity Program under the Competition Act, March 2019). The Commissioner will recommend that the DPP grant immunity to a party who is the first to disclose an offense of which the Competition Bureau is unaware, or the first to come forward with sufficient evidence to warrant a referral of the matter to the DDP. In order to receive immunity, the undertaking must also: terminate its participation in the illegal activity; not have coerced others to be party to the illegal activity; cooperate completely with the investigation. An Interim Grant of Immunity is first offered to the applicant, full immunity being only awarded where the applicant fully cooperates with the Bureau throughout the whole process. If the first party fails to meet these requirements, a subsequent party that does meet the requirements may be recommended for immunity.

In addition, under the Leniency Program (see Competition Bureau's Bulletin on the Leniency Program, March 2019) the Competition Bureau may recommend to the Director of Public Prosecutions (DPP) that cooperating persons who have breached the cartel provisions under the Competition Act, but who are not eligible for a grant of immunity, nevertheless be considered for lenient treatment in sentencing. The Competition Bureau's leniency recommendations are however not binding on the DPP. The Competition Bureau will make a recommendation for leniency in sentencing to the DPP when the individual or business organization has terminated its participation in the cartel, agrees to cooperate fully and in a timely manner, at its own expense, with the Bureau’s investigation and any subsequent prosecution of the other cartel participants by the DPP and agrees to plead guilty. Applicants are required to provide full, frank, timely and truthful cooperation. Every leniency applicant is eligible for a reduction of up to 50% of the fine that would otherwise have been recommended, depending on the value of its cooperation with the Bureau. The Leniency program also provides for an Immunity Plus scheme, under which a leniency applicant who discloses evidence of conduct constituting a further criminal offense under the Act unknown to the Competition Bureau may be eligible for immunity from prosecution with respect to the newly-disclosed offense and further lenient treatment in respect of the offense for which leniency is being sought.

Finally, the Competition Bureau has set up a whistleblowing initiative which encourages members of the public to voluntarily provide information to the Bureau about a possible violation of the criminal cartel provisions of the Competition 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. Although the Bureau will in principle keep confidential the identity of the person who reported an infringement, depending on the circumstances, that person may be required to testify in court proceedings.

The 2019 revision of the Immunity and Leniency Programs expressly clarified that applicants in both programs are not to be deemed as confidential informers, i.e. they cannot claim absolute protection of their identity.

Administrative monetary penalties were introduced in 2009 to the Competition Act for cases of abuses of dominant position. They can be of up to C$ 10 million (US$ 7,429,000 million) for an initial infringement and up to C$ 15 million (US$ 11,143,500 million) for subsequent infringements (Section 79 (3.1)(a) of the Competition Act) and three times the value of the benefit derived from the anticompetitive practice, or, if that amount cannot be reasonably determined, 3% of the person's annual worldwide gross revenues (Section 79 (3.1)(b) of the Competition Act). In determining the amount of an administrative monetary penalty, the Tribunal takes into account the effect on competition in the relevant market, the gross revenue from sales affected by the practice, any actual or anticipated profits affected by the practice, the financial position of the person against whom the order is made and the history of compliance with this Act by the person against whom the order is made (Section 79(3.2) of the Competition Act).

Administrative monetary penalties

Private parties harmed by a violation of a criminal provision of the Competition Act, or by the failure of another to comply with a court ruling, may bring a civil action in the Federal Court for the amount of the loss plus any additional amount the court may allow (Section 36 of the Competition Act). No private civil action is available for damages arising from non-criminal reviewable practices.

Global Competition Law

871. Leniency

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Les notions juridiques connexes

871. Leniency

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Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise