30 | LEXPERT • December 2015 | www.lexpert.ca
ANTITRUST
IN RECENT YEARS, Canadian competition class-action jurisprudence has tilted in plain-
tiffs' favor. Canadian courts have recognized low thresholds for certification and allowed
certification of indirect purchaser class-action lawsuits. This trend in Canadian jurisprudence
has continued with two disclosure-related decisions within the past year.
These decisions have important implications for US parties defending claims in Canada and
US parties that are subject to Canadian antitrust investigations. The decisions are particularly
notable in that documents and evidence that might not typically be disclosed in the US are
indeed disclosable in Canadian class actions or to defendants in criminal proceedings.
R. v. Nestlé Canada Inc. - In February 2015, the Ontario Superior Court released its
decision in R. v. Nestlé Canada Inc., 2015 ONSC 810 (Nestlé). The court held that informa-
tion voluntarily provided to the Canadian Competition Bureau (Bureau) under its Immunity
and Leniency Programs is not protected by settlement privilege and must be disclosed to the
accused in related criminal proceedings. Moreover, the inapplicability of settlement privilege
to these communications would imply that they could similarly be the subject of disclosure in
a private action.
As is the case in the US, Canada's Immunity and Leniency Programs have proven to be rich
sources of information for Bureau investigations into anti-competitive conduct. Through the
Immunity Program, participants in cartel-like activity trade information in exchange for im-
munity from prosecution. Similarly, the Leniency Program allows persons not eligible for im-
munity to obtain lenient sentencing in exchange for cooperating with the Bureau's investiga-
tion. Typically, the initial tranche of information that is provided to the Bureau is in the form
of a "proffer," and it is on the basis of the proffer that the Bureau and the Immunity or Leniency
applicant negotiate the terms of their deal.
The Nestlé decision puts those contemplating the Immunity and Leniency Programs on no-
tice that information provided to the Bureau during proffer meetings - that is, before any sort
of agreement with the Bureau has been reached - can be subject to disclosure in subsequent
criminal proceedings. By extension, this means that the possibility also exists for the commu-
nications to be discoverable in civil litigation.
An Open Book:
Canadian Courts
Favor Disclosure
in Antitrust Cases
Two recent decisions indicate a trend in Canadian
jurisprudence towards disclosure, making it clear
that information in the Competition Bureau's
hands is not subject to absolute confidentiality
BY NIKIFOROS IATROU, BRONWYN ROE AND JEFF SCORGIE; WEIRFOULDS LLP
