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ARTICLE · 18 APRIL 2015

Settlement Privilege Does Not Protect Factual Information Communicated In Proffer Stage Of Competition Act Investigation

Norton Rose Fulbright Canada LLP
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The Ontario Superior Court of Justice held in R. v Nestlé Canada Inc. that communications between corporations and the Competition Bureau (Bureau) during the proffer stage of the Immunity Program or the Leniency Program should not be protected by settlement privilege

CanadaAntitrust/Competition Law
Kevin Ackhurst
Kevin Ackhurst
D. Michael Brown
D. Michael Brown
Andrew McCoomb
Andrew McCoomb
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The Ontario Superior Court of Justice held in R. v Nestlé Canada Inc. that communications between corporations and the Competition Bureau (Bureau) during the proffer stage of the Immunity Program or the Leniency Program should not be protected by settlement privilege.

This case has clear implications for any parties considering co-operating with the Competition Bureau to obtain immunity or leniency for possible conduct in breach of the Competition Act.

Background of the case

The Nestlé case concerned criminal charges of price-fixing contrary to the Competition Act following a Competition Bureau investigation. The criminal case was brought against Nestlé Canada Inc. based in part on information provided to the Bureau by Cadbury Canada Inc. and Hershey Canada Inc. through the Bureau's Immunity and Leniency Programs.1

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