Written By Adam Kalbfleisch and Kolding Larson
On October 25, 2022, the Competition Bureau published its new Information Bulletin on Transparency, which explains the approach the Bureau will take when communicating with different groups of people during its investigations, including with those who are the subject of an investigation, as well as the general public, complainants and industry participants. The Bureau has said that the Bulletin—which replaces the Bureau's 2014 Information Bulletin on Communication during Inquiries—is intended to reflect the evolution of the Bureau's practices since 2014, including its stated effort to make its publications more accessible to Canadians by using plain language whenever possible.
As discussed further below, of particular note in the updated Bulletin is the Bureau's first-ever statement that it may publicly disclose details regarding its active investigations. The Bureau's historical practice was to refuse to disclose (including under questioning from Parliament) even the mere fact of an investigation into a particular target, on the basis that they were prohibited from sharing such information; the Bureau had consistently taken the position that they were permitted to disclose the existence of an investigation only once the investigation had become public through other sources. As such, the revised Bulletin represents a noteworthy deviation from the Bureau's historical practice.
It will be interesting to see how often and in what circumstances the Bureau will choose to release information regarding active, non-public investigations. It also remains to be seen how the Bureau will interpret its obligations to share information with parties, the public and third parties according to what it considers to be in the public interest—an assessment that bears no opportunity for judicial review or other challenge leaving a great deal of discretion in the hands of the Bureau.
Communication with Those Subject to an Investigation
Consistent with the approach outlined in its 2014 Bulletin, the manner in which the Bureau will communicate with those who are the subject of an investigation will depend on the nature of the investigation, such as whether it relates to civil or criminal matters. However, the updated Bulletin now clearly delineates how the Bureau will communicate with parties who are the subject of the following types of investigations: (a) merger reviews or civil investigations; (b) criminal investigations; and (c) investigations for conduct that can be pursued either criminally or civilly (referred to as "dual-track investigations"). In addition, the updated Bulletin describes how the Bureau will communicate with people during an investigation when it has engaged a lawyer to assist with the investigation.
Communication with Those Subject to a Merger Review or Civil Investigation
Notably, the updated Bulletin now provides details specific to the Bureau's approach to communicating with parties during an ongoing merger review (the 2014 Bulletin had not clearly distinguished between merger reviews and other civilly reviewable matters). It notes that the Bureau's approach will depend on whether the merger in question is subject to pre-merger notification, in which case it will provide updates to the merging businesses according to its published Service Standards.1 For non-notifiable merger reviews, the Bureau states that they will "often" communicate with the merging businesses directly to gather information it deems necessary for its review.
With respect to other civil investigations, the updated Bulletin notes that the Bureau will notify the subject of the investigation "when it is appropriate to do so" and again when it closes its investigation. Those who are the subject of an investigation may be entitled to certain types of information but must send the Bureau a written request to receive it.
For both merger reviews and other civil investigations, the updated Bulletin notes that the Bureau will "often" communicate the nature of its concerns, along with its approach, reasoning and the results of its investigations "at the appropriate time" on a "case by case basis." However, the Bureau may occasionally take steps without notifying those who are under review when the Commissioner believes that notice is not in the public interest. Further, once the Bureau has identified its concerns, it may invite discussions of resolution to avoid the length and expense of legal proceedings.
Communication with Those Subject to a Criminal Investigation
Consistent with the 2014 Bulletin, the updated Bulletin notes that the Bureau may communicate differently with those who cooperate with it during a criminal investigation compared to those who do not. When applicable, the Bureau will follow the procedures in the guidelines for its Immunity and Leniency Programs2 and Criminal Cartel Whistleblowing Initiative.3
The updated Bulletin notes that the Bureau will generally not notify those who are subject to a criminal investigation except in the following circumstances: (a) during Alternative Case Resolution discussions; (b) when those subject to the investigation are aware of the investigation after the Bureau closes its investigation; and (c) when the Public Prosecution Service of Canada (PPSC) decides not to pursue charges and the Bureau ends its investigation.
Communication with Those Subject to a Dual-Track Investigation
For dual-track investigations,4 the Bureau initially follows the procedure for communications in criminal matters until it decides to pursue the investigation civilly, at which point it then follows its procedures for other civil investigations.
Communication with Lawyers
The updated Bulletin notes that the way the Bureau will communicate with people under investigation can change if it involves lawyers in its investigation, such as those from the Department of Justice, the PPSC or private counsel retained by the Bureau. For example, lawyers who represent a client who is the subject of an investigation may be required to speak only to lawyers retained by the Bureau rather than to the Bureau itself (with limited exceptions).
Communication with Stakeholders
The updated Bulletin also sets out the ways in which the Bureau will communicate with those who wish to file a complaint, whether through the Bureau's Information Centre or by filing a "six-resident application."5 For confidentiality reasons, the Bureau generally does not provide information about the investigation to those who have submitted a complaint until the end of the investigation, at which point the Bureau may notify the complainant and the general public of the investigation by making an announcement or publishing documents on its website.
The Bureau may also contact people who work in the industry it is investigating to gather information (note that the Bureau treats this information as confidential). However, industry participants should not expect to receive information about an investigation except to the extent it helps them give information relevant to the Bureau's investigation.
The General Public
Statements Regarding Active Investigations
As mentioned above, the updated Bulletin notes that the Bureau may occasionally publish statements about active investigations, on a case-by-case basis, where it would help its investigation. For example, the Bureau may do so when it believes this would help it reach people who have relevant information to share but are unaware of the investigation. This deviates substantially from the Bureau's historical practice of not releasing details regarding its active investigations until they become publicly available through other sources (such as through court orders). In fact, prior to August 2020,6 the Bureau had never before identified the target of any active, non-public investigation and had refused to do so. It remains to be seen whether this practice will become more common moving forward. For this reason, businesses that are the subject of an ongoing investigation should be prepared for the possibility that the Bureau will make public certain information about the investigation even where there has been no finding of any wrongdoing.
If publicizing investigations prior to any finding of wrongdoing becomes more common then this could have unintended consequences, including exposing such targets to potentially serious reputational and other harm (e.g., filing of class action suits against) when no finding has been made.
The updated Bulletin also states that the Bureau may still wait until information regarding an active investigation has become public before publishing any statements. When information regarding an investigation becomes public due to the release of a court order, the Bureau may additionally publish a statement about the court order so that people know it is available and where to find it.
The Bureau has several options for releasing details regarding ongoing investigations. These options include listing ongoing reviews in the Bureau's Merger Register;7 making “call-outs” to stakeholders for information about specific topics in an industry; and/or publishing a summary of issues that the Bureau is examining.
Statements Regarding Completed Investigations
The updated Bulletin notes that the Bureau will generally issue a news release when an investigation results in court proceedings and that it may additionally publish statements describing its analysis and the reasons for its conclusions, but only when such a statement would provide helpful guidance and is appropriate in the circumstances. Further, the Bureau may publish information about warning letters that it sends to individuals and companies and may also make an announcement when a company completes the terms of an Alternative Case Resolution, if it is in the public interest. The updated Bulletin also notes that the Bureau may publish inspection reports made pursuant to Canadian labelling laws with or without identifying the companies it inspected.
However, the Bureau is guided by its confidentiality requirements in deciding whether to make the details of an investigation public and will consider several factors in deciding whether to do so. These factors include whether:
- the information will encourage greater compliance with the law;
- there is an opportunity to educate the public;
- clarification of policy or law is needed;
- there is a high level of public interest; or
- Canadians or other stakeholders are significantly affected by the conduct or practice under investigation.
For merger reviews and civil investigations, the Bureau may offer those who have cooperated with its investigation an opportunity to review public statements with the goal of helping to ensure accuracy and that no competitively sensitive information is shared.
Guidelines and bulletins
Finally, the updated Bulletin notes that the Bureau publishes guidelines and bulletins that describe how it approaches economic analysis and law enforcement. It updates these documents as required and is currently in the process of revising several of its enforcement guidelines in response to the 2022 amendments to the Competition Act.8 For more information on the 2022 amendments to the Competition Act, see our previous insight, First Round of Competition Act Amendments Now in Force.
If you have any questions about the Bureau's updated Information Bulletin on Transparency, please contact the Bennett Jones Competition/Antitrust group.
1 Competition Bureau, Fees and Service Standards Handbook for Mergers and Merger‑Related Matters, Section 5: Service Standards (23 June 2022), available at https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04358.html.
2 Competition Bureau, Immunity and Leniency Programs under the Competition Act (15 March 2019), available at https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04391.html.
3 Competition Bureau, Protection for whistleblowers (28 June 2022), available at https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02819.html.
4 The Bureau can investigate certain false or misleading representations to the public, or agreements between competitors, under either the criminal or civil provisions of the Competition Act.
5 Under section 9(1) of the Competition Act, any six residents who are not less than eighteen years of age may together apply to the Commissioner to commence an inquiry into certain matters described in subsections 9(1) (a)-(c).
6 In August 2020, the Competition Bureau invited market participants to provide input to inform its civil investigation into alleged conduct by Amazon. Prior to the Bureau's announcement, its investigation into Amazon had not been made public; it was by inviting market participants to provide input on its investigation that the Bureau identified Amazon as the subject of the investigation. See: Competition Bureau, Competition Bureau seeks input from market participants to inform an ongoing investigation of Amazon (14 August 2020), available at https://www.canada.ca/en/competition-bureau/news/2020/08/competition-bureau-seeks-input-from-market-participants-to-inform-an-ongoing-investigation-of-amazon.html.
7 Competition Bureau, Monthly report of concluded merger reviews, available at https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04293.html.
8 The Bureau has noted that it plans to update its Drip Pricing guidelines, publish new stand-alone guidance on no-poach and wage-fixing agreements and significantly revise its Abuse of Dominance Enforcement Guidelines.