The Competition Bureau's Immunity and Leniency Programs (the "Programs") are a critical component of the Bureau's investigative toolbox, as they provide incentives for corporations or individuals to come forward with information evidencing anti-competitive conduct in return for either a grant of immunity from prosecution or the promise of leniency. Culminating in a signed agreement, the Programs require that the settling party provide the Crown with "full, frank and truthful information" and all non-privileged documents and evidence, in addition to an ongoing commitment to co-operate.

On Feb. 4, 2015, Justice Nordheimer of the Ontario Superior Court released a decision in the R v Nestlé et al. case in response to a Crown application. He ordered disclosure of all factual information provided by the co-operating parties during the initial proffer phase of the Programs.

In this complex criminal price-fixing prosecution involving numerous corporate and individual defendants, the Crown sought to prevent disclosure to the accused of this information. The settling parties supported the Crown in its contention that the information conveyed to the Bureau prior to signing the Immunity or Leniency agreement was subject to either settlement privilege, or alternatively, solicitor-client privilege.

Justice Nordheimer rejected both claims. First, he concluded that any solicitor-client privilege that may have originally attached to the information was waived once the defendant provided it to the Bureau, a party adverse in interest. Second, he held that settlement privilege does not apply to prohibit the disclosure of factual information provided to the Crown in respect of an investigation where that information is provided knowing that the Crown intends to rely on the information for the purposes of a criminal prosecution.

Deciding that settlement privilege did not extend to the proffered information at issue, Justice Nordheimer ordered disclosure of all factual information provided to the Crown by the co-operating parties prior to executing the Immunity and Leniency agreements. Underpinning this decision was the importance of recognizing that the co-operating parties seeking to prevent disclosure were facing no criminal or civil proceeding, whereas the parties seeking disclosure of the relevant information were still in the midst of a criminal prosecution. Moreover, the co-operating parties were fully aware that the Immunity and Leniency agreements compelled them to convey information to the Crown for the purpose of prosecuting the remaining accused.

This decision provides important clarification for all future co-operating parties. Claims of privilege will not protect factual information that must be provided under the Programs. Any factual information conveyed to the Competition Bureau, both prior and subsequent to the granting of Immunity or Leniency, including at the very earliest proffer stage, will have to be disclosed to any parties subsequently facing a criminal prosecution.