CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
7. Witness and Expert Opinions 7.1 Witness Procedure Provincial Superior Courts
tial. Section 105 permits the parties to file a consent agreement with the Competition Tribunal for registra - tion, after which it has the same force and effect as an order of the Tribunal. Once registered, the agreement ordinarily becomes part of the public record and is available to third parties. That said, commercially sensitive information may in appropriate circumstances be protected through con - fidentiality orders or redactions, consistent with the Tribunal’s general powers to protect confidential infor - mation. The underlying evidentiary record and settle - ment negotiations are not necessarily public merely because a consent agreement has been registered. Leniency and Immunity Agreements By contrast, leniency and immunity agreements are generally afforded a high degree of confidentiality. The Competition Bureau’s immunity and leniency programmes expressly contemplate confidentiality protections for applicants, reflecting the importance of encouraging self-reporting of cartel conduct and other criminal offences under the Competition Act. In addition, Section 29 of the Competition Act pro - hibits the communication of information obtained by the Bureau in the administration or enforcement of the Act, subject to limited exceptions. This protection extends to information provided voluntarily as well as information obtained through compulsory investiga - tive processes. Disclosure in Private Antitrust Litigation Although leniency and immunity materials are not automatically available to private plaintiffs, confiden - tiality is not absolute. Canadian courts have recog - nised that Bureau materials may be producible where required by law or court order, subject to Section 29 confidentiality protections, public interest considera - tions, and applicable claims of solicitor-client privilege or litigation privilege. Accordingly, the existence of a leniency or immunity agreement may become known in follow-on civil litigation, but the underlying com - munications, witness statements, and investigative materials will often remain protected from disclosure.
In provincial superior courts, the procedure for hearing witnesses is governed by the applicable rules of civil procedure. For example, in Ontario, examinations for discovery are governed by Rule 31 of the Rules of Civil Procedure, while evidence at trial, including the examination, cross-examination and re-examination of witnesses, is addressed through various proce - dural and evidentiary rules. Witness attendance may be compelled through a summons to witness under Rule 53.04. In criminal antitrust proceedings, witness testimony is governed by the Criminal Code and the applicable criminal procedure rules. Federal Court In the Federal Court, witness evidence is governed by the Federal Courts Rules. Examinations for dis - covery are addressed in Rules 234-248, while sub - poenas requiring a witness to attend and testify or produce documents are governed by Rules 269-273. Witnesses may provide viva voce evidence at trial and are subject to cross-examination, while expert wit - nesses must comply with the additional requirements applicable to expert evidence, including the obligation to complete a prescribed certificate acknowledging that the expert has read and agrees to be bound by the Code of Conduct for Expert Witnesses. Competition Tribunal The Tribunal’s procedures are more flexible. Rule 2 of the Competition Tribunal Rules permits the Tribunal to “dispense with, vary or supplement” the rules to ensure matters are dealt with informally, expeditious - ly, and fairly. Rule 7 authorises the Registrar to issue subpoenas compelling witness attendance and the production of documents. In practice, witnesses and experts are frequently examined and cross-examined at oral hearings, but the Tribunal retains broad discre - tion to determine the manner in which evidence will be presented. 7.2 Expert Witness Role and Procedure Expert evidence plays a central role in Canadian anti - trust litigation. Courts and the Competition Tribunal frequently rely on economists, accountants, indus -
51 A NTITRUST LI T IGATI O N 2026
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