Rewards-based whistleblower programs involve the payment of monetary rewards to those who provide the government with key evidence assisting in the prosecution of criminal conduct. Over the last few years these whistleblower rewards programs have become a feature of both Canadian and American securities law enforcement. Now, with the introduction of the Whistleblower Rewards Program ("Rewards Program") by the Antitrust Division of the United States Department of Justice ("US DOJ"), these programs have been extended to competition enforcement in the United States. This marks a divergence – for now – from Canada's competition law incentive programs for encouraging the reporting of offences.
The Canadian Competition Bureau ("the Bureau") operates Immunity and Leniency Programs to encourage individuals and businesses to self-report criminal violations of the Competition Act for conduct such as price-fixing conspiracies and bid rigging. These programs provide protections and reduced penalties for cooperation, but no cash incentives.
- The Immunity Program grants immunity from prosecution to parties who are first to disclose their involvement in unlawful conduct under the Competition Act and who cooperate with the Bureau's investigation.1 To be eligible for the program, the Bureau must either not be aware of the offence, or, if the Bureau is aware, the applicant must come forward before the Bureau refers the matter to the Director of Public Prosecutions. Parties seeking immunity are required to make full disclosure of all their evidence.
- The Leniency Program provides "leniency cooperation credit" to persons who are not the first to come forward, but who admit to participating in conspiracy or bid rigging and who provide evidence to assist in prosecutions. The Leniency Program aims to provide a "predictable and transparent manner to resolve liability" for offenders of the Competition Act's cartel provisions, with eligible applicants receiving fine reductions proportionate to their cooperation.2
The Canadian government's immunity and leniency program is based on similar programs in other jurisdictions, and most specifically based on the US Immunity & leniency programs.
In addition to its immunity and leniency programs, the Competition Act contains standalone whistleblower provisions that protect individuals who report potential violations to the Bureau. The Competition Act safeguards a whistleblowers identity3 and prohibits reprisal, such as dismissal, suspension, demotion, harassment, or denial of benefits, against employees who, in good faith and on reasonable belief, report potential violations, cooperate with the Bureau, or assist in related proceedings.4 In the United States, similar protections exist under the Criminal Antitrust Anti-Retaliation Act, which shields employees, contractors, and agents from retaliation for reporting suspected criminal antitrust violations or assisting in investigations, except where the individual planned or initiated the unlawful conduct.5
On July 8, 2025, the US DOJ introduced a Rewards Program that offers monetary awards to individuals who voluntarily provide original information on eligible criminal violations of U.S. antitrust laws.6 Eligible criminal violations are defined as potential or actual violations of a federal criminal statute within the discretion of the of the US DOJ.7 Some examples include violations of the price-fixing and bid rigging provisions of the Sherman Act.8 Reward conditions require that the information be previously unknown to any government agency and that the information result in criminal fines or an equivalent recovery from a deferred prosecution or non-prosecution agreement of at least US$1 million. Qualifying whistleblowers are eligible for a presumptive award of between 15% and 30% of the fine or recovery, with the precise amount determined at the US DOJ's discretion.9
As noted, rewards programs are new to the competition/antitrust context. While the Bureau currently lacks a cash rewards regime, the Ontario Securities Commission ("OSC") has operated a program under Policy 15-601 since 2016, which may award up to C$5 million to individuals who provide original, useful information regarding violations of Ontario securities law leading to over C$1 million in total monetary sanctions.10 As of March 31, 2022, the OSC reported over C$9 million awarded to 11 whistleblowers, with approximately C$48 million in sanctions and voluntary payments resulting from their tips.11 The OSC's model – though not universally regarded as a powerful enforcement driver – demonstrates how financial incentives could influence cooperation in other enforcement contexts.
Similarly, but on a somewhat grander scale, the US Securities and Exchange Commission ("SEC") Whistleblower Program provides cash incentives for individuals to come forward and report possible violations of US federal securities laws. Eligible whistleblowers are entitled to an award between 10% and 30% of the monetary sanctions collected in actions brought by the SEC and related actions brought by certain other regulatory and law enforcement authorities.12 To be eligible for an award, the information provided must lead to a successful SEC enforcement action resulting in an order of monetary sanctions exceeding US$1 million. The SEC program is big business. It powerfully incentivizes the reporting of offences and has resulted in a small legal industry organized around acting for whistleblowers. The program has to date awarded more than US$2.2 billion to 444 individual whistleblowers since the Program's inception in 2011.13 The largest amount awarded to a whistleblower to date was US$279 million. The Program also prohibits retaliation by employers against employees who provide the SEC with information about possible securities violations.14
The impact of the DOJ's Rewards Program remains to be seen but raises practical questions for Canadian competition law. The US program will create meaningful additional incentives to report anti-competitive conduct as has already occurred in the US securities world. This may have direct implications for Canadian competition law enforcement, insofar as cartels may operate, or if believed to operate, across the border. Consequently, more cartels involving Canadian conduct, and implicating liability in Canada – both by way of government action and class action lawsuits, may come to light. In addition, of course, it may become inspiration for Canada to adopt a rewards-based program of its own. Financial incentives could increase both the volume and quality of tips – especially from employees of, and those who contract with, a business that would not benefit from the Immunity and Leniency program. Whether the Bureau adopts a comparable rewards-based program remains an open question but is one with potential implications for its ability to detect and prosecute anti-competitive conduct in a domestic and global enforcement environment. Whether or not the Bureau does, the US DOJ program has significant implications for Canadian competition law enforcement.
Footnotes
1. See online: Immunity and Leniency Program under Competition Act.
2. See online: Immunity and Leniency Programs under the Competition Act, Obtaining Leniency.
3. Competition Act, section 66.1.
4. Competition Act, section 66.2.
5. United States, Criminal Antitrust Retaliation Act, Section §7a–3.
6. See online: Memorandum of Understanding Regarding the Whistleblower Rewards Program and Procedures.
7. ibid.
8. Ibid.
9. Ibid.
10. See online: "OSC – Whistleblower Program".
11. Ibid.
12. See online, "Annual Whistleblower Report".
13. Ibid.
14. See online: "SEC – Whistleblower Protections".
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
