On July 3, 2014, the Commissioner of Competition announced that changes to the Competition Bureau’s Corporate Compliance Programs Bulletin are planned.  The Bulletin was last amended in 2010 to address the 2009 and 2010 amendments to the Competition Act.

Areas under consideration for updating include:

  1. the appropriate role of a company’s chief compliance officer;
  2. considering use of risk-based tools to illustrate competition risks;
  3. increasing incentives to reward credible and effective programs;
  4. ensuring programs include the ability to report without fear of retaliation; and
  5. address risks presented by third parties.

The Bulletin discusses the importance of compliance, fostering a culture of compliance, basic requirements for a credible and effective corporate compliance program and consideration given to a corporate compliance program in the context of immunity and leniency applications, sentencing and civil remedies, etc.  The Bulletin also provides tools to assist in the development of a compliance program.

The Appropriate Role of a Company’s Chief Compliance Officer

The Bulletin recognizes that while senior management is accountable for ensuring compliance, the responsibility may be delegated to a person or a group.  The Bulletin notes that the person or group must be in a position to act effectively in that there is independence, professionalism, empowerment, financial support and a solid understanding of what is taking place within the business.  The Bulletin envisages that the compliance officer will be a member of senior management. It may be that the updated bulletin will add some flesh to the foregoing concepts.

Considering Use of Risk-Based Tools to Illustrate Competition Risks

The Bulletin contains limited discussion regarding how a business might go about identifying areas of competition law risk and the nature and extent of such risk.  In contrast, in 2013 the International Chamber of Commerce published The ICC Antitrust Compliance Toolkit. The ICC Toolkit contains a more substantial discussion of risk identification tools. It may be that the Commissioner contemplates enhancing the Bulletin in similar respects.

Increasing Incentives to Reward Credible and Effective Programs

The Bulletin notes that the Commissioner may give weight to the pre-existence of a credible and effective program in making sentencing recommendations to the Director of Public Prosecutions.  The Bulletin also notes that establishing a credible and effective program or taking steps to strengthen an existing program in response to a violation of the Competition Act may favourably influence the Commissioner’s sentencing recommendations or the remedy sought by the Commissioner in civil reviewable matters.  It remains to be seen what additional incentives will be devised to reward credible and effective programs, and the extent to which these will be embraced by the Commissioner in actual practice and by the Director of Public Prosecutions, the courts and the Competition Tribunal.

Ensuring Programs Include the Ability to Report Without Fear of Retaliation

The Bulletin contemplates education of employees as to the whistleblowing provisions of the Competition Act but provides only a limited discussion of whistleblowing mechanisms.  Perhaps the updated bulletin will develop this aspect.

Address Risks Presented by Third Parties

We understand that the Commissioner would like compliance programs to address risks presented by suppliers, joint venture partners, trade associations and other third parties with which a company is associated. The Bulletin discusses these only in the most general way. Perhaps the updated bulletin will elaborate.

All of the above being noted, we hope that in revising the Bulletin, the Competition Bureau will resist the temptation of prescribing solutions. In the area of compliance, great flexibility is needed to achieve a program that, while credible and effective, is also realistic and appropriate, having regard to, among other things, the relevant industry, the position of the company within that industry, the competitive dynamics of the industry, and of course the resources of the company.