Canada's Competition Bureau has published a revised Information Bulletin on Corporate Compliance Programs, in conjunction with the publication of a draft bulletin on trade associations, described in the preceding article.
The original information bulletin was issued by the Bureau in 1997, and the updated version largely elaborates on the principles set out in the original, but with some notable changes. In particular, the revised bulletin has been expanded to include a template compliance program, a template "certification letter" for execution by employees following training, and a "due diligence checklist" for senior management. Although the revised bulletin has no legal effect and is not binding on the Bureau, it provides businesses with guidance as to the elements of a credible and effective corporate compliance program - which could prove important in the Bureau's consideration of a recommendation for leniency or alternative resolutions, should prosecution under the Competition Act nonetheless become a possibility.
Like the original, the revised bulletin sets out five essential components of any corporate compliance program:
- senior management involvement and support;
- corporate compliance policies and procedures;
- training and education;
- monitoring, auditing and reporting mechanisms; and
- consistent disciplinary procedures and incentives.
The template compliance program framework contained in the revised bulletin, as well as the employee certification letter and the due diligence checklist for management may be used as illustrative guides, but they should not be viewed as prescriptive. These tools must be tailored to the user's particular situation and resources. Businesses are encouraged to obtain independent legal advice when developing a compliance program in order to ensure that it is effective and to address compliance issues specific to their business activities and industry.
As the revised bulletin notes, having a credible and effective corporate compliance program can reduce the risk of contravening the law and can also provide early warning of potentially anti-competitive conduct. In respect of certain offences, a business that has a credible and effective corporate compliance program in place may be able to demonstrate that it took reasonable steps to avoid non-compliance and to support a due diligence defence.
Interestingly, trade associations are singled out in the revised bulletin as being particularly able to benefit from the implementation of a compliance policy, as they may be exposed to greater risks of anti-competitive conduct by their members. The revised bulletin advises that more information regarding trade associations can be found in the Bureau's draft Information Bulletin on Trade Associations, which was released for public comment the same day.