On October 24, 2008 the Competition Bureau published its updated Bulletin on Corporate Compliance Programs (Bulletin). The Bulletin, which was created in 1997 and revised in 2006, is designed to provide guidance to corporations in implementing credible and effective compliance programs that comply with the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act (Acts).
The revised Bulletin still recommends five basic requirements for a corporate compliance program:
(1) obtain senior management involvement and support;
(2) establish and distribute corporate compliance policies and procedures;
(3) continuously train and educate staff on compliance issues, including their duties to comply with the law and internal policies and procedures;
(4) implement monitoring, auditing and reporting mechanisms; and
(5) provide incentives for compliance and ensure consistent disciplinary procedures to deter and demonstrate the business’ commitment to the compliance program.
The Bulletin now provides more detailed guidance on how a business can incorporate these essential components into a program. The Bulletin has also added tools that a business can use for illustrative purposes in creating a legitimate corporate compliance program. These tools include a Corporate Compliance framework, a template Certification Letter and a Due Diligence Checklist.
Although a court or the Competition Tribunal can order the implementation of a corporate compliance program in certain situations, it is not mandatory for Canadian businesses to establish such a program. Nevertheless, businesses may now be giving corporate compliance programs a second look; the revised Bulletin identifies how the existence of a credible and effective program can influence the Competition Bureau’s enforcement-related decisions. The Bulletin notes that where a business allegedly commits an offence under any of the Acts which provide for an examination of the business’ due diligence, the presence of a credible and effective program may be evidence of the exercise of appropriate due diligence by the business and could act as a mitigating factor.
Additionally, the existence of a legitimate corporate compliance program may be considered by the Competition Bureau in determining whether to charge a business under the criminal or civil provisions of the Competition Act for false or misleading representations or deceptive marketing practices. Furthermore, the Commissioner of Competition may take into account the presence of a compliance program in deciding whether to use an alternative case resolution approach to resolve a breach of any of the Acts.