COMMISSIONER EMPHASIZES IMPORTANCE OF COMPETITION LAW COMPLIANCE

On July 3, 2014, Commissioner John Pecman participated in the Canadian Competition Law Compliance Workshop in Toronto, Canada. The workshop, hosted by Blakes and chaired by Brian Facey, Chair of the Blakes Competition, Antitrust & Foreign Investment group, was a collaborative effort of the International Chamber of Commerce, the Canadian Chamber of Commerce, the Canadian Corporate Counsel Association, the Canadian Bar Association and the Competition Bureau (Bureau).

Promotion of competition law compliance continues to be a top priority for the Bureau and the Commissioner noted that “an ounce of prevention is worth a pound of cure.” Commissioner Pecman also announced that changes to the Bureau’s Corporate Compliance Programs Bulletin are forthcoming. The Bureau’s Corporate Compliance Programs Bulletin sets out the Bureau’s perspectives on effective competition law compliance programs and the consideration given to such programs in enforcement proceedings by the Bureau. Several topics are being considered for the updated Bulletin, including:

  • the role of a company’s chief compliance officer
  • increasing incentives to reward credible and effective compliance programs
  • risk-based tools to illustrate competition risks
  • ensuring the program includes the ability to report without fear of retaliation
  • risks presented by third parties (e.g., membership in trade associations, joint venture partners)

The Bureau plans to begin public consultations in the fall.

NEW GUIDANCE DOCUMENTS RELEASED BY COMPETITION BUREAU

The Bureau has recently released a number of publications in an ongoing effort to enhance transparency and provide guidance to businesses.

  • On June 26, 2014, the Bureau released its new Bulletin on Communication during Inquiries, finalizing the draft that was released for public consultation in October 2013. The Bulletin summarizes how and when the Bureau communicates with various stakeholders in the context of an inquiry. The Bureau will normally follow the communications approach described in the Bulletin regarding the commencement of an inquiry, case resolution opportunities and/or the discontinuance of an inquiry. Case-specific circumstances may, however, require the Bureau to diverge from the approach set out in the Bulletin from time to time.
  • On May 5, 2014, the Bureau issued its 2014-2015 Annual Plan: Promoting Compliance for the Benefit of Canadian Consumers. The first of its kind to be published by the Bureau, the 2014-2015 Annual Plan anticipates strategic interventions in regulated sectors, expanded stakeholder outreach efforts to broaden awareness and support for competition principles, an active advocacy role, and vigilant competition law enforcement.
  • On April 2, 2014, the Bureau released draft updates to the Intellectual Property Enforcement Guidelines. Although the changes were generally technical in nature, one noteworthy revision was made to the Bureau’s approach to the non-use of intellectual property. The Bureau proposed to remove the non-use of intellectual property from the types of conduct that are considered to be a “mere exercise” of an IP right and not subject it to scrutiny under the general provisions of the Competition Act. Further substantive revisions to the Bureau’s Guidelines regarding the treatment of intellectual property are anticipated in the future.
  • On March 20, 2014, the Bureau released its draft Price Maintenance Enforcement Guidelines. The Guidelines provide direction on the application of Canada’s price maintenance laws and the use of common business practices, such as manufacturer-suggested retail pricing and minimum advertised prices. They also include examples of scenarios where price maintenance could be either pro- or anti-competitive, depending on the circumstances.

REALIGNMENT OF BRANCHES AT CANADIAN COMPETITION BUREAU

On May 21, 2014, Commissioner Pecman announced that the Bureau will restructure its operating branches. The most prominent change will result in the four main enforcement branches being combined into two. The Mergers and Civil Matters branches will be combined into one branch, which will deal with non-criminal matters (e.g., mergers, competitor collaborations, abuse of dominance, price maintenance exclusive dealing and other vertical arrangements). This branch will also deal with non-criminal misleading advertising and be headed by Senior Deputy Commissioner Lisa Campbell. A second branch will combine the Criminal Matters and Fair Business Practices branches and deal with criminal matters (e.g., price fixing, bid rigging and criminal misleading advertising).  The new Criminal Branch will be headed by Senior Deputy Commissioner Matthew Boswell.