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August 22, 2019

Practical Law Canada has published a New Legal Update, which discusses key requirements of competition law compliance programs in Canada, in light of the U.S. Department of Justice’s recent shift to align its approach to recognizing compliance programs with Canada.  Below is an excerpt with a link to the full Legal Update at Practical Law.

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The Antitrust Division of the US Department of Justice (DOJ) recently announced a significant shift in how it would treat corporate antitrust compliance programs. In this regard, the DOJ will now factor “robust” compliance programs into prosecutors’ charging and sentencing decisions or in otherwise considering whether legal exposure should be mitigated (Assistant Attorney General Makan Delrahim Delivers Remarks at the New York University School of Law Program on Corporate Compliance and Enforcement, DOJ, July 11, 2019). The DOJ also issued new guidance setting out factors for prosecutors to consider in determining the effectiveness of a compliance program.

This is a marked departure from the past practice, as the DOJ’s Antitrust Division has not historically rewarded companies that violate US antitrust law for having compliance programs. This change now aligns the DOJ’s policy with the Canadian Competition Bureau’s (Bureau) current approach to competition law compliance programs.

In Canada, the Bureau also made significant changes to its policies on competition compliance programs in 2015, which included issuing a new Bulletin, Corporate Compliance Programs, pamphlet, Corporate Compliance and related compliance resources. Importantly, like the US DOJ, since 2015, the Bureau may also treat a competition compliance program in place at the time of a competition law offence as a mitigating factor when making sentencing recommendations to the Public Prosecution Service of Canada (PPSC). Also like the DOJ, the Bureau has issued detailed criteria for evaluating whether a compliance program is credible and effective for the purpose of potentially mitigating penalties. For more information, see Practice Note, Competition Law Compliance Programs.

The following are key aspects of competition compliance programs in Canada that companies and their advisors should be aware of:

Competition law compliance programs: not mandatory but strongly recommended. Competition law compliance programs are not mandatory in Canada, though they are highly recommended as they can, among other things, help companies identify potential violations and mitigate risk (for example, by applying for immunity or leniency under the Bureau’s Immunity and Leniency Programs). Compliance programs are, however, commonly negotiated as part of settlements under consent agreements with the Bureau or required as part of an alternative case resolution as a condition of the Bureau not pursuing enforcement action.

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For the full Update, see: Canadian Competition Law Compliance Programs: Key Requirements).

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    We are a Toronto based competition, advertising and regulatory law firm.

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