“Which brings me to the Bureau’s role in promoting compliance. Specifically, the Bureau promotes compliance through enforcement and it provides the education and the tools that assist the corporate community in developing corporate compliance programs. We all know businesses and individuals have a duty to act lawfully — and, the Bureau expects that businesses and their senior management, on the whole, want to comply with the law. It is our hope that by now, it is clear that the legal, economic and reputational risks of non-compliance far outweigh any perceived advantages. Non-compliance costs businesses dearly – not just in terms of financial and legal penalties, but through negative publicity, loss of business opportunities and lost management time.”
(Commissioner of Competition)
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DECEMBER 2023 COMPETITION ACT AMENDMENTS
On December 15, 2023, Bill C-56 (An Act to amend the Excise Tax Act and the Competition Act), which introduced the first of two new significant rounds of amendments to the federal Competition Act, largely came into force.
This first new round of amendments to the Competition Act, which is intended to strengthen the ability of the Competition Bureau and private parties to enforce Canadian competition law and enhance competition generally in Canada, includes fundamental changes to Canadian competition law not seen since the last major amendments in 2009.
In general, the amendments to the Competition Act under Bill C-56 include new broad powers for the Competition Bureau to conduct market studies, changes to the core substantive test for abuse of dominance under section 79 (creating new two-track tests for abuse of dominance), increased penalties for abuse of dominance, broadening the civil agreements provision (section 90.1) to include agreements between non-competitors (i.e., to also apply to vertical agreements, such as distribution/supply agreements and vertical joint venture agreements) and repealing the efficiencies defences under section 90.1 and also for mergers under section 96.
These amendments increase the potential competition law risk for companies, trade and professional associations and other entities, particularly those without credible and effective competition law compliance programs and that have not reviewed their business practices to reflect Canada’s new competition law.
The amendments introduced by Bill C-56 in December 2023 are expected to be followed by a second and more significant round of amendments contained in Bill C-59, which is currently working its way through Parliament. If passed, Bill C-59 would be the most important amendments to Canadian competition law since the current modern Competition Act replaced the former Combines Investigation Act in the 1980s.
For more information about the December 2023 amendments, see: Significant Canadian Competition Act Amendments Come Into Force (Bill C-56). See also: Competition Bureau, Guide to the December 2023 amendments to the Competition Act. For more information about Bill C-59, the second amending bill, which has not yet passed, see here.
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OVERVIEW OF COMPETITION LAW
COMPLIANCE IN CANADA
Competition law compliance programs are not mandatory in Canada (i.e., they are not required by the federal Competition Act or by the Competition Bureau, which administers and enforces the Competition Act).
Competition law compliance programs are, however, highly advisable for companies, trade and professional associations and other organizations that may be exposed to potential competition law risk.
Competition compliance programs may also, in some cases, be ordered by a court, agreed to as part of a settlement with the Competition Bureau (e.g., a term of a negotiated consent agreement) or required as a condition of the Competition Bureau not pursuing enforcement action (i.e., as part of an alternative case resolution in an enforcement matter).
There is no single form of competition law compliance program in Canada. They should be tailored to, among other things, a company’s or other organization’s particular operations and potential competition law risks.
Competition law compliance programs typically include the following elements:
1. A compliance policy (e.g., a one-page statement reflecting a company’s commitment to comply with the letter and spirit of competition laws).
2. A compliance program document (i.e., the core compliance document that sets out the relevant competition laws and the organization’s compliance policies and procedures).
3. Compliance guidelines for relevant activities and events (e.g., conduct of meeting guidelines, information exchange guidelines, document creation/retention guidelines and search and seizure guidelines).
4. A form of employee certification letter.
Regular training and education (e.g., for sales and other personnel that are most at risk of violating competition laws, new directors and officers, etc.).
BENEFITS OF A CREDIBLE AND EFFECTIVE
COMPETITION LAW COMPLIANCE PROGRAM
A credible and effective competition law compliance program has a number of benefits.
These include to: (i) maintain a good reputation for a company, association or other organization, (ii) minimize the risk of potential non-compliance with competition laws, (iii) help detect potential competition law violations, (iv) potential favorable treatment in sentencing, (v) reduce potential director and officer liability and (vi) identify potential competition law violations early to seek immunity or leniency under the Competition Bureau’s Immunity and Leniency Programs.
COMPETITION BUREAU COMPETITION LAW
COMPLIANCE GUIDANCE
In March 2023, the Competition Bureau launched a new online competition law Compliance Hub.
When the Competition Bureau launched its new online resource, it said that it was intended to help businesses stay on the right side of Canadian competition and labelling laws and that its core principles about competition law compliance programs had not changed.
The Bureau’s new Compliance Hub replaces its former Corporate Compliance Programs Bulletin (Compliance Bulletin), which had been its key compliance guidance relating to Canadian competition law compliance programs.
Overall, the Bureau’s new Compliance Hub is a more user-friendly and interactive resource than its previous Compliance Bulletin and largely reflects its previous approach to competition law compliance, including core principles that compliance programs must be tailored and scaled to an organization’s operations and risks, the need for senior management support and effective training.
The Compliance Hub includes an overview of Canadian competition law compliance programs and the core principles of an effective compliance program, which, according to the Competition Bureau, are building a culture of compliance with management support, assessing competition law risks, implementing tailored compliance policies, procedures and controls, training and communicating the program, using effective reporting mechanisms, adopting monitoring, auditing measures and incentives for compliance and discipline for non-compliance and periodic evaluation and revising the program.
The Compliance Hub also includes overviews of key potential areas of competition law risk and related case studies, including criminal conspiracies, bid-rigging, wage-fixing and no-poaching agreements, deceptive marketing practices, mergers and abuse of dominance. See: here.
For more information about these provisions of the Competition Act, see: Abuse of Dominance, Bid-Rigging, Conspiracy (Cartels) and Misleading Advertising.
Competition Law Compliance
For Trade and Professional Associations
With respect to trade and professional associations, like the Competition Bureau’s former competition compliance guidance over the years, it provides specific recommendations for association related compliance.
This includes encouraging trade associations to have credible and effective competition law compliance programs and requiring associations to have compliance programs in place as a condition of participation.
The Competition Bureau also provides the following specific compliance recommendations for competition law compliance and trade associations:
1. Participate in trade association activities only if the association implements a credible and effective competition law compliance program.
2. Document all contact with competitors and keep proper records. If your external trade association activities could create an appearance of collusion, make the necessary changes to avoid that.
3. Create a clear written agenda when meeting with competitors and do not stray from the agenda.
For more information about competition law compliance for trade/professional associations, see: Associations.
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SERVICES AND CONTACT
We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.
Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.
To contact us about a potential legal matter, see: contact
For more information about our firm, visit our website: Competitionlawyer.ca
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