Competition Compliance Programs Continue a Competition Bureau Priority

Inform businesses about how to minimize violations of the Competition Act, R.S.C. 1985, c. C-34 (Competition Act).

Detect actions that may violate the Competition Act.

Reduce risk.

Identify where an organization may be affected by other parties' anti-competitive conduct.

Are not expressly required by the Competition Act, but highly recommended by the Bureau for organizations of all sizes.

Can in some cases be ordered by a court, agreed to as part of a settlement with the Bureau or required as a condition of the Bureau not pursuing enforcement action (that is, as part of an alternative case resolution).

Should be tailored to the type of organization, its operations and specific risks.

Typically include:

Compliance Bulletin. In June 2015, the Bureau issued its updated Compliance Bulletin. Its new Bulletin, which is essential reading for executives and their counsel, is the key framework document for competition compliance in Canada. Adopting or enhancing competition compliance programs consistent with the Compliance Bulletin is also now routinely required by the Bureau in negotiated settlements following investigations.

Compliance Unit. The Bureau recently established a new Compliance Unit to oversee and coordinate its shared compliance promotion activities, including to administer its updated Compliance Bulletin. Some of the Compliance Unit's responsibilities include developing communication and educational materials, advocacy (promoting credible and effective compliance programs) and advising the Commissioner on compliance matters. Perhaps most importantly for businesses, the Compliance Unit also evaluates the credibility and effectiveness of compliance programs during Bureau investigations (which can mitigate penalties in some cases). For more information, see Remarks by John Pecman, Commissioner of Competition, Competition Bureau, June 9, 2015 and Compliance Bulletin.

Compliance programs and consent agreements. Over the past few years, the Bureau has been making its approach to negotiated settlements more systematic. This has included routinely requiring parties to adopt or enhance competition compliance programs consistent with its Compliance Bulletin. Recent consent agreements negotiated with the Bureau also show that the Bureau routinely requires parties to tailor their compliance efforts to alleviate the issues of the particular case. This is a reminder that one size does not fit all and that companies, associations and other organizations must tailor their compliance programs to reflect their specific operations and risks. For more information, see Deceptive Marketing Practices Digest. See also, Commissioner of Competition v. Rogers Communications Inc., Consent Agreement, Competition Tribunal, March 16, 2015, Commissioner of Competition v. Telus Communications Company, Consent Agreement, Competition Tribunal, December 30, 2015 and Commissioner of Competition v. Bell Mobility Inc., Consent Agreement, Competition Tribunal, May 27, 2016.

Focus on digital marketing compliance. One of the Bureau's compliance focuses is currently the digital economy. See, for example, 2016-2017 Annual Plan. In this respect, the Bureau has commenced enforcement and negotiated settlements in relation to online and digital marketing practices, including online disclaimers, electronic marketing under the Competition Act's new electronic marketing provisions, in-app purchases and online reviews. See, for example, the consent agreements above and Announcements, Bell customers to receive up to $11.82 million as part of Competition Bureau agreement, Competition Bureau, May 27, 2016, Avis and Budget to ensure prices advertised are accurate, Competition Bureau, June 2, 2016 and Bell Canada reaches agreement with Competition Bureau over online reviews, Competition Bureau, October 14, 2015. For more information, see also Practice Notes, Disclaimers Under the Competition Act and Testimonials Under the Competition Act, Disclaimers and the Competition Act Checklist and Testimonials and the Competition Act Checklist.

Association Compliance. Another current compliance focus for the Bureau is associations. This has included specific association-related guidelines in its Compliance Bulletin, association-related compliance resources, including associations in investigations and requiring them to adopt compliance programs as part of negotiated settlements. See, for example, Pamphlet, Trade Associations and the Competition Act, Competition Bureau, 2014 and Commissioner of Competition v. The Canadian Wireless Telecommunications Association, Consent Agreement, Competition Tribunal, May 27, 2016. For more information see Practice Note, Competition Law Compliance Programs, Competition Law Audit Checklist for Trade Associations and Trade Association Participation Checklist.

Compliance outreach to SMEs. As part of its ongoing shared compliance strategy, the Bureau is specifically increasing its competition compliance outreach efforts to SMEs. According to the Bureau, this effort is meant to promote the adoption of corporate compliance programs among SMEs. The Bureau plans to issue specific SME-focused compliance materials and indicated that it wants to increase competition compliance awareness in Western Canada and the Maritimes. See, for example, 2016-2017 Annual Plan and Remarks by John Pecman, Commissioner of Competition, June 9, 2015.

International cooperation. The Bureau has also increased its sharing of best practices in competition compliance with its international anti-trust agencies. See, for example, CB in Brief, Competition Bureau, July 2016.

Adopt and maintain a competition compliance program consistent with the Bureau's Compliance Bulletin.

Ensure that senior management support and enforce their compliance programs.

Regularly deliver internal competition compliance training and education.

Monitor competition law compliance developments.

Obtain legal advice in the event a competition issue arises.