While the finalized Bulletin differs in a number of respects
from the original Draft Bulletin, it continues the key aspects.
The Bulletin provides for reduced fines or penalties for firms
with "credible and effective" compliance programs –
even where such policies fail to entirely prevent improper conduct.
While the existence of a policy will not automatically result in
reduced fines or penalties, the existence of a credible and
effective policy will be treated as a mitigating factor.
It provides for the possibility of reduced fines or penalties
(although to a lesser degree) for credible and effective compliance
policies implemented or strengthened after an
offence when firms seek credit for them. As a result, good records
of the functioning of the program will be required.
It provides that the existence of a credible and effective
compliance program will increase the chances of alternate case
resolutions (as opposed to criminal prosecutions) applying to the
It provides that the Competition Bureau's newly created
Compliance Unit, led by Nadia Brault, will be responsible for
reviewing the credibility and effectiveness of a company's
It adds two additional criteria to the existing five indicia of
effective compliance programs. The existing indicia were: Tone
at the Top; Appropriate Policies and Procedures; Training and
Education; Monitoring, Verification and Reporting Mechanisms;
and Disciplinary Procedures and Incentives. To these are
added two additional indicia: Appropriate Risk Assessment
and Program Evaluation.
With the issuance of this finalized Compliance Bulletin, the
Competition Bureau confirms its leading place amongst competition
and antitrust regulators with respect to compliance programs. In
particular, it, unlike most other antitrust agencies thus far, will
give credit for programs which have not prevented an offence, as
long as they are "credible and effective". This provides
an additional tangible benefit for organizations for establishing
The issuance of this Bulletin confirms the importance for all
firms – large and small – of having appropriate
compliance policies. There may be a tangible benefit for firms with
such policies, even if they get into trouble. More importantly, of
course, are the conduct related benefits which a successful policy
may achieve – either in preventing particular offences,
significantly reducing their scope, or bringing them to light
Appropriate policies have to be tailored to the size and
complexity of the business, and the types of risks which the
particular business faces, but all businesses in Canada can and
will benefit from establishing appropriate competition law
compliance policies. They also, as the Bureau's Bulletin notes,
assist in maintaining a good business reputation, provide early
warning of potential problems, increase employees sensitivities to
competition and antitrust concerns, and as a result, reduce the
Should firms wish to establish appropriate compliance policies,
the Competition Bureau website contains a number of useful tools. As well, most law firms which
practice in the area, including of course McMillan, are well placed
to assist organizations in establishing such policies and
If your organization has never had a competition law compliance
policy program, the Bureau's renewed interest in the area is a
good indication that you should consider establishing one. If you
have a program that has not been reviewed for some time, the
updated approach indicated by the Bureau's Bulletin, as well as
the positive incentives available, provide a terrific opportunity
to update your program.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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