Competition Act Compliance Programs and Audits

Overview

Violations of Canada’s Competition Act can lead to significant fines and possible imprisonment of those involved. The potential legal, economic and reputational risks of non-compliance with the Competition Act are real and need to be effectively managed by businesses as part of their overall risk-management strategy.

Osler’s Competition/Antitrust Group works with clients to develop, implement and maintain effective corporate compliance programs to minimize the risk of non-compliance with the Canadian Competition Act. Our team tailors our advice to each client’s specific business context and emphasizes a proactive approach to fostering a culture of compliance within our client’s organization. We do this by

  • identifying competition law compliance risks faced by your business.
  • assessing how serious the identified risks are in various areas of your business. It may be as simple as rating them as low, medium or high. Typically, high-risk areas are those where employees are likely to have contact with competitors.
  • establishing appropriate policies, procedures and training programs (web-based or in-person).
  • developing effective monitoring and auditing protocols to detect any potential non-compliance.

Typically, our competition risk-management strategies also involve having established processes and protocols for internal investigations and for unexpected Competition Bureau investigations or searches and seizures. While each fact situation is different, in our experience advance preparation is invaluable to organizations, allowing them to respond swiftly and effectively to such events on a cost-effective basis. In this regard, we assist businesses with developing and maintaining protocols and policies regarding search and seizure, internal and external communication strategies, electronic searches, interviewing personnel and advising boards.

The Commissioner’s Remarks on the Importance of a Compliance Program

“A credible and effective corporate compliance program provides its companies with more than just increased protection from illicit behaviour. Implementing a compliance program may provide you with a competitive advantage in all aspects of your business — financial, reputational and in recruitment and retention.

It boils down to five elements.

  1. Senior management must be involved — including the board of directors and this cannot be underscored enough. Senior management's clear and unequivocal support is what underpins a credible and effective corporate compliance program. This means that – in all ways – they demonstrate a commitment to compliance and a commitment to enforcing that compliance.
  2. Clearly establishing compliance policies and procedures that govern compliance. As I've noted, this is generally not the issue, but it is worth highlighting that these must be updated when changes within the business, the industry, or the laws and regulations themselves occur.
  3. Moving beyond a stack of papers in a drawer or a document on a shared drive, a successful compliance program must have an ongoing education and training component which lays out acceptable behaviour for all employees.
  4. A compliance program needs to be monitored, with auditing and reporting mechanisms to prevent and detect breaches of the program at all levels, including senior management.
  5. Finally it must have procedures for both disciplining and creating incentives, and these must be consistently applied. It is interesting to note that some companies have implemented "whistleblower" provisions in their compliance programs to encourage employees to self-report potential or actual misconduct without fear of penalty.”  

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