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Page 4 OctOber 27, 2014 • Law Times www.lawtimesnews.com NEWS REASONABLE DOUBT? If you're building your case with anything other than Canada's new and most comprehensive resource for criminal cases and expert commentary, it's only natural to wonder if you've missed something. NEW! WestlawNext® Canada CriminalSource™ Go to court with confidence. westlawnextcanada.com/criminalsource Draft your own customized documents with O'Brien's Encyclopedia of Forms, Eleventh Edition – Leases, Division IV. This service provides, both in looseleaf and electronic formats, a comprehensive collection of documents and provisions used in a commercial or residential leasing practice that can easily be adapted to suit your clients' needs. 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Prices subject to change without notice and subject to applicable taxes. 00218EB-A43199 CANADA LAW BOOK ® Available risk-free for 30 days Order online: www.carswell.com/obriens Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Compliance programs emphasized in new competition guidance by JULiUs meLniTZer For Law Times I n a bid to facilitate compli- ance efforts in the private sector to the benefit of both consumers and businesses, the Competition Bureau has re- leased a draft updated bulletin on corporate compliance programs. "The draft ref lects new devel- opments in how the bureau will recognize and consider compli- ance programs in the enforce- ment of the Competition Act, the Consumer Packaging and Label- ling Act, the Textile Labelling Act, and the Precious Metals Marking Act," says Ken Jull, a partner in the compliance and investigations practice group at Baker & McK- enzie LLP's Toronto office. It's not that compliance guide- lines aren't already in force. "The update is intended not only to ref lect more details but also a recognition that the bureau considers it critical to have the message that compliance pro- grams are important out in the marketplace," says Oliver Borg- ers, a partner in the competition law group at McCarthy Tétrault LLP's Toronto office. "The bureau recognizes that a fair proportion of Canadian com- panies don't have such programs and is hoping to change this." To that end, the bulletin in- cludes an incentive program that features a discretionary reduction in fines for companies that qualify for leniency under the bureau's leniency program and can show they have a credible and effective compliance program in place. "My impression, however, is that the bulletin is somewhat am- biguous with respect to whether it authorizes a deferred prosecu- tion program except in cartel cas- es," says Jull. Nevertheless, there are other benefits to having an in-house compliance program. Accord- ing to Borgers, they include early detection of anticompetitive con- duct; allowing a company to make a timely application for immunity or leniency; knowing how to deal with search warrants; and consid- eration by the bureau when it's de- ciding whether to pursue a matter civilly or criminally. In announcing the updated guidelines recently at the Cana- dian Bar Association's fall confer- ence, commissioner of competi- tion John Pecman also gave notice of the bureau's intention to estab- lish a chief compliance officer. "While this role is still be- ing f leshed out, reviewing the programs of companies that are seeking a reduction in fines will be among the responsibilities of this position," he said. The new guidelines adopt a risk-based approach that's co nsistent with the International Chamber of Commerce's work in the area. The bulletin cites seven basic elements of a successful compliance program, including management involvement and support; risk-based corporate compliance and assessment; de- veloping policies and procedures that are most relevant to the busi- ness, operations, and employees; training and education; moni- toring, auditing, and reporting mechanisms; disciplinary proce- dures and incentives; and evalu- ating the program regularly. Borgers says the key factor is simply engaging in the exercise of creating a program. "So while the discussion of what the program should contain is interesting and should be pur- sued as well as anyone can, having the discussion in the first place goes a long way to achieving the risk-management goals," he says. Still, there's a debate about whether the compliance pro- gram should feature long and academic written materials or whether the information should be short and simple. "My personal view is that companies have to find out what works best with most employees, and generally that's not to o com- plex," says Borgers. "If you're engaged in a non-le- gal business, the program needs to be simple." Education is another key to success. "Nothing beats having the lawyers right there in front of em- ployees who are asking questions and engaging in a real-world dis- cussion of what the workers are doing each day," says Borgers. Finally, the bulletin adds vari- ous hypothetical scenarios, with a particular focus on small- and medium-sized businesses, to the guidelines. These scenarios pro- vide additional guidance on how the bureau analyzes compliance- related issues. The deadline for comments on the bulletin is Nov. 17. LT The bulletin 'is somewhat ambiguous with respect to whether it authorizes a deferred prosecution program except in cartel cases,' says Ken Jull.

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