Law Times

Law Times • sepTember 21, 2015 Page 11 www.lawtimesnews.com Competition Bureau bulletin New compliance guidelines draw praise, disappointment BY JULIUS MELNITZER For Law Times W hile lawyers have gone out of their way to laud the Competition Bureau's new corporate compliance guidelines, there's some disappointment over the failure to unequivocally recog- nize that the existence of an appropriate compliance program will in and of itself amount to a due-diligence defence where one is available as a matter of law. "The bureau has done some really good things, including its acknowledg- ment that the existence of an effective corporate compliance program will be a mitigating factor," says Ken Jull of Baker & McKenzie LLP. "But from an overarching point of view, it's regrettable that it has failed to recognize the existence of such a pro- gram as a legal defence in itself." Jull acknowledges that the new guide- lines, released as the corporate compli- ance program bulletin in June, provide an excellent framework for risk assess- ment and management programs as es- sential parts of a compliance program. "All the more reason that the bureau should recognize that a compliance pro- gram can constitute a defence to corpo- rate criminal liability, especially at orga- nizational levels beneath the supervision of senior officers," he says. But Oliver Borgers of McCarthy Té- trault LLP says it's unrealistic to expect that such an acknowledgment will ever crystallize. "I don't think the bureau will ever go further than stating that compliance programs will be taken into account as a miti- gating factor simply be- cause they don't want to paint themselves into a corner," he says. It's not as if Jull doesn't appreciate the guidelines' benefits. "It's fantastic how much the guidelines are doing to stress the im- portance of compliance programs," he says. "Equally impressive are the practical tools, including hypothetical examples, that the bureau has provided to help companies with their efforts to establish such programs." Included in the appendices, Jull notes, are "very useful tools" for smaller compa- nies that lack the resources to have third parties assist them in establishing their programs. To that end, the appendices feature a template-like corporate compli- ance framework accompanied by a step- by-step codification of how to implement the template. The materials also feature a due-diligence checklist as well as useful information on how to spot conspirato- rial and bid-rigging conduct. As well, there are important observa- tions on the role of compliance officers. "The guidelines em- phasize that the posi- tion should have a high- visibility title, appro- priate resources, and perhaps most impor- tantly, an opportunity to participate in senior management decision- making," says Jull. "And that makes sense because siloed compli- ance officers who sit in an office by themselves won't have much of an impact." Also useful, Jull adds, is the bureau's in- clusion on its web site of a link to the Inter- national Chamber of Commerce's antitrust compliance tool- kit. "The toolkit is one of the best prac- tical tools available to help companies embed a successful compliance culture," says Jull. To the bureau's credit, lawyers say the final version of the guidelines is a consid- erable upgrade over the regulator's ear- lier draft. "The initial draft was complex and detailed, but after working with the bar, the bureau realized that complexity might work for someone who had a law degree but not necessarily for someone who did not," says Borgers. "The final version represents a far more balanced and effective approach to the subject." The best thing about the new guidelines, Borgers adds, is their recogni- tion that the most effective programs are those tailored by individual companies to ref lect their specific circumstances. "So smaller businesses with fewer is- sues can have a simpler program while the bigger companies might have a more in-depth approach that involves the training and education of employees," he says. While compliance programs can be helpful when it comes to avoiding breaches and providing mitigating cir- cumstances if one occurs, there's another benefit that doesn't often emerge. "What may be most important for businesses is that a good education pro- gram will allow employees to recognize when a competitor is doing something inappropriate," says Borgers. "That allows companies to take ac- tions that will clean up the inappropriate behaviour and help to make themselves more competitive. You want to jump on top of the other guy before you start bleeding profits." For all of the benefits of compliance programs, however, many companies don't have them, either for lack of knowl- edge or time constraints. "Awareness has to increase so that companies recognize that putting a pro- gram in place is not a huge major legal exercise," says Borgers. "It requires some understanding of the business, but overall the process is not too painful and can save a ton of pain later on, like a vaccination." LT FOCUS Rejoice. Serengeti lets you take charge and take control of your entire legal landscape. You can organize and analyze everything from documents to deadlines, billing to budgets, pricing to profi tability, all with one surprisingly simple, maintenance-free system. In fact, Serengeti is so easy to use it's almost instinctive. Serengeti also allows you to collaborate, compare and share data more effectively than ever. Used by more than 18,000 in-house counsel and 21,000 law offi ces from international fi rms to solo practitioners, it's not only the most widely used system, it's also the highest rated. Just one more way Thomson Reuters gives you knowledge to act. To learn more, call 1-866-609-5811 or visit serengetilaw.com/canada The number one legal matter management, e-billing and performance analytics system saves you time, money and lots of headaches. Now, that's worth celebrating. 'Awareness has to increase so that compa- nies recognize that putting a program in place is not a huge major legal exercise,' says Oliver Borgers.

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