On March 15, 2023, Canada’s federal Competition Bureau (Bureau) launched a new competition law Compliance Portal (see: Consultation on new Compliance Portal).
In making its announcement, the Bureau said that it launched its new Compliance Portal to help businesses stay on the right side of Canadian competition and labelling laws and that its core principles about competition law compliance programs had not changed.
The Bureau’s new Compliance Portal replaces its former Corporate Compliance Programs Bulletin (Compliance Bulletin), which was updated in 2015 and until now had been its key compliance guidance relating to Canadian competition law compliance programs.
The Bureau’s former Compliance Bulletin provided more comprehensive competition compliance guidance than the Bureau had issued before its 2015 Bulletin. It included a discussion of the seven essential elements that were then in the Bureau’s view necessary for a credible and effective competition compliance program, a template competition compliance program (which was very helpful to companies and other organizations) and employee certification letter and detailed due diligence checklists to comply with core provisions of the Competition Act, including participating in trade and professional association activities. For more information about trade associations and Canadian competition law, see Competition Law and Trade Associations.
Overall, the Bureau’s new Compliance Portal is a more user-friendly and interactive online resource than its previous Compliance Bulletin.
The Bureau’s new competition compliance guidance includes an overview of Canadian competition and packaging and labelling laws and compliance programs, the eight elements that the Bureau now currently considers to be necessary for a credible and effective competition law compliance program in Canada, guidance to comply with key provisions of the Competition Act, including Abuse of Dominance, Bid-Rigging, Conspiracies, Misleading Advertising and mergers and hypothetical competition law compliance case studies.
While the Bureau’s new Compliance Portal in many ways reflects its previous approach to competition law compliance, including core principles that compliance programs must be tailored and scaled to an organization’s operations and risks, need for senior management support and effective training, there have been several noteworthy changes.
With respect to Competition Compliance Programs and the Bureau’s Leniency Program, the Bureau’s former clear position that it would treat a credible and effective competition law program in place at the time of a competition law offence as a mitigating factor when making sentencing recommendations to the Public Prosecution Service of Canada in connection with a Leniency Program application has been removed.
This clear guidance had been a shift by the Bureau when it initially issued its 2015 Compliance Bulletin. It is not yet clear whether the Bureau will continue to take this position in its Leniency Program guidance. For more about the Bureau’s Immunity and Leniency Programs, see Immunity and Leniency Programs
With respect to trade and professional associations, the Bureau’s former detailed, and quite helpful, guidance for trade association participation and activities has been removed from its new Compliance Portal.
The Bureau’s new Compliance Portal now only provides general high-level guidance about the potential risks of participating in trade and professional association activities, including recommending to only participate in trade associations if they have a credible and effective compliance program. For more information about Canadian competition law and trade and professional associations, see: Trade Associations.
The Bureau’s former template competition law compliance program and template employee certification letter that were included before in its Compliance Bulletin are also now not included in its new Compliance Portal.
In addition, the Bureau’s new Compliance Portal includes an overview of criminal wage-fixing and no-poaching agreements between employers, which track new criminal offences that were added to section 45 of Canada’s Competition Act in June 2022 and that will come into force on June 23, 2023. For more information about these new wage-fixing and no-poaching agreement offences, see Conspiracy (Cartels).
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