Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Canada Competition Bureau head urges “culture of compliance”, (Nov 18, 2013)

By Tobias J. Gillett, J.D., LL.M.

Canada Competition Bureau Commissioner John Pecman described some of his priorities for Bureau enforcement and advocacy and called for increased emphasis on compliance programs by companies and trade associations in a speech delivered on November 14 at the Toronto offices of Osler, Hoskin & Harcourt LLP.

Pecman categorized his priorities under the headings Compliance, Communication, Collaboration, and Canadians. He referred to effective compliance programs as “a company’s best tool for avoiding the reputational and financial costs that can arise from non-compliance with the [Competition] Act.” However, he noted that the drafting of a compliance program on its own is not enough. Rather, he emphasized that businesses must develop a “culture of compliance” that perceives “compliance as a fundamental value,” and that senior leadership must actively and visibly participate in and promote compliance programs.

The Commissioner observed that trade associations may be “exposed to greater risks of anti-competitive behavior” through serving as “a forum that may encourage competitors to collaborate.” Therefore, “compliance programs are of the utmost importance to trade associations,” according to Pecman, and associations must engage in similar efforts to foster a culture of compliance as corporations. Pecman provided several pieces of advices for maintaining compliance, including (1) “develop a corporate compliance program, update it on a regular basis, train your employees to ensure they understand it and then, enforce it”; (2) “[a]void improper communications with competitors on prices, output, markets and customers, as well as on bids”; (3) “[a]void setting rules or standards that exclude, predate or discipline non-members or that otherwise harm competition in a market”; and (4) “seek legal advice.”

With respect to communication, Pecman described the Bureau’s recent efforts to increase transparency, including its Action Plan on Transparency announced in the spring, and its more recent draft bulletin on Communication during Inquiries. He observed that the agency wants “to receive input that will assist us in identifying potential areas where our communication efforts during an inquiry could be better,” and “to promote the development of a more transparent, efficient and responsive agency.”

Pecman then proceeded to discuss collaboration, and in particular the Bureau’s international cooperation efforts. He referred to the agency’s “deepening” ties with competition authorities in the United States, Europe, and Australia, as well as in developing agencies such as those in Latin America. He also described the Bureau’s engagement in international competition forums such as the Organization for Economic Cooperation and Development (OECD), the International Competition Network (ICN), and the International Consumer Protection and Enforcement Network (ICPEN). He pointed to benefits from this cooperation that included “increased predictability and certainty in developing policies, procedures and programs” and greater convergence and coordination in antitrust enforcement. He also noted the increase in the numbers of countries with competition law.

The final priority addressed by Pecman was “Canadians,” by which he meant “our goal of strengthening the Bureau to ensure that Canadian consumers and businesses continue to prosper in a competitive and innovative marketplace.”

“We will achieve this through focused competition law enforcement, increased advocacy and regulatory interventions promoting competitive markets, and enhanced collaboration and communication with stakeholders,” Pecman stated, and advocated for a “consumer first” approach to promoting competition.

Pecman closed his speech by noting the Bureau’s recent emphasis on competition advocacy, including its public consultation on such advocacy that closed last week. However, he emphasized that the Bureau in promoting advocacy “without ceding an inch where enforcement is concerned,” also noting the 22 cases the Bureau presently has before the courts or the Competition Tribunal and the more than 80 active, major enforcement investigations the agency is currently conducting.

News: Antitrust