Canadian alternative compliance program

CASL also includes a number of categories of implied consent to send CEMs and exemptions from the application of the legislation altogether. The three core requirements of CASL are consent whether express or implied , sender identification information and a CASL-compliant unsubscribe mechanism.

In addition, the onus is on senders of CEMs to document consent or any category of implied consent or exemption being relied upon. In this regard, the CRTC, which is one of three federal agencies responsible for the administration and enforcement of CASL, has issued guidance on a number of occasions since the law came into force relating to compliance with the law.

An effective compliance program can also help businesses establish a due diligence defence in the event of a violation of CASL. Senior management should play an active role in compliance e. Despite this lack of awareness, the need to establish an effective anti-corruption compliance program should not be underestimated.

This need is expected to increase significantly in the future as CFPOA prosecutions become more frequent. The Canadian companies that are most vulnerable to a CFPOA violation are those that typically rely heavily on: a foreign government regulatory approvals, b joint venture or production sharing arrangements with foreign governments or state-run agencies, or c procurement agreements with foreign governments or state-run agencies.

For example, companies that deal with energy and natural resources such as mining are at risk because they typically operate in countries that have been found to have high levels of corruption; their activities usually require regulatory approval from the foreign government, and they may enter into joint venture or production sharing agreements with a foreign government or state-run agency.

Of course, any Canadian company that carries on business in a country having a high level of corruption can also be vulnerable to a CFPOA violation. This risk can be assessed by considering the Corruption Perception Index CPI for each country where the company carries on business.

Each year, Berlin-based Transparency International 2 assesses each country according to its perceived level of public sector corruption and assigns it a CPI score. A CPI score below 5. An effective anti-corruption compliance program will reduce the chances of a COFPA violation significantly. It may also reduce the likelihood of a criminal prosecution or limit the penalties that may be imposed if a violation is ultimately discovered.

The board of directors and management must also commit to allocating the necessary financial, human resource and infrastructure support to ensure that the Compliance Officer is able to fully implement the program. A thorough assessment of the potential risks faced by a company will allow it to properly design compliance strategies that address those risks. The Compliance Officer, in conjunction with management, must work to identify the key legal risks faced by the business.

The business can then tailor its compliance program to the specific risks faced and to design proportionate compliance measures to meet the most likely and most serious of those risks. A proportionate strategy provides the flexibility to incorporate specific approaches to compliance into a program based on, among other things, the size of the business, the nature of the industry, and the internal culture of the business.

The risks associated with other provisions of the Act, such as the abuse of dominance provisions, will depend upon the nature and size of the business. However, businesses must be cognizant that risks may change as their business evolves and their compliance programs will need to be sufficiently flexible to allow them to adapt. For example, potential risks can arise in new or unusual circumstances, such as when a business becomes a party to a proposed merger, or enters a new product or geographic market.

One approach to identifying risks is to determine who in the business is most likely to contravene the Acts. Footnote 25 Individuals who are likely to have contact with competitors, such as those in sales and marketing roles, as well as participants in trade association activities, and trade show and conference attendees, are at a higher risk of engaging in cartel activities than individuals in manufacturing or financial positions.

Similarly, everyone involved in making representations to the public to promote products or the interests of the business will need, at a minimum, guidance on the false and deceptive marketing provisions of the Act. Further, all employees should be made aware of the compliance program, as a disaffected employee may be inclined to take some form of action that puts the business at risk.

In those circumstances, tools that promote a positive employee environment throughout the organization, including in human resources, may help identify and prevent contraventions of the law. At the same time, businesses must recognize that the assignment of new duties to specific positions may alter the existing risk profile and therefore ensure that the mitigation strategy is sufficient to address any new risks.

Significant changes to the business activities can also affect risk profiles. A decision to enter a new product Footnote 27 or geographic market can change the risk calculation. A merger or a new marketing campaign can change or add new risks that need to be considered.

A corporate compliance program should be tailored to the operations of a business and establish internal controls that reflect its risk profile. The development and documentation of compliance policies and procedures tailored to the operations of a business are critical to the success of a program. Similarly, it could be made clear that employees are not to engage in discussions with competitors about pricing, allocating markets or customers, or limiting supply of any products, in any situation whether professional or social.

Moreover, policies and procedures can be put in place to ensure that all advertising, pricing and any other representations made to the public are not deceptive. Examples of such internal controls may include:. All staff should be promptly notified of any changes in the program, and the revised policies and procedures should be available to all employees and managers in a readily accessible, easy to understand format. Depending on the magnitude of the revisions, it would be advisable to promptly hold a training session focusing on these changes.

From a broader perspective, the company should encourage third parties, such as trade associations and those acting for the company, to address risks associated with their operations.

The objective of a compliance program is to prevent contraventions of the Act. All staff members need to understand the parameters of acceptable behavior as it applies to their business activities. Furthermore, given the unique characteristics of each business, the Bureau recognizes that a business requires flexibility in designing effective compliance training and communication programs.

Training and communications programs should demonstrate, in a practical way, how compliance policies and procedures affect daily activities. Footnote 30 Case studies drawn from circumstances faced by the business or the industry can be particularly effective, including those where contraventions resulted in discipline. Additional training and communications could include descriptions of prohibited conduct and the issuance of bulletins that discuss current compliance issues that may affect the operations of the business.

For example, a business can use small group seminars, manuals, email messages, online training or workshops to effectively educate staff.

For example, businesses can use blended methods where online training is used to communicate a base level of information to a broader group, with additional live training that is focused on the highest risk staff or is targeted at specific circumstances that certain employees may encounter. Regardless of the methods used, it is crucial to provide opportunities for extensive discussions and time for questions in training sessions. New appointments to these positions should be required to take training as part of assuming those duties.

Incumbent managers and employees should be required to renew their training on a periodic basis, depending upon the risks associated with the position. Management should also play an active role in delivering compliance messages to employees, reinforcing their support for the program, by taking the necessary compliance training themselves, sending emails supporting the compliance program and referring to the program during meetings, presentations and other speaking opportunities.

As such, management may wish to capitalize on the educational information from the Bureau to assist in training and reference examples of businesses and individuals that have been sanctioned for breaching the Act. Monitoring, verification and reporting mechanisms are vital to the success of any corporate compliance program. The most effective monitoring, verification and reporting procedures are those that also enable businesses to identify areas of risk, areas where additional specific training is required and areas where compliance issues may require new policies to be developed.

Evidence of such efforts may also support a due diligence defence, where applicable, should litigation arise. Footnote 35 Depending on the risks, periodic or continuous monitoring may be necessary. A business should take the opportunity to assess whether any of its internal or external practices may potentially contravene the Acts.

Complian ce verification practices are likely to vary from one business to another depending on the specific risks faced. They can also be used to examine the effective operation of the compliance program. A confidential, internal reporting procedure encourages staff to provide timely and reliable information regarding potential contraventions of the compliance program or the Acts that can be the basis for further investigation by the Compliance Officer. Managers, employees and others acting for the business must be able to obtain advice and raise concerns without fear of retaliation and without first having to raise issues with their superiors or supervisors.

The program shou ld clearly identify which actions require reporting, and when, how and to whom they should be reported. Anyone reporting a concern or cooperating in an investigation should be guaranteed the strongest of protections from retaliation by others in the business, including management. While an internal reporting mechanism is important, there may be situations where the use of an external reporting mechanism would be more appropriate. It should also state that disciplinary actions will be taken when a manager fails to take reasonable steps to prevent or detect misconduct within the requirements of the compliance program, or does not initiate appropriate disciplinary action.

Providing appropriate incentives for performing in accordance with the compliance program can also play an important role in fostering a culture of compliance for instance, compliance and active support of the program should be considered for the purposes of employee evaluations, promotions and bonuses.

Incentives work as effective tools for a business that wishes to promote compliance by employing concrete actions. All disciplinary actions and procedures involving specific individuals or groups in a business should be recorded, as proper documentation may be relevant in the context of a contravention of the Acts.

It is also necessary to monitor new developments regarding the Acts and business activities to determine their impact on the program. Evaluating a compliance program on a regular basis will ensure that it achieves its goal of promoting compliance. This also allows for an assessment of whether the program captures new or emerging risks. The Compliance Officer should be given the responsibility and authority to undertake this review and to make the necessary changes to the compliance program.

To evaluate the effectiveness of an existing program, the Compliance Officer could engage in the following:. Regular evaluation also allows an opportunity to refresh the training material and the course presentation styles to ensure that staff remains engaged during the training process; repeated training with the same material or approach can quickly become stale and managers and employees can lose interest.

Where resources are scarce, smaller companies could have updates disseminated to them collectively in the compliance training offered by a trade association. The review should extend to include the resources provided by the business to support the compliance program. However, the risks associated with a contravention of the Acts are sufficiently high that the board of directors and managers cannot ignore the benefits of a properly resourced, credible and effective compliance program.

Such a program will help to clarify the limits of legitimate business conduct and enhance the understanding of what is acceptable behavior, so that legitimate competitive practices can be vigorously pursued without contravening the law. The success of Canadian competition law is largely attributed to compliance by business and individuals.

Over and above the direct benefits to individual businesses, an effective compliance program can also make an important contribution to broader public knowledge and understanding of the Acts and the importance of free and fair competition.

Credible and effective compliance programs thus serve a public purpose and make an important contribution to ensuring that Canadian businesses and consumers prosper in a competitive and innovative marketplace. The Framework refers to Appendices such as a Training and Education Program, Procedures for Monitoring, Verification and Reporting and a Disciplinary Code to be drafted by businesses to suit their specific needs and the competition risks they may face.

The Framework is a flexible tool that should be adapted to the specific activities and resources of a particular business. The Bureau encourages any innovations that are designed to improve the effectiveness of the Framework. The Framework is offered for the purpose of providing guidance. Furthermore, the content of the Framework and accompanying Appendices are not intended to serve as legal advice. Readers should obtain independent legal advice when developing a corporate compliance program.

It includes practical advice concerning rules of conduct that will help our business anticipate and prevent contraventions before they occur, and detect and report contraventions if they do occur. This program is for use in our daily business by all employees. There may be instances where this program sets standards that are higher than those required by the law.

Nevertheless it is imperative that you follow the rules of conduct established by this program strictly. The [Compliance Officer or other appropriately titled position] may be con tacted at: [Contact Information]. Compliance with the law protects not only our business, but also each of us individually.

The purpose of Canadian competition law is to maintain and encourage effective competition in Canada. Effective competition benefits all of us by ensuring competitive prices, service and quality, and by encouraging greater innovation. The Acts maintain a competitive marketplace by prohibiting certain activities that might reduce or prevent competition or harm consumers.

A general description of each of these Acts is set out in the appendix attached to this program. For example, contraventions can:. No one who is employed by our company has the authority to engage in any conduct, or knowingly permit a subordinate to engage in any conduct, that contravenes the law or this program. Any manager or supervisor who fails to take reasonable steps to prevent or detect contraventions will also be subject to discipline. This is in addition to any criminal or civil liability that may be imposed on the individual as a result of a finding of the courts or the Competition Tribunal.

Such an acknowledgement will also be sought in the event that significant changes to the program take place. Management is accountable for promoting and complying with the law.

Reasonable measures will be taken to promptly notify all employees of such changes. Canadian competition law is contained in the Competition Act , a federal law governing most business conduct in Canada. It contains both criminal and civil provisions aimed at preventing certain advertising practices and sets out certain prohibitions on how competitors may deal with each other, as well as how businesses treat their suppliers and customers.

The Textile Labelling Act is a law relating to the labelling, sale, importation and advertising of consumer textile articles. It requires that textile articles bear accurate and meaningful labelling information to help consumers make informed purchasing decisions. The Textile Labelling Act prohibits false or misleading representations and sets out specifications for mandatory label information, such as the generic name of each fibre present and the dealer's full name and postal address or a CA identification number.

The Precious Metals Marking Act is a law relating to the marking of articles containing precious metals. It provides for uniform description and quality markings of articles made with gold, silver, platinum or palladium to help consumers make informed purchasing decisions. An effective anti-corruption compliance program will significantly reduce the chances of a CFPOA violation.

It may also reduce the likelihood of a criminal prosecution or limit the penalties that may be imposed if a violation is ultimately discovered. In the United States, the existence or absence of an effective anti-corruption compliance program carries considerable weight when the DOJ and SEC decide whether to bring criminal charges or an enforcement action against the company.

Even where the company had an ineffective program in place at the time of the violation, by taking subsequent steps to implement an effective anti-corruption compliance program, it may still receive more favourable treatment when penalties are ultimately assessed. The problem with establishing an anti-corruption compliance program in Canada is that few guidelines exist on how such a program might be implemented.

The only helpful Canadian guidance appears in the probation order issued against Calgary-based Niko Resources Ltd. The probation order requires Niko to adopt internal controls, policies, and procedures that will ensure the following:. These standards shall include policies governing: i gifts, ii hospitality, iii entertainment and expenses, iv customer travel, v political contributions, vi charitable donations and sponsorships, v facilitation payments, and vi solicitation and extortion.

In addition to any other direct reporting required by the company, these corporate officials must have direct reporting obligations to independent monitoring bodies including internal audit, the Board of Directors, or any appropriate committee of the Board of Directors.