Competition Law Compliance

9:00 – 9:15 a.m.: Directors’ Welcome and Introduction to Certificate 

Antonio Di Domenico, Fasken Martineau DuMoulin LLP
Katherine Rydel, Competition Bureau Legal Services, Department of Justice Canada

9:15 – 9:45 a.m.: Student Introductions

An opportunity to meet the students in your cohort that you will be learning with over the next few weeks. Each student will briefly introduce themselves and the reason for taking the course.

Antonio Di Domenico, Fasken Martineau DuMoulin LLP
Katherine Rydel, Department of Justice Canada

9:45 a.m. – 12:00 p.m. (with 15-min break around 10:30 a.m.): Understanding Competition Law in Canada

The program kicks off with a thorough and in-depth review of the legal, economic, and administrative features of competition law and enforcement, with plenty of opportunity for Q & A and discussion.

• What is competition law and why do we have these laws?
• The purpose of the Competition Act and an overview of key sections
• What is competition policy trying to achieve?
• Different players and roles
• Public vs. Private enforcement
  • Role of the Bureau vs courts/tribunals
  • Private litigation

• Amendments – where we are and where we’re going
• What are politicians in other jurisdictions saying about competition laws? Canada vs US vs Europe
• How Canada fits into the global competition landscape

Antonio Di Domenico, Fasken Martineau DuMoulin LLP

12:00 – 1:00 p.m.: Lunch 

1:00 – 4:15 p.m. (with 15-min break around 2:30 p.m.): The Competition Framework in Canada

The key economic underpinnings of the Canadian framework, including:

• Product market definition
• Geographic market definition
• Fundamentals of “substantial lessening or prevention of competition” (“SLPC”)
• How to assess market power

Renée Duplantis, Vice President, Charles River Associates

9:00 – 10:00 a.m.: Competition Act Offences

What constitutes unlawful behaviour under the Act?:

• General overview of offences under the Act
• Who prosecutes these offences? Simon Bessette, Major Case Director, Competition Bureau

10:00 – 10:15 a.m.: Break 

10:15 a.m. – 12:00 p.m.: Criminal Offences

How do offences under the Criminal Code intersect with competition law? A survey of corrupt practices that undermine fair competition, covering:

• General overview
• Bid rigging
• Pyramid selling
• Immunity and leniency applications
• Conspiracy
• HR offences: wage fixing, no poach provisions

Simon Bessette, Major Case Director, Competition Bureau
Nikiforos Iatrou, McCarthy Tetrault LLP

12:00 – 1:00 p.m.: Lunch

1:00 – 3:00 p.m.: Private Enforcement

How private parties can enforce competition laws through civil actions and class proceedings and how individuals and businesses can seek damages for anti-competitive conduct:

• Business to business (B2B) disputes
• Representative style/class actions

Emrys Davis, Bennett Jones LLP

3:00 – 3:15 p.m.: Break

3:15 – 4:30 p.m.: Competitor Collaboration

Not all collaboration between competitors is illegal. Examine the boundaries of lawful cooperation and how to avoid crossing the line into anti-competitive behaviour:

• What are competitor collaborations?
• Section 90.1 of the Competition Act
• The Bureau’s guidelines on competitor collaboration

Huy Do, Fasken Martineau DuMoulin LLP

9:00 – 9:45 a.m.: Preliminary Considerations in Transactions

Module 3 begins by delving into key elements that counsel must contemplate when planning transactions:

• Risk allocation/analysis in contracts
• Regulatory risk
• Timing
• Gun jumping
• Purchase agreements Kaleigh Kuzma, Osler, Hoskin & Harcourt LLP

9:45 – 10:45 a.m.: Mergers

Get valuable insight into the Bureau’s merger assessment and enforcement procedures, including:

• Understanding mergers
• Notification thresholds
• General analysis with examples (e.g. the Rogers/Shaw merger)

Jonathan Hood, Senior Counsel, Competition Bureau Legal Services, Department of Justice

10:45 – 11:00 a.m.: Break  

11:00 a.m. – 12:00 p.m.: Abuse of Dominance and Exclusivity Agreements

How is market power managed? The nature of market power and the pitfalls of abusing market dominance will be examined, with a focus on:

• Section 90.1 of the Act
• Understanding abuse of dominance
• Vertical arrangements

Daniel Jensen, Major Case Director, Monopolistic Practices Branch, Competition Bureau

12:00 – 1:00 p.m.: Lunch

1:00 – 2:30 p.m.: Abuse of Dominance Case Study

Reinforce your learning through practical application with a case study.

Daniel Jensen, Major Case Director, Monopolistic Practices Branch, Competition Bureau

2:30 – 2:45 p.m.: Break  

2:45 – 4:45 p.m.: Section 11 Orders and Market Studies

Section 11 Orders are essential enforcement tools used by the Bureau. Learn about the general process, as well as recent amendments providing significant new powers to compel large volumes of information in support of “market studies”:

• Understanding Section 11 orders and process
• How to make process as efficient and transparent as possible
  • Importance of pre- and post- application dialogue
  • Commissioner preferences

Katherine Rydel, Counsel, Competition Bureau Legal Services, Department of Justice Canada
Dan Myers, Director, Global Consulting Practice, TransPerfect

9:00 – 10:00 a.m.: Misleading Advertising – General

Advertising is found everywhere in daily life, but it must be used carefully, and is strictly regulated under the Act. We delve into the rules governing advertising and marketing practices, examining current hotspots:

• General analytical framework
  • Drip pricing
• Social media guidelines
• Environmental claims/greenwashing
• Contests: what’s attracting attention
• Testimonials
• Performance Claims (proper & adequate testing)

Josephine Palumbo, Deputy Commissioner of Competition, Deceptive Marketing Practices Directorate

10:00 – 10:15 a.m.: Break  

10:15 – 11:30 a.m.: Adequate and Proper Test Case Study Exercise

Reinforce your learning through practical application in a case study.

Adam Zimmerman, Senior Competition Law Officer, Competition Bureau

11:30 a.m. – 12:15 p.m.: Keynote Speech by Commissioner of Competition

Join the head of Canada’s Competition Bureau for an engaging and informative discussion about the Bureau’s enforcement priorities and collaborative work with domestic and international stakeholders in promoting competition.

Matthew Boswell, Commissioner of Competition

12:15 – 1:00 p.m.: Lunch

1:00 – 2:30 p.m.: Misleading Advertising – Ordinary Selling Price (“OSP”) and other provisions

Continuing with advertising and marketing rules and enforcement, this session will look at the sundry provisions contained in the Act:

• How to calculate the volume and time tests
• Good faith requirements
• Reasonable Quantities
• Bait & Switch – Exceptions + remedies (correction notices/rainchecks/products of equal/greater value)

Derek Leschinsky, Senior Counsel, Competition Bureau Legal Services, Department of Justice

2:30 – 2:45 p.m.: Break

2:45 – 4:15 p.m.: Wage fixing/no poaching Case Study (Workshop #1)

Returning to the topic of offences under the Act, we examine the new criminal wage fixing and no poach provisions that came into effect in 2023. The session will include a case study exercise, with small breakout group work followed by a large group debrief.

Professor Jennifer Quaid, Associate Professor, Faculty of Law, University of Ottawa

4:30 to 6:30 p.m.: NETWORKING EVENT

Those attending Module 4 in-person are invited to join faculty and other program delegates for a meet-and-greet at OsgoodePD’s hub in downtown Toronto.

9:00 – 9:45 a.m.: Introduction to Compliance Programs

Putting it all together from the first four modules, attention now turns to Compliance programs, beginning with a general overview before delving into specific considerations.

• What is a compliance program?
• The importance of compliance programs and objectives
• Preliminary considerations
  • Who in your organization is most at risk?
  • Preliminary steps for compliance
  • Identifying stakeholders, understanding business, identifying risks and who to contact

Majid Charania, Director of Compliance, Competition Bureau

9:45 – 10:15 a.m.: The Bureau’s Perspective on Compliance Programs

• Bureau guidelines
• What kind of compliance program would the Bureau want to see?

Majid Charania, Director of Compliance, Competition Bureau

10:15 – 10:30 a.m.: Break  

10:30 – 11 a.m.: The Bureau’s Perspective on Compliance Programs, continued

Majid Charania, Director of Compliance, Competition Bureau

11:00 a.m.: Key Components of a Successful Compliance Program

What does a successful compliance program look like?

• Key components
• Personnel requirements
• 3 Lines of Defence (3LOD model)
  • First line: front-line operations of the organization (business units, departments, and individuals directly responsible for managing and executing processes and activities that generate risk)
  • Second line: risk management and compliance functions
  • Third line: internal audit function

• How to develop and implement (best practices)
• Culture of compliance
• Discipline for non-compliance

Susan Hutton, Senior Counsel, Stikeman Elliott LLP
Ken Jull, Partner, Gardiner Roberts LLP

12:00 – 1:00 p.m.: Lunch 

1:00 – 2:15 p.m.: Key Components of a Successful Compliance Program, continued

A continuation of the discussion on the components of a successful compliance program, followed by an opportunity to synthesize what you’ve learned with a 30-minute Q&A session on compliance.

Susan Hutton, Senior Counsel, Stikeman Elliott LLP
Ken Jull, Partner, Gardiner Roberts LLP

2:15 – 2:30 p.m.: Break  

2:30 – 4:30 p.m.: Compliance Programs Case Study (Workshop #2)

The program will conclude with a hands-on, practical workshop on developing effective compliance programs, enabling you to apply the knowledge and information gained over the five modules to real world situations, including the following components:

• Breakdown of law, working out controls to prevent risks, focusing on teams that are negatively impacted
• Policy documents working out effective controls
• Looking at org charts and determine risks associated with different sections of Act – identify who is first line of defence?
• Case studies of ideal compliance programs
• Monitoring/auditing

Majid Charania, Director of Compliance, Competition Bureau
Susan Hutton, Senior Counsel, Stikeman Elliott LLP
Ken Jull, Partner, Gardiner Roberts LLP

4:30 – 4:45 p.m.: Program Wrap-Up

Antonio Di Domenico, Fasken Martineau DuMoulin LLP
Katherine Rydel, Department of Justice Canada