Canadian COMPETITION LAW

May 27, 2013

In my morning media sweep, an interesting story about a new SNC-Lavalin internal whistleblower / amnesty program caught my eye.  In particular, reports this morning (see: here (Globe) and here (Post)) state that SNC is launching an internal “amnesty program” in an effort to root out corruption and competition law violations across its organization, and evidently also as a further step to quiet some months of media reporting.

According to SNC’s announcement:

“… it is launching a company-wide Amnesty Program to encourage current employees to report potential corruption and anti-competition matters in which they may have direct or indirect knowledge. The Amnesty Program is intended to assist SNC-Lavalin in its efforts to fully gather and assess the facts associated with corporate ethics matters in order to resolve them.

To be eligible for amnesty, an employee must file a request with SNC-Lavalin’s Chief Compliance Officer within the 90-day period between June 3 and August 31, 2013.  The Company guarantees that it will not make claims for damages or unilaterally terminate employees who voluntarily, truthfully and fully report violations of its Code of Ethics and Business Conduct during this period.  The offer does not extend to executives in the Company’s Office of the President or Management Committee groups, or anyone who directly profited from an ethical violation.

To SNC-Lavalin’s knowledge, this is the first time that a Canadian company has initiated an amnesty program. Such programs are strongly encouraged by the international ethics community in situations like the one SNC-Lavalin is facing.”

While a laudable initiative that is being described by SNC as the first such move in the history of corporate Canada, I found this development slightly puzzling given that, at least on the competition law side, Canadian competition law already includes express whistleblower protections under the Competition Act and corporate compliance programs should include reporting mechanisms and whistleblower protection information for employees.

The Competition Bureau’s Corporate Compliance Programs Bulletin recommends that companies include monitoring, auditing and reporting mechanisms as one of the five essential elements of an effective and credible competition law compliance program and also recommends that companies educate employees about the whistleblower protections of the Competition Act (and the potential consequences of corporate retaliation).

Section 66.1 of the Competition Act provides that any person with “reasonable grounds” to believe that a person has committed a competition law offence may notify the Bureau and request that his/her identity be kept confidential.  Section 66.2 further provides that no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee (or deny an employee a benefit of employment) based on the fact that the employee, acting in good faith and on the basis of reasonable belief: (i) reported an offence committed by the employer or other person; (ii) refused to do anything that is an offence under the Competition Act; or (iii) took steps to avoid an offence under the Competition Act.

It’s worth pointing out, though, that reporting (as opposed to engaging) in illegal activities can be different matters, with compliance programs commonly giving companies the right to impose discipline for violating a program, such as dismissal (e.g., through employee certification letters).

For more about Canadian competition law compliance see: competition compliance programs.

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