Profiting From Risk Management and Compliance provides an important perspective on the liability of organizations. Topics include competition law, price-fixing, deceptive marketing, foreign corruption, insider trading, fraud, and sexual assault in the workplace.

One can gain important perspectives in the field of white-collar compliance including analysis of the new regime for deferred prosecution agreements which are at the vortex of the SNC-Lavalin affair. This text combines user-friendly risk management matrix diagrams and flow charts with analysis from various perspectives on risk by leading academics. The central thesis of the text is that higher risk control and better governance leads to higher rewards financially.

Current Updates:

The Budget Implementation Act, 2022 received royal assent on June 23, 2022. This Act significantly amends the Competition Act in the following areas:

New criminal provision for wage-fixing and no-poach agreements between employers
Increases the fines available under the criminal cartel provisions
Drip Pricing and misleading representations
Closing a loophole where dominant firms could escape scrutiny (Abuse of Dominance)
Private Access to the Competition Tribunal
Expanding the scope of the bureau’s evidence gathering powers
Addition of an anti-avoidance provision to pre-merger notification regime
Significant Increases in fines and administrative monetary penalties that reflect the revenue derived from illegal conduct
“Greenwashing” (promotion of eco-friendly attributes in a false or misleading way)
Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada contains “continuing violation AMPs” (each day constitutes a separate violation).

The 2022 Edition updates include the analysis of risk and coronavirus, including the impact of vaccines and development of the new Omicron subvariant; crypto currency market demonstrating the potential for an economic “wild west”; the “Freedom Convoy” of 2022 is discussed in the context of risk and the Emergencies Act; and the Cullen Commission’s final report, released in June of 2022, is reviewed.

Corporate compliance programmes will need a dedicated allocation of resources as the result of the 2022 Canadian Federal Budget which shows Canada’s commitment to the investigation and prosecution of financial crime including money laundering and tax evasion. The government’s new proposed measures include establishing a new “Canada Financial Crimes Agency”, which will become Canada’s lead enforcement agency in this area.

The emerging focus on environmental, social and governance (ESG) is canvassed and a new section added: “Governance for Government Entities”.

Case law updates:

The United States of America v. Elizabeth A. Holmes and Ramesh “Sunny” Balwani, Case 5:18-cr-00258 Filed 06/14/18 - Holmes was convicted in January of 2022 of four out of 11 counts of conspiracy and wire fraud.
Flying E Ranche Ltd. v. Attorney General of Canada, 2022 ONSC 601, 2022 CarswellOnt 1061, [2022] O.J. No. 474 (Ont. S.C.J.) - Deregulation and the mad cow problem in Canada is revisited.
Alberta Securities Commission v. Hennig, 2021 ABCA 411, 2021 CarswellAlta 3149, [2021] A.J. No. 1667 (Alta. C.A.) - The question of AMPs in the afterlife of bankruptcy was addressed by the Alberta Court of Appeal in late 2021. The Court held that AMPs for contraventions of securities laws related to misrepresentations are extinguished by a bankruptcy.
R. v. Brandt Industries Canada Ltd., 2022 SKPC 4, 2022 CarswellSask 34, [2022] S.J. No. 26 (Sask. Prov. Ct.) - Is an illustration of the complexities of the burden of proof with respect to the actus reus in a regulatory offences trial where there is circumstantial evidence.
Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315, 2022 CarswellOnt 5446, [2022] O.J. No. 1878 (Ont. C.A.) - This decision limits the potential scope of the de minimis defence in environmental cases as well as setting out the parameters for the testimony of expert employees of regulators (a common feature of criminal, quasi-criminal and regulatory proceedings).
R. v. Bondfield Construction Company Limited, 2022 ONCA 302, 2022 CarswellOnt 5016, [2022] O.J. No. 1775 (Ont. C.A.) – Holds that a generous interpretation of regulatory statutes is not limitless.
R. v. Brandt Industries Canada Ltd., 2022 SKPC 4, 2022 CarswellSask 34, [2022] S.J. No. 26 (Sask. Prov. Ct.) - The trend continues to focus on whether or not a due diligence system takes specific steps to mitigate the type of risk in issue.
R. v. YesUp eCommerce Solutions Inc. (2020), 171 W.C.B. (2d) 167, 2020 CarswellOnt 19731 (Ont. C.J.) – This Toronto-based computer server company became the first internet company in Canada to be convicted of child pornography charges for hosting such content online.
Kirloskar Technologies (P) Ltd. v. Best Theratronics Ltd., 2022 ONCA 331, 2022 CarswellOnt 5604 (Ont. C.A.) —The role of international enforcement in anti-corruption. The Court refused to recognize a public policy principle that would allow a party not to give contract payments to those who are only under a “cloud of suspicion for corrupt practices
Ernst & Young Inc. v. Aquino, 2022 ONCA 202, 2022 CarswellOnt 3170 (Ont. C.A.) - The civil test for fraud in the context of corporate civil liability which was revisited by the Ontario Court of Appeal.

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Profiting From Risk Management and Compliance

Profiting From Risk Management and Compliance