White Collar Crime - The Concept of Due Diligence and its Application to Corporate Liability
/White Collar Crime - The Concept of Due Diligence and its Application to Corporate Liability
Introduction
In “Beyond R. v. Sault Ste. Marie: the creation and Expansion of Strict Liability and the Due Diligence Defence”, (1992) 30 Alta L. Rev. 1233, N.J. Strantz argues that due diligence encourages corporations to be proactively compliant, and, for example, develop corporate policies and compliance programs. Despite such programs being enacted, however, constantly evolving case-law has paved the way for illustrating what does and does not constitute sufficiency in the totality of the circumstances for the application of the due diligence defense. It is true that, for the most part, due diligence encouraged some levels of corporate responsibility. Unfortunately, as will be shown, sometimes the bottom line wins out in favor of short-term gain when considering proactive compliance. As well, occasionally and despite their best intentions, the corporate policy programs directors put in place may either fail, or may not necessarily rise to the level of due diligence required by the courts.
Due Diligence & Public Welfare: Strict Liability Offences
Public welfare offences, prior to the late 1970s, were deemed to be absolute liability offences. This meant that the offender could not resort to a lack of intent as a defense in such charges.[1] Strict liability offences were deemed to be a “halfway-house between fault-based liability… [and] absolute liability”, unlike the former which needs mens-rea to be proven or the latter where the actus reus is all that is required[2]. The application of “strict liability” to public welfare offences, a decision that was called “progressive” at the time, gave the courts the ability to choose this middle ground in which individuals who were not morally blameworthy could still have the protection of the justice system without allowing those who intentionally broke the law to slip by[3]. As such by showing that, on a balance of probabilities, “all reasonable steps to avoid the particular event”[4] had been taken, a party could defend themselves by carry over the burden of proof onto themselves in a strict liability case and showing that they had done their ‘due diligence’[5]. Often equated with “reasonable care”, the defense of due diligence does not go as far as to force an individual to “risk life and limb”, but to act reasonably instead, which includes for example allowing a “reasonably small quantity of a deleterious substance” to be deposited rather than risking a life to avoid such a scenario[6].
Compliance Programs – Importance and Benefits
As per the September 2010 Corporate Compliance Program Bulletin released by the Competition Bureau, given the responsibility to act legally, compliance programs are put into place so as to avoid the potential headache of the “legal, economic and reputational risks of non-compliance”[7]. Non-compliance with the law (be it the Competition Act, or the Criminal Code) can result in significant penalties, ranging from fines to administrative monetary penalties[8]. Other outcomes of non-compliance may include “negative publicity, loss of management time, significant legal costs and a prohibition from participating in government bidding processes.”[9] As such, the risk-management function of a compliance program is that it can help “detect at an early stage inadvertent or unauthorized actions to identify contraventions committed”[10].
Case Studies: Due Diligence and Proactive Corporate Policies in Environmental Protection
R. v. Imperial Oil Ltd., 2000 BCCA 553, [2000] B.C.J. No. 2031
The first case to be discussed is the case of R. v. Imperial Oil Ltd., 2000 BCCA 553, [2000] B.C.J. No. 2031. This British Columbia Court of Appeal case involved an accusation that Imperial Oil’s Ioco Refinery discharged a toxic substance - methylcyclopentadienyl manganese tricarbonyl (MMT) with a concentration greater than that permitted. This substance, in use since the 1970s, was an additive in gasoline that increased the octane levels of the finished product; effectively an anti-knock compound.
The company, Imperial Oil Ltd. claimed that they exercised their due diligence. At the trial level it was held that their compliance and responsibility program titled “Haz-Ops” existed “for the purpose of finding situations such as this one and remedying them before a problem could erupt”[11]. This program, though unsuccessful in its attempt to remedy the MMT problem, had shown promise in the past, and was found that it would have been “very likely that it would have done so within one or two years”[12] as the effluent that had discharged the substance was becoming cleaner each year.
Imperial Oil had relied on the company that manufactured MMT (a multinational corporation with more than adequate testing means) that had not informed them of the toxic nature of the compound. However, despite all this, Imperial Oil still had in place testing mechanisms that operated more frequently than required by their permit. This testing mechanism was effective in identifying the toxic levels in the water, and steps were subsequently taken promptly by Imperial Oil to remedy the situation before damage could be done to the environment[13].
However, despite their attempts at proactive compliance and their creation of corporate policies and compliance programs, on appeal it was held that Imperial Oil did not execute their due diligence: they should have tested MMT independently and not relied on external advice as it was reasonably foreseeable that this compound was toxic to fish[14]. Justice Finch, speaking for the majority, held that the focus of the due diligence test is on the particular, not the general – and as such a program such as “Haz-Ops” that failed to prevent any foreseeable harm in this scenario was outside the scope of the due diligence defense[15]. Reaffirming the original conviction, Justice Finch held that:
“It is not an answer for the appellant to say that it had in general a good safety system, that it tested more frequently than necessary, and that it had a program which would likely have detected the hazard within the near future. Because the appellant did not identify the substance as toxic, it was not a priority within the risk assessment program.”[16]
Interestingly, in this case the dissent found that the trial judge had not erred in stating that the creation and use of the “Haz-Ops” program, despite its lack of success in this one scenario, was enough for a reasonable standard of care; to conclude otherwise, Justice Newbury held, would be to be applying a “standard of perfection” to the due diligence defense[17].
R. v. Pacifica Papers Inc., 2002 BCPC 265, [2002] B.C.J. No. 1639
The case of R. v. Pacifica Papers Inc., addresses the issue of a company being charged for the improper conduct of one of the employees of a company they had subcontracted a service out to. The charges against the Fisheries Act were laid due to a large amount of water containing leachate (a substance that may prove toxic to wildlife as it often contains high quantities of organic contaminants as well as large quantities of ammonia) having spilled over into the nearby road and creek.
In this scenario, the supervisor from Pacifica Papers, Mr. Grist, met with representatives of their subcontractor, Copcan Contracting, on several occasions. On the first occasion, Mr. Grist attended the proposed digging site in person to discuss “digging permits, the steam lines, and the water lines”[18]. During this meeting with the superintendent of Copcan Contract, Mr. Harold Robinson, Mr. Grist provided oral instructions on the correct course of action should water be encountered (namely that the water should be pumped onto the hog fuel pile, as that would act as a giant sponge and prevent any spillage. On June 8, 1995, Mr. Grist attended the site in person again, meeting with the contractor this time. Noticing a necessity to remove water from a pit, Mr. Grist left the area so as to secure a pump for the water. His instructions that the water should be pumped only on the hog fuel remained unchanged[19].
Procedure in place in the case of a spill was in effect (known as the spill policy) at the time of the incident.[20] Moreover, the company also had in place an environmental management program and wastewater disposal guidelines[21]. The commitment to these programs went even beyond mere words; in the years of 1996, 1997 and 1998, Pacifica Papers Inc. had spent five million dollars each year on their various methods of proactive compliance with environmental programs and associated equipment[22]. With regards to the specific occurrence, the pile of hog fuel was being constantly turned over each day so as to maximize the ability for it to absorb any reasonable quantity of water that would have been pumped onto it.
Despite finding that no actus reus transpired (there was no proof of any wildlife having been adversely affected), the court still considered the viability of defense of due diligence[23]. The finding of the court, given the totality of the circumstances, was that Pacifica Papers acted with due diligence given their familiarity with the Environmental Management Program, as well as the Waste Water Disposal Guidelines. Moreover, it was also found that Pacific Papers and their employee could not
“…have reasonably foreseen that Copcan's employees would divert the stream of water onto the roadway, contrary to his explicit and clear instruction that it was to be pumped directly onto the hog fuel pile, particularly in view of the fact that they initially complied with his instruction and then moved the hose without consulting with him or anyone else at Pacifica”[24].
R. v. BHP Diamonds Inc., 2002 NWTSC 74, [2002] N.W.T.J. No. 91
The case of BHP Diamonds revolves around the depositing (known or unknown) of a noxious substance (that resulted from their process of mining diamonds) in a pool of water that contained fish, therefore causing harm to the natural environment of the fish and other wildlife, contrary to the Fisheries Act.
The territory that surrounded the diamond mine and the mineral claim block that BHP Diamonds was in charge of in the Northwest Territories was surrounded by permafrost, as well as several lakes linked together by various streams and rivers. Under these lakes were discovered “several diamond-bearing kimberlite pipes”, near the Koala watershed.[25] Access to these pipes required several steps to be taken by BHP Diamonds, including a draining of the surface lakes, as well as subsequent mining. The process of dewatering as well as the collateral surface area damage associated with the mining operation (it was estimated that a 500 person work-force would be required[26]) resulted in the destruction of significant fish and wildlife habitat.
As part of the de-watering process, a 3.5km ditch (known as the “Panda Diversion Channel” [PDC][27]) was constructed to allow water to bypass the affected areas while still flowing between the neighboring lakes[28]. At trial, the difficulties and uniqueness of the construction of the channel was duly acknowledged – over 100,000m3 was to be excavated, some areas were solid granite, other areas were designed to enhance the habitat of the fish travelling between lakes, a very slight decline (0.1%) so that even the weakest fish could cross the channel, proper control of the erosion based on the angle of the sides of the channel, etc.[29] Moreover, until the channel settled, it was understood by all parties involved (BHP Diamonds and the multitude of regulators) that sediment would inevitably be carried along downstream[30].
Care was consistently taken to ensure that despite the “drilling, blasting and excavation”, there would be as little “thermal degradation of permafrost” as possible[31]. Despite unintended thermal degradation of permafrost, at trial it was found that the reasons behind this were unknown and not linked to any specific activity by BHP Diamonds (such as “operating heavy equipment over that area of the lowlands”). The main issue at trial was the unexpectedly large amount of sediment and other suspended substances in water that were carried into the lakes as a result of the PDC, and the damaging effect it had on the fish and their habitat[32]. BHP Diamonds countered by stating that they had authorization to damage the environment for their mining purposes directly from the Minister of Fisheries and Oceans – this authorization became a point of contention as BHP Diamonds stated that it applied to the undertaking as a whole, whereas the crown believed that it applied solely to the 12 named lakes and nothing more[33].
Deciding in favor of BHP Diamonds on the subject of the authorization on a balance of probabilities[34], the defense of “due diligence” was also considered. Citing Imperial Oil, the court analyzed the actions of BHP Diamonds in the particular circumstances, and did not over-emphasize proactive company policy already in place with regards to environmental protection. It was held that certain events, such as the “permafrost degradation of the Grizzly Lowlands area” could not have been reasonably been foreseen – and as such the consequences of the thawing of the ‘not-directly-adjacent’ permafrost (namely a large increase in sedimentary runoff) could not have been avoided through “precautionary steps”[35]. The ever-present sphere of corporate responsibility exhibited by BHP Diamonds, either through overarching policy or specific instances, is best summed up by the following single paragraph from the case:
“I find, on balance, that there was a climate of environmental awareness surrounding BHP's mining development project generally and the PDC project specifically. The evidence reflects, generally, a conscientious attitude by BHP towards the environment. Although BHP's report card does not merit an A+, it certainly deserves a passing grade. Before, during and after the EARP hearing process, the company displayed an acknowledgement of the fragility of the pristine Arctic environment. A small example of a company policy related to the PDC construction project was one which restricted vehicles and equipment from being driven onto the tundra. Company personnel and contractors all testified as to the company's insistence on adherence to its environmental policies. As one of the contractors put it, you were constantly reminded' of proper environmental practices.”[36]
Not surprisingly, Justice Richards found in favor of BHP Diamonds, given the totality of the evidence. This is yet another example of corporate policy and compliance programs being developed in an attempt to be proactively compliant with legislation – which most certainly played a very significant role in shaping the environmentally conscious conduct of BHP Diamonds during the excavation.
R. v. Bata Industries Ltd., [1992] O.J. No. 236, C.C.C. (3d) 394 p
Still on the subject of environmental protection, the case of Bata Industries Ltd. is a classic example of what can happen when proactive corporate policies are either not sufficient or not followed by the corporation. Despite the trial judge finding against Bata Industries Ltd. and most of the directors, this case is still an example of the necessity to have in place proactive corporate policies and compliance programs; as it will be shown, the fact that the CEO, Thomas G. Bata, had created and distributed such proactive policies to his factories world-wide was enough to active the due diligence on his behalf. His corporation and the directors that did not follow the directive, unfortunately, were not as lucky…
On August 1, 1989, officers from the Ontario Ministry of the Environment attended at the location of Bata Industries, in an attempt to make contact with the directors of the factory. However, upon discovering that the plant in question was closed and that all of the 700 workers were missing, the officers decided to enter the premises and find the business bureau to see what was happening.[37] Upon attempting to leave, they noticed a waste storage facility, where they discovered many barrels that contained chemical compounds that were either not properly secured, or rusting, or open to the air, or overflowing and on the floor[38]. Charges were laid against the company under the Ontario Water Resources Act and the Environmental Protection Act. These charges are as follows:
“(1) operating a waste management system contrary to Sec. 27(a) of the E.P.A.
(2) being a generator of waste . . . failing to submit a report contrary to Sec. 15(10), Regulation 309, E.P.A.
(3) causing or permitting a discharge of liquid industrial waste, etc. contrary to Sec. 16(1), O.W.R.A.
(4) Failing to notify forthwith of causing the discharge contrary to Sec. 16(2), O.W.R.A.
(5) causing or permitting a discharge . . . with the natural environment . . . adverse affect, contrary to Sec. 13(1), E.P.A.
(6) Failing to notify forthwith of causing a discharge contrary to Sec. 14(1), E.P.A.[39]”
Moreover, several directors of Bata Industries, as well as the CEO (Thomas G. Bata), were also charged with “failing to take all responsible care to prevent a discharge” contrary to s.75(1) of the OWRA and s.147a of the EPA[40].
As aggravating factors in this case, the chemicals that were being stored at the Bata Industries factory were rather dangerous: they included possible carcinogens such as benzene, vinyl chloride, and methylene chlorid[41]. Other substances found include toluene, which is a known depressant of the central nervous system[42]. The defense argued that no actus reus was committed as there were no wells in the area; and any possible seepage would therefore have no effect. However, this was countered rather poignantly by Justice Ormston when he compared the introduction of these substances to the water system as “death […] from a thousand wounds”[43] by writing: “To state that there are not any wells presently drawing on that ground water misses the mark. It would be more accurate to state now there can never be any wells to draw on that ground water.”[44] Finding that the actus reus of ‘permitting a discharge’ contrary to s. 16(1) of the OWRA had been established beyond a reasonable doubt, Justice Ormston turned to consider the defense of due diligence[45].
Unfortunately, the chain of actions of Bata Industries did not inspire confidence in meeting the standard of reasonable care brought up in R. v. Saulte Ste. Marie for the defense of due diligence. Going back as far as 1983, six years before the inspection that brought the charges, the then union safety officer had described the storage of the chemicals as being in “45 gallon drums, 5 gallon pails, whichever”, with conditions of the containers being significantly sub-par: they were “badly corroded with holes in the top of them […] some open pails with no covers, residue on the skids and on the ground”[46]. To make matters worse, the labeling on the drums was not adequate – some labels were unreadable, whereas the older labels were inaccurate. The end result was that one could not be sure what each drum specifically contained[47].
The first material step in attempting to dispose of the chemicals happened in 1986, three years after the fact, in which representatives from Bata Industries attempted to contact and subsequently secure a contract with a waste disposal company. Upon inspection of the property, however, the first company to be contacted was hesitant to attempt disposal, as they did not believe that the containers could be transported given their deteriorated condition[48]. On July 4 1986, the CEO of Bata Industries, Thomas G. Bata, released his Technical Advisory Circular (TAC) 298 that updated corporate policy and addressed potential issues of environmental problems. This “very comprehensive document” included a section directed towards proactive policy and compliance strategies with regards to minimizing risk associated with environmental exposure[49]. Only after this document was issued did discussions on the removal of the waste truly begin to move forward.
Unfortunately the negotiation of price with regards to the disposal of the waste took a front-seat to the actual disposal. The first quote for the removal of the waste was obtained in 1987, for $56,000[50]. Unsatisfied with this dollar amount, the then General Manager of Bata Industries, Mr. Weston, delegated the task of finding a lower quote to an employee. By late 1987, a lesser quote of $28,000 was secured[51]. By the autumn of 1988, Mr. Weston was advised that the contractor could not honor their quote[52]. Still the waste remained undisposed of. By August 1, 1989, when the officers from the OME visited, the issue was still unresolved. Suffice it to say that this history shows why Bata Industries did not meet the standard required for reasonable care in the due diligence defense. With regards to the directors that were charged and subsequently found guilty of failing to take reasonable care to prevent a discharge, only Thomas G. Bata was found to have acted with due diligence by releasing policy directive TAC 298:
“In short, he was aware of his environmental responsibilities and had written directions to that effect in TAC 298. He did personally review the operation when he was on site and did not allow himself to be wilfully blind or orchestrated in his movements. He responded to the matters that were brought to his attention promptly and appropriately. He had placed an experienced director on site and was entitled in the circumstances to assume that Mr. Weston was addressing the environmental concerns. He was entitled to assume that his on-site manager/director would bring to his attention any problem as Mr. Riden had done. He was entitled to rely upon his system as evidenced by TAC 298 unless he became aware the system was defective.”[53]
As such, this case is also an example of the advantages of being proactively compliant, and developing corporate policies and compliance programs. Though the corporation was held liable for failing to follow the directives, Mr. Bata was not. Unlike the rest of the directors, his attempt to set a comprehensive method of operation that would minimize risk to the environment prevented crown from securing a conviction against him[54].
R. v. Syncrude Canada Ltd., 2010 ABPC 229, [2010] A.J. No. 730
The case of Syncrude Canada Ltd., also colloquially referred to as the case of the 1600 dead ducks, is a prime example of the damages caused by not having in place programs and corporate policies that are sufficiently proactive. Syncrude was charged with “failing to store a hazardous substance in a manner that ensured it did not come into contact with animals” contrary to s.155 of Alberta’s Environmental Protection and Enhancement Act and with “depositing a harmful substance to migratory birds in an area frequented by migratory birds” contrary to s. 5.1(1) of Canada’s Migratory Birds Convention Act[55].
The issue at trial was that Syncrude, as a byproduct of their Aurora tar sands operation near Fort McMury, allowed chemicals known as ‘trailings’ to enter a contained pond of water about the size of 640 football fields[56]. These trailings included bitumen and sand, and would often lump together[57]. When introduced to the pond, the tailings would be warmer than the existing water (being still heated from the extraction process), causing the surface ice to melt. Moreover, they would float on the surface for a while before they sank. Unfortunately, these chemicals had a property that ensnared the birds that would land in the pool during their migration, and when the mixture eventually sank to the bottom of the lake it dragged the tarred birds underneath the surface with it[58].
The area that Syncrude operated in was located in the direct path of several migratory species during their spring travel northward, an area that court found was crucial to the patterns: “In Northern Alberta, waterfowl spring migration is closely tied to the break-up of water bodies because most species of waterfowl depend on water for rest and foraging stopovers.”[59] When birds land in the pond and are covered in the bitumen on the surface, those who are not dragged to the bottom by the sinking tar mat suffer significant health issues: “As bitumen contamination increases, birds lose buoyancy and the insulating effect of feathers. There is a loss of the feathers' waterproofing, leading to hypothermia or drowning. Birds will lose their ability to fly. A heavily oiled bird will almost certainly die.”[60] In 2008, the breakup of ice on nearby bodies of water did not occur until early May[61]; as such trailing pool was seen as a much needed rest area of the migrating fowl that being arriving starting in late March.
In considering a due diligence defense, the court analyzed the conduct of Syncrude with regards to the policies in place, as well as the specifics of what transpired with regards to the implementation of deterrence mechanisms for migrating waterfowl. Syncrude needed to demonstrate that it reasonable care by “establishing a proper system to prevent the commission of the offence” and that it took reasonable steps to “ensure the effective operation of the system”[62].
Since the 1970s, Sycrude has been performing research into bird deterrence programs for their oil sand operations. Such programs were claimed to be in effect at a “full weekly coverage” level in 2007/2008; however statistics show that the countermeasures in effect (scare cannons, effigys, rafts, boats and employees) had significantly declined in number since the late 1990s; staff was reduced from 14 to 8, scare cannons available were reduced to 67 from 150, effigys were reduced from 27 from 100, rafts were reduced to 17 from 45[63]. The density of the cannons also decreased from one cannon every 200m of shoreline to one cannon every 750m[64]. The Waterfowl Protection Plan of 2007 indicated that booms were used to prevent birds from landing on the bitumen mat; however employees stated that this practice had been discontinued in 2005 as the mat would usually sink by the time the boom was setup – and so the problem solved itself in essence[65]. Not only was there no predefined schedule for the deployment of countermeasures, but also the few employees that were left after the cuts were trained only in the operation of the equipment, and not in “bird behavior or deterrence”[66]. In the spring of 2008, the team was reduced further down to 7 individuals, and shifts only covered Monday through Thursday and employment was also sporadic; the team was scheduled only from April 14 to 17, and April 21 to 24[67]. The deployment of the sound cannons also proved problematic – the reduction in staffing was also accompanied by a reduction in equipment as the trucks available to the team had been reduced from 4 to 1[68]. By comparison, other nearby mining corporations began their placement of bird deterrence countermeasures on March 24, with land cannon setup occurring on April 3[69]. Problems with the lack of sound cannons and bird migration onto the pool area was noticed as early as April 3 at Syncrude, with emails going out on April 17 informing supervisors of birds still landing on the basin due to a lack of countermeasures[70].
Analyzing the facts of the case, presiding Justice Tjosvold was not convinced that Syncrude acted reasonably or with due diligence. It was held that the existing program Syncrude had in place was insufficient, and was also not followed: “While Syncrude had documents that set out procedures for bird deterrence, the documents are not in any way comprehensive and do not reflect the complexity of effective bird deterrence.”[71]Densities of maximum 240m between cannons were called for in the documentation, yet were not followed. An activation date of April 1 was claimed in the documentation, yet was not followed in practice[72]. Alternate practices by competing corporations in the area helped show that the conduct of Syncrude was not reasonable. As a result of not being proactively compliant and failing to implement and develop thorough corporate policies and compliance programs, Syncrude’s attempt at a due diligence defense failed and they were found guilty on both counts.
Conclusion
Corporate responsibility programs exist so that corporations can reduce their liability exposure. A proactive approach to policy making and implementation can save on the negative consequences associated with either a finding a guilt at trial, or even a trial in the first place. Fines and even imprisonment of directors can indirectly result from not having compliance programs. Moreover, the hidden costs of not developing proactive compliance programs include significant loss of time, and massive costs of possible post-fact implementation of proactive corporate policy – which may include a major restructuring of assets to bring them into compliance with environmental legislation or court-orders.
Correct development and insistence on proper implementation of a proactive corporate culture that is compliant with regulation is significantly less expensive than the alternative. This principle is illustrated in R. v. Bata Industries Ltd., [1992] O.J. No. 236, C.C.C. (3d) 394 p, where the original cost of proper removal of the improperly stored chemicals would have been $56,000 in early 1987 – significantly less than the outcome, including the associated court costs, the lost revenue from negative publicity, the time of the directors for court appearances, etc. In this case, at the very least the CEO avoided potential liability due to his development of a proactive compliant comprehensive environmental policy. A similar but more extreme example, the case of R. v. Syncrude Canada Ltd., 2010 ABPC 229, [2010] A.J. No. 730 goes to show the consequence of having effectively no corporate policy in place and not following what limited directives that existed that may or may not have been widely distributed down the chain of command.
The middle-ground can be seen with cases such R. v. Imperial Oil Ltd., [2000] 2000 BCCA 553, B.C.J. No. 2031, which illustrate that in some cases, despite a company’s best intentions, and the existence of a compliance and responsibility program titled “Haz-Ops” whose sole purpose was to remedy situations such as the one that occurred before they happened, the failure of the preventative program can be enough to seriously hamper the advancement of a due diligence defense. However, this decision was seen by some as holding the company to a standard of perfect that exceeded the reasonable care necessary for a successful defense of due diligence.
On the other hand, cases such as R. v. Pacifica Papers Inc., 2002 BCPC 265 [2002] B.C.J. No. 1639 and R. v. BHP Diamonds Inc., 2002 NWTSC 74, [2002] N.W.T.J. No. 91 go to show the positive outcome when in-depth proactive corporate compliance programs are developed and followed.
As such, regulation generally has encouraged corporate responsibility through the creation of proactive compliance programs. The extent to which each program meets the standard for a due diligence defense in court, however, varies on a case by case basis.
Works Cited
R. v. Pacifica Papers Inc., 2002 BCPC 265, [2002] B.C.J. No. 1639
R. v. BHP Diamonds Inc., 2002 NWTSC 74, [2002] N.W.T.J. No. 91
R. v. Bata Industries Ltd., [1992] O.J. No. 236, 70 C.C.C. (3d) 394 p
R. v. Syncrude Canada Ltd., 2010 ABPC 229, [2010] A.J. No. 730
R. v. Imperial Oil Ltd., 2000 BCCA 553, [2000] B.C.J. No. 2031
Government of Canada, “Bulletin: Corporate Compliance Programs”. Competition
Bureau Canada, September 27 2010. <http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/CorporateCompliancePrograms-sept-2010-e.pdf/$FILE/CorporateCompliancePrograms-sept-2010-e.pdf>
N.J. Strantz, “Beyond R. v. Sault Ste. Marie: the creation and Expansion of Strict Liability and the Due Diligence Defence”, (1992) 30 Alta L. Rev. 1233
Footnotes
[1] Strantz, p.4.
[2] Strantz, p.4.
[3] Strantz, p.4.
[4] What constitutes ‘all reasonable steps’ is subject to a factual determination on a case-by-case basis.
[5] Strantz, p.4.
[6] Strantz, p.8.
[7] Competition Bureau, p.3
[8] Competition Bureau, p.3.
[9] Competition Bureau, p.3.
[10] Competition Bureau, p.3.
[11] Imperial Oil, para 14.
[12] Imperial Oil, para 14.
[13] Imperial Oil, paras 16, 17.
[14] Imperial Oil, para 20.
[15] Imperial Oil, para 23.
[16] Imperial Oil, para 28.
[17] Imperial Oil, para 35.
[18] Pacifica Papers, para 39.
[19] Pacifica Papers, para 40.
[20] Pacifica Papers, para 45.
[21] Pacifica Papers, para 36.
[22] Pacifica Papers, para 46.
[23] Pacifica Papers, para 134.
[24] Pacifica Papers, para 102.
[25] BHP Diamonds, para 4.
[26] BHP Diamonds, para 4.
[27] BHP Diamonds, para 12.
[28] BHP Diamonds, para 6.
[29] BHP Diamonds, para 18.
[30] BHP Diamonds, para 19.
[31] BHP Diamonds, para 24.
[32] BHP Diamonds, paras 84, 105.
[33] BHP Diamonds, paras 113, 115.
[34] BHP Diamonds, para 147.
[35] BHP Diamonds, paras 171, 172
[36] BHP Diamonds, para 165.
[37] Bata Industries, paras 1, 2.
[38] Bata Industries, para 2.
[39] Bata Industries, para 4.
[40] Bata Industries, para 5.
[41] Bata Industries, para 28.
[42] Bata Industries, para 28.
[43] Bata Industries, para 28.
[44] Bata Industries, para 28.
[45] Bata Industries, para 31.
[46] Bata Industries, para 34.
[47] Bata Industries, para 34.
[48] Bata Industries, paras 36, 37.
[49] Bata Industries, para 58.
[50] Bata Industries, para 59.
[51] Bata Industries, para 60.
[52] Bata Industries, para 60.
[53] Bata Industries, para 143.
[54] It is important to note that the case of Bata Industries Ltd. dates back to 1992. Currently it is likely that this action alone would not be enough for a defense of due diligence to be successful.
[55] Syncrude Canada, para 1.
[56] Syncrude Canada, para 2.
[57] Syncrude Canada, para 2.
[58] Syncrude Canada, para 3.
[59] Syncrude Canada, para 10.
[60] Syncrude Canada, para 12.
[61] Syncrude Canada, paras 41, 42.
[62] Syncrude Canada, para 98.
[63] Syncrude Canada, para 23.
[64] Syncrude Canada, para 24.
[65] Syncrude Canada, para 26.
[66] Syncrude Canada, para 27.
[67] Syncrude Canada, para 30.
[68] Syncrude Canada, para 31.
[69] Syncrude Canada, para 35.
[70] Syncrude Canada, para 43.
[71] Syncrude Canada, para 111.
[72] Syncrude Canada, para 111.
