Taken together in its entirety, the Code is designed to help SMEs. As presented in the consultation document, the Code is more than the provisions. A key component of the Code is the Office of the Adjudicator and the role it plays in education, and the powers it has to investigate and enforce the Code that translate the provisions into meaningful outcomes. For example, the section on fair dealing is extremely significant for SMEs, as long as it is supported with some degree of accountability and enforcement under the voluntary framework. It is important to note that all of the tools, processes and measures found in the proposed Code are new measures that do not exist today. A few specific provisions that are helpful to SMEs, include: Sections 3.4 (Payments for Programs as Defined in an Agreement) 3.5 (Ad-hoc payments for non-compliance with the Terms of an Agreement) and 3.6: These put parameters around practices that currently lack any such boundaries, leaving SMEs currently very exposed to unpredictable and potentially unsubstantiated fees and fines. – Section 4.2 (Tying of Third-Party Goods or Services): This ensures private labels can’t exert market power imbalances to the degree that they compel use of third parties that aren’t otherwise competitive or reasonable in their pricing. – The entire section on good faith forecasting, in particular provision 4.4. where it states that a supplier is under no obligation to accept an order (which at the present time can lead to fines when demand is greater than available supply) and 4.5 which asks retailers to work with suppliers in mitigating the financial implications for suppliers when a retailer orders materially less than planned forecasts. The section on good faith forecasting is also expected to have a positive impact on the distortions in the supply chain that affect small and medium size retailers more acutely when demand for product is greater than supply. – Section 4.8 related to de-listing which requires the retailer to provide reasonable notice and reasons for the decision, the opportunity for the other party to discuss the reasons for the decision with a representative empowered to make a decision on the matter, and to work in good faith with the other party to manage depletion, supply, and related issues fairly. – Section 5.1 related to establishing direct communication lines between parties and to representatives empowered to make decisions on relevant matters, for all issues pertaining to the Code and its administration. This includes points of contact for informal discussions, dispute resolution, and overall communication. As noted previously, while the following are not Code provisions, these additional elements of the Code as pointed out in the consultation document are important for SMEs, as they provide for – Training to help SMEs know what to look for in the negotiation of a supply agreement; – The adjudicator’s broader investigative powers to identify systemic and/or individual breaches that don’t come through dispute resolution (given ongoing concerns around confidentiality); and – A platform to drive compliance: 2.2.1. Training & Education Training and education of members would include the provision of education materials, preventive measures/tools and coaching/consultation to help members cooperatively resolve a problem. This role is critically important as it could reduce both the probability of problematic behaviours and the risk of escalation should a dispute arise between two members. It would include the following measures: Preventive measures: Education, training and information dissemination through webinars and presentations, newsletters, position papers, guidance documents, templates and direct engagement with individual members by the GCAO staff. Preventive measures would make extensive use of position or interpretive material to showcase which behaviours are considered compliant under the Code, and which behaviours are considered non-compliant. Coaching and consultation measures: Members could seek advice and consultation with GCAO staff to identify any potential challenges and help them cooperatively resolve a problem. 2.2.2. Reporting & Accountability This would include the publication of an annual report which would provide key metrics to track progress on behaviours covered by the Code in order to illustrate the difference (if any) the Code has made in the supplier – retailer relationship in Canada and promote enhanced compliance with the Code provisions. The annual report would also report on how the organization is tracking relative to its strategic objectives and provide financial information to members. 2.2.4. Review of Issues and Ensuring Compliance through Various Tools Where credible evidence of a breach of the Code is provided, the GCAO would conduct its own research on the alleged breach which could lead to corrective measures, such as sanctions. Sanctions would be imposed as a last resort only.