Bill C-27
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2nd Session, 40th Parliament,
57-58 Elizabeth II, 2009
house of commons of canada
BILL C-27
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Electronic Commerce Protection Act.
INTERPRETATION
Definitions
2. (1) The following definitions apply in this Act.
“commercial activity”
« activité commerciale »
« activité commerciale »
“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.
“Commission”
« Conseil »
« Conseil »
“Commission” means the Canadian Radio-television and Telecommunications Commission.
“Commissioner of Competition”
« commissaire de la concurrence »
« commissaire de la concurrence »
“Commissioner of Competition” means the Commissioner of Competition appointed under subsection 7(1) of the Competition Act.
“computer program”
« programme d’ordinateur »
« programme d’ordinateur »
“computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.
“computer system”
« ordinateur »
« ordinateur »
“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.
“court of competent jurisdiction”
« tribunal compétent »
« tribunal compétent »
“court of competent jurisdiction” means the Federal Court or a superior court of a province.
“data”
« données »
« données »
“data” means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system.
“document”
« document »
« document »
“document” has the same meaning as in section 487.011 of the Criminal Code.
“electronic address”
« adresse électronique »
« adresse électronique »
“electronic address” means an address used in connection with the transmission of an electronic message to
(a) an electronic mail account;
(b) an instant messaging account;
(c) a telephone account; or
(d) any similar account.
“electronic message”
« message électronique »
« message électronique »
“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message.
“person”
« personne »
« personne »
“person” means an individual, partnership, corporation, organization, association, trustee, administrator, executor, liquidator of a succession, receiver or legal representative.
“Privacy Commissioner”
« Commissaire à la protection de la vie privée »
« Commissaire à la protection de la vie privée »
“Privacy Commissioner” means the Privacy Commissioner appointed under section 53 of the Privacy Act.
“telecommunications facility”
« installation de télécommunication »
« installation de télécommunication »
“telecommunications facility” means any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications.
“telecommunications service”
« service de télécommunication »
« service de télécommunication »
“telecommunications service” means a service, or a feature of a service, that is provided by means of telecommunications facilities, whether the telecommunications services provider owns, leases or has any other interest in or right respecting the telecommunications facilities and any related equipment used to provide the service.
“telecommunications service provider”
« télécommunicateur »
« télécommunicateur »
“telecommunications service provider” means a person who, independently or as part of a group or association, provides telecommunications services.
“transmission data”
« données de transmission »
« données de transmission »
“transmission data” means data that
(a) relates to the telecommunications functions of dialling, routing, addressing or signalling;
(b) either is transmitted to identify, activate or configure an apparatus or device, including a computer program, in order to establish or maintain a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and
(c) does not reveal the substance, meaning or purpose of the communication.
Meaning of commercial electronic message
(2) For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that
(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
(b) offers to provide a business, investment or gaming opportunity;
(c) advertises or promotes anything referred to in paragraph (a) or (b); or
(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.
Other commercial electronic message
(3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.
Exclusion
(4) An electronic message described in subsection (2) or (3) that is sent for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.
PURPOSE
Purpose of Act
3. The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct
(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;
(b) imposes additional costs on businesses and consumers;
(c) compromises privacy and the security of confidential information; and
(d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.
HER MAJESTY
Act binding on certain agents
4. This Act is binding on any corporation that is expressly declared by or under any Act of Parliament or of the legislature of a province to be an agent of Her Majesty, when the corporation is acting as such in the course of any commercial activity.
APPLICATION
Broadcasting excluded
5. This Act does not apply in respect of broadcasting by a broadcasting undertaking, as those terms are defined in subsection 2(1) of the Broadcasting Act.
REQUIREMENTS AND PROHIBITIONS
Unsolicited electronic messages
6. (1) No person shall send or cause or permit to be sent to an electronic address a commercial electronic message unless
(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and
(b) the message complies with subsection (2).
Contents of message
(2) The message must be in a form that conforms to the prescribed requirements and must
(a) set out prescribed information that identifies the person who sent the message and the person — if different — on whose behalf it is sent;
(b) set out information enabling the person to whom the message is sent to readily contact one of the persons referred to in paragraph (a); and
(c) set out an unsubscribe mechanism in accordance with subsection 11(1).
Period of validity of contact information
(3) The person who sends the commercial electronic message and the person — if different — on whose behalf the commercial electronic message is sent shall ensure that the contact information referred to in paragraph (2)(b) is valid for a minimum of 60 days after the message has been sent.
Interpretation
(4) For the purposes of subsection (1)
(a) an electronic message is considered to have been sent once its transmission has been initiated; and
(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.
Exception
(5) This section does not apply to a commercial electronic message
(a) that is sent by an individual to another individual with whom they have a personal or family relationship, as defined in the regulations;
(b) that is sent to a person who is engaged in a commercial activity and consists solely of an inquiry or application related to that activity; or
(c) that is of a class, or is sent in circumstances, specified in the regulations.
Exception
(6) This section does not apply to a telecommunications service provider merely because the service provider provides a telecommunications service that enables the transmission of the message.
Exception
(7) This section does not apply to a commercial electronic message
(a) that is, in whole or in part, an interactive two-way voice communication between individuals;
(b) that is sent by means of a facsimile to a telephone account; or
(c) that is a voice recording sent to a telephone account.
Altering transmission data
7. (1) No person shall, in the course of a commercial activity, alter or cause to be altered the transmission data in an electronic message so that the message is delivered to a destination other than or in addition to that specified by the sender, unless the alteration is made with the express consent of the sender or in accordance with a court order.
Exception
(2) Subsection (1) does not apply if the alteration is made by a telecommunications service provider for the purposes of network management.
Installation of computer program
8. (1) No person shall, in the course of a commercial activity, install or cause to be installed a computer program on any other person’s computer system or, having so installed or caused to be installed a computer program, cause an electronic message to be sent from that computer system, unless the person has obtained the express consent of the owner or an authorized user of a computer system or is acting in accordance with a court order.
Application
(2) A person contravenes subsection (1) only if the computer system is located in Canada at the relevant time or if the person either is in Canada at the relevant time or is acting under the direction of a person who is in Canada at that time.
Contravention of sections 6 to 8
9. No person shall procure or cause to be procured the doing of any act contrary to any of sections 6 to 8.
Express consent — sections 6 to 8
10. (1) A person who seeks express consent for the doing of an act described in any of sections 6 to 8 must, when requesting consent, set out clearly and simply the following information:
(a) the purpose or purposes for which the consent is being sought;
(b) prescribed information that identifies the person seeking consent and, if the person is seeking consent on behalf of another person, prescribed information that identifies that other person; and
(c) any other prescribed information.
Additional requirement — section 8
(2) A person who seeks express consent for the doing of any act described in section 8 must, when requesting consent, also describe clearly and simply the function, purpose and impact of every computer program that is to be installed if the consent is given and set out any other prescribed information.
Implied consent — section 6
(3) Consent is implied for the purpose of section 6 only where the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent, or in the circumstances set out in the regulations.
Definition of “existing business relationship”
(4) In subsection (3), “existing business relationship” means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from
(a) the purchase or lease of a product, goods, a service, land or an interest or right in land, within the 18-month period immediately preceding the day on which the message was sent, by the person to whom the message is sent from any of those other persons;
(b) the acceptance by the person to whom the message is sent, within the period referred to in paragraph (a), of a business, investment or gaming opportunity offered by any of those other persons;
(c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent and any of those other persons within the period referred to in that paragraph;
(d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the period referred to in paragraph (a); or
(e) an inquiry or application, within the six-month period immediately preceding the day on which the message was sent, made by the person to whom the message is sent to any of those other persons, in respect of anything mentioned in any of paragraphs (a) to (c).
Clarification
(5) For the purposes of subsection (4), the following organizations are considered to be businesses:
(a) a cooperative as defined in subsection 2(1) of the Canada Cooperatives Act;
(b) a cooperative corporation as defined in section 2 of the Cooperative Credit Associations Act; and
(c) any similar organization incorporated under an Act of Parliament or the legislature of a province.
Definition of “existing non-business relationship”
(6) In subsection (3), “existing non-business relationship” means a non-business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from
(a) a donation or gift made by the person to whom the message is sent to any of those other persons within the 18-month period immediately preceding the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization, or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office;
(b) volunteer work performed by the person to whom the message is sent for any of those other persons, or attendance at a meeting organized by that other person, within the 18-month period immediately preceding the day on which the message was sent, where that other person is a registered charity as defined in subsection 248(1) of the Income Tax Act, a political party or organization or a person who is a candidate — as defined in an Act of Parliament or of the legislature of a province — for publicly elected office; or
(c) membership, as defined in the regulations, by the person to whom the message is sent, in any of those other persons, within the 18-month period immediately preceding the day on which the message was sent, where that other person is a club, association or voluntary organization, as defined in the regulations.
Unsubscribe mechanism — section 6
11. (1) The unsubscribe mechanism referred to in paragraph 6(2)(c) must
(a) enable the person to whom the commercial electronic message is sent to indicate, using the same electronic means by which the message was sent, that they do not wish to receive any commercial electronic messages, or any specified class of such messages, from the sender or the person — if different — on whose behalf the message is sent; and
(b) specify an electronic address to which the indication may be sent or provide a hyperlink by means of which the indication can be given.
Period of validity of contact information
(2) The person who sends the commercial electronic message and the person — if different — on whose behalf it is sent shall ensure that the electronic address or hyperlink referred to in paragraph (1)(b) is valid for a minimum of 60 days after the message has been sent.
Additional requirement
(3) The person who sent the commercial electronic message and the person — if different — on whose behalf the message was sent shall ensure that effect is given to an indication sent or given in accordance with paragraph (1)(b) without delay, and in any event no later than 10 days after the indication has been sent or given, without any further action being required on the part of the person who so indicated.
Withdrawal of consent — section 7
(4) A person who has the express consent of the sender to do any act described in section 7 shall
(a) for the period covered by the consent, ensure that the sender is provided with an electronic address to which they may send, or a hyperlink by means of which they can give, notice of the withdrawal of their consent; and
(b) ensure that effect is given to a notice of withdrawal of consent sent or given in accordance with paragraph (a) without delay, but in any event no later than 10 days after receiving it.
Withdrawal of consent — section 8
(5) A person who has the express consent of an owner or authorized user to do any act described in section 8 shall
(a) for a period of one year after any computer program is installed under the consent, ensure that the person who gave their consent is provided with an electronic address to which they may, if they believe that the function, purpose or impact of the computer program installed under the consent was not accurately described when consent was requested, send a request to remove or disable that computer program; and
(b) if the consent was based on an inaccurate description of the function, purpose or impact of the computer program, on receipt within that one-year period of a request to remove or disable that computer program, without cost to the person who gave consent, assist that person in removing or disabling the computer program as soon as feasible.
Contravention of section 6 or 7
12. A person contravenes section 6 or 7 only if a computer system located in Canada is used to send, route or access the electronic message.
Burden of proof
13. A person who alleges that they have consent to do an act that would otherwise be prohibited under any of sections 6 to 8 has the onus of proving it.
ADMINISTRATIVE MONETARY PENALTIES
Designation
Designated persons
14. For the purposes of any of sections 15 to 46, the Commission may designate persons or classes of persons appointed under section 8 of the Canadian Radio-television and Telecommunications Commission Act to exercise powers in relation to any matter referred to in the designation.
Preservation Demand
Preservation demand
15. (1) A person who is designated for the purpose of this section may cause a demand to be served on a telecommunications service provider requiring it to preserve transmission data that is in, or comes into, its possession or control.
Expiry and revocation
(2) Subject to subsection (5), the demand expires 21 days after the day on which it is served unless, before its expiry, a notice extending the demand for an additional period of 21 days is served on the telecommunications service provider. A demand may not be extended more than once and a notice revoking the demand may be served on the telecommunications service provider at any time.
Purpose of demand
(3) A person who is designated for the purpose of this section may make or extend a demand only for the purpose of verifying compliance with this Act or determining whether any of sections 6 to 9 has been contravened.
Conditions to prevent disclosure
(4) The designated person causing a demand to be served may impose conditions in the demand to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of an investigation under this Act.
Expiry and revocation of conditions
(5) A condition imposed to prevent disclosure expires six months after the day on which the demand is served on the telecommunications service provider unless, before its expiry, a notice extending the condition for an additional period of six months is served on the telecommunications service provider. A condition may not be extended more than once and a notice revoking the condition may be served on the telecommunications service provider at any time.
Preservation and destruction of transmission data
(6) A telecommunications service provider that is served with a demand shall
(a) subject to subsections 16(2) and (3), preserve the data until the demand expires or is revoked; and
(b) destroy the data that would not be retained in the normal course of business and any document that is prepared for the purpose of preserving data under this section as soon as the demand expires or is revoked, unless a notice requiring the production of a document based on that data has been served on it under section 17.
Application for review
16. (1) Within five days after the day on which a demand is served, a telecommunications service provider may apply in writing to the Commission either for a review of the demand on the grounds that preservation of some or all of the data would place an undue burden on it or for a review of the conditions imposed to prevent disclosure.
Powers of Commission
(2) If an application is made, the Commission may decide
(a) to set aside, in respect of the data to which the application relates, the requirement to preserve transmission data set out in a demand served under section 15 if the Commission is satisfied that the preservation of that data would place an undue burden on the telecommunications service provider; or
(b) to set aside a condition imposed to prevent disclosure unless it is satisfied, having regard to evidence submitted by a person designated for the purpose of section 15, that there are reasonable grounds to believe that the disclosure would jeopardize the conduct of an investigation under this Act.
No obligation to preserve new data
(3) If a telecommunications service provider applies for review on the grounds that preservation of some or all of the data would place an undue burden on it and the Commission does not make a decision in respect of that matter within five business days after the day on which the application was made, the telecommunications service provider is not required to preserve any data to which the application relates that comes into the telecommunications service provider’s possession or control after the expiry of the five days.
Notice of decision
(4) The Commission shall cause a copy of its decision to be served on the telecommunications service provider.
Notice to Produce
Notice for production
17. (1) A person who is designated for the purpose of this section may cause a notice to be served on a person requiring them to produce a copy of a document that is in their possession or control, or to prepare a document based on data, information or documents that are in their possession or control and to produce that document.
Purpose of notice
(2) The designated person may issue the notice only for the purpose of verifying compliance with this Act or determining whether any of sections 6 to 9 has been contravened.
Particulars of notice
(3) The notice must require the document to be produced to a person named in the notice within the time, at the place and in the form specified in the notice.
Conditions
(4) The designated person may impose conditions in the notice to prevent the disclosure of some or all of its contents or its existence if they have reasonable grounds to believe that the disclosure would jeopardize the conduct of an investigation under this Act.
Expiry and revocation of conditions
(5) A condition imposed to prevent disclosure expires six months after the day on which the notice is served on the person unless, before its expiry, a notice extending the condition for an additional period of six months is served on them. A condition may not be extended more than once and a notice revoking the condition may be served on the person at any time.
Return of documents not required
(6) Documents and copies of documents that are produced under this section need not be returned to the person who produced them.
Application for review
18. (1) At any time before they are required to produce a document, a person may apply in writing to the Commission either for a review of the notice on the grounds that the requirement to prepare or produce a document is unreasonable in the circumstances or that the production would disclose privileged information or for a review of the conditions imposed to prevent disclosure.
No obligation to produce
(2) If a person applies for review on the grounds that the requirement to prepare or produce a document is unreasonable in the circumstances, they are not required to prepare or produce the document.
Powers of Commission
(3) On considering the application, the Commission may decide to
(a) either confirm the requirement to produce a document or set aside the requirement to prepare or produce a document if it is satisfied that the requirement is unreasonable in the circumstances or that the production would disclose privileged information; or
(b) set aside a condition imposed to prevent disclosure unless it is satisfied, having regard to evidence submitted by a person designated for the purpose of section 17, that there are reasonable grounds to believe that the disclosure would jeopardize the conduct of an investigation under this Act.
Particulars
(4) If the Commission decides to confirm the requirement to produce a document, it shall specify in its decision that the document be produced to a person named in the decision within the time, at the place and in the form set out in the decision.
Notice of decision
(5) The Commission shall cause a copy of its decision to be served on the person.
Warrants
Warrant
19. (1) On an ex parte application, a justice of the peace may issue a warrant authorizing a person who is designated for the purpose of this section and who is named in the warrant to enter a place if the justice is satisfied by information on oath that
(a) entry to the place is necessary to verify compliance with this Act or to determine whether any of sections 6 to 9 has been contravened; and
(b) if the place is a dwelling-house, entry has been refused or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.
Conditions in warrant
(2) The warrant may contain any conditions that the justice considers appropriate, including conditions to protect privileged information.
Powers in execution of warrant
(3) Subject to the conditions specified in the warrant, in executing the warrant, the designated person may, for the purpose of verifying compliance with this Act or determining whether any of sections 6 to 9 has been contravened,
(a) examine anything that is found in the place;
(b) use any means of communication found in the place or cause it to be used;
(c) use any computer system found in the place — or cause it to be used — to examine data contained in, or available to, the system;
(d) prepare a document — or cause it to be prepared — based on the data;
(e) use any copying equipment — or cause it to be used — to make copies of documents;
(f) remove anything found in the place for examination or copying; and
(g) prohibit or limit access to all or part of the place.
Assistance to designated persons
(4) The owner of the place, the person in charge of the place and every person found in the place shall give all assistance that is reasonably required to enable the designated person to verify compliance or determine whether any of sections 6 to 9 has been contravened and shall provide any documents, data and information — including information establishing their identity — that are reasonably required for that purpose.
Execution of warrant
(5) A warrant must be executed between six o’clock in the morning and nine o’clock in the evening unless the justice authorizes its execution at another time.
Entry onto private property
(6) For the purpose of gaining entry to the place referred to in the warrant issued under subsection (1), the designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has the right to object to that use of the property and no warrant is required for entry onto the property, other than for entry to a dwelling-house.
Persons accompanying designated person
(7) A person may, at the designated person’s request, accompany the designated person to assist the designated person to gain entry to the place referred to in the warrant and is not liable for doing so.
Use of force
(8) In executing a warrant, a designated person shall not use force unless they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
Violations
Violations
20. (1) Every person who contravenes any of sections 6 to 9 commits a violation for which they are liable to an administrative monetary penalty.
Purpose of penalty
(2) The purpose of a penalty is to promote compliance with this Act and not to punish.
Factors for penalty
(3) The following factors must be taken into account when determining the amount of a penalty:
(a) the purpose of the penalty;
(b) the nature and scope of the violation;
(c) the person’s history with respect to any previous violation under this Act, any previous conduct that is reviewable under section 74.011 of the Competition Act and any previous contravention of section 5 of the Personal Information Protection and Elec- tronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act;
(d) the person’s history with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;
(e) any financial benefit that the person obtained from the commission of the violation;
(f) the person’s ability to pay the penalty;
(g) whether the person has voluntarily paid compensation to a person affected by the violation;
(h) the factors established by the regulations; and
(i) any other relevant factor.
Maximum penalties
(4) The maximum penalty for a violation is $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.
Regulations
(5) The Governor in Council may make regulations
(a) designating provisions whose contravention constitutes a separate violation in respect of each day during which it continues; and
(b) establishing factors for the purposes of paragraph (3)(h).
Undertakings
Entry into undertaking
21. (1) A person may enter into an undertaking at any time.
Contents
(2) An undertaking
(a) must be accepted by a person who is designated for the purpose of this section;
(b) must identify every act or omission committed that constitutes a contravention of any of sections 6 to 9 and that is covered by the undertaking;
(c) must identify every provision at issue;
(d) may contain any conditions that the designated person considers appropriate; and
(e) may include a requirement to pay a specified amount.
Undertaking before notice of violation
(3) If a person enters into an undertaking, no notice of violation may be served on them in connection with an act or omission referred to in the undertaking.
Undertaking after notice of violation
(4) If a person enters into an undertaking after a notice of violation is served on them, the proceeding commenced by the notice of violation is ended in respect of that person in connection with any act or omission referred to in the undertaking.
Notices of Violation
Notice of violation
22. (1) A person who is designated for the purpose of this section may issue a notice of violation and cause it to be served on a person if they believe on reasonable grounds that the person has committed a violation.
Contents of notice
(2) The notice of violation must
(a) name the person believed to have committed the violation;
(b) identify every act or omission for which the notice is served and every provision at issue;
(c) set out the administrative monetary penalty that the person is liable to pay and the time and manner of payment;
(d) inform the person that they may make representations to the Commission within 30 days after the day on which the notice is served or any longer period set out in the notice, and set out the manner for making the representations;
(e) inform the person that, if they do not pay the penalty or make representations in accordance with the notice, they will be deemed to have committed the violation and that the penalty set out in the notice will be imposed; and
(f) inform the person that if they are found or are deemed to have committed a violation they may be made the subject of an order requiring them to do what this Act requires them to do, or forbidding them to do what this Act prohibits them from doing, and that the order can be enforced as an order of a court of competent jurisdiction.
Limitation period
23. (1) No proceeding in respect of a violation may be commenced later than three years after the day on which the subject matter of the proceeding became known to the Commission.
Certificate
(2) A document that appears to have been issued by the secretary to the Commission, certifying the day on which the subject matter of any proceeding became known to the Commission, is admissible in evidence without proof of the signature or official character of the person who appears to have signed the document and is proof of the matter asserted in it in the absence of evidence to the contrary.
Determination of Responsibility
Options
24. (1) A person who is served with a notice of violation shall, in accordance with the notice, pay the penalty set out in the notice or make representations with respect to the amount of the penalty or the acts or omissions that constitute the alleged violation.
Deemed violation
(2) A person is deemed to have committed the violation if they either pay the penalty in accordance with the notice of violation or do not pay the penalty, or do not make representations, in accordance with the notice of violation.
Representations
25. (1) If a person makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may impose the penalty set out in the notice of violation or may reduce or waive it.
Notice of decision
(2) The Commission shall cause a copy of its decision to be served on the person together with a notice of their right to appeal.
Restraining orders
26. If a person is deemed under subsection 24(2) to have committed a violation or has been found under subsection 25(1) to have committed a violation, the Commission may make an order directing the person to cease contravening the provision to which the violation relates.
Appeal to Federal Court of Appeal
Appeal to Federal Court of Appeal
27. (1) An appeal may be brought in the Federal Court of Appeal from a decision made under section 16, 18 or 25 or an order made under section 26.
Appeal on question of fact
(2) An appeal on a question of fact from a decision made under section 16, 18 or 25 or an order made under section 26 may be brought only with the leave of the Federal Court of Appeal.
Recovery of Penalties and Other Amounts
Debts due to Her Majesty
28. (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:
(a) the amount payable under an undertaking entered into under subsection 21(1) beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is entered into;
(b) the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice;
(c) if representations are made, either the amount of the penalty that is imposed by the Commission or on appeal, as the case may be, beginning on the day specified by the Commission or the court or, if no day is specified, beginning on the day on which the decision is made; and
(d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).
Limitation period — prescription
(2) A proceeding to recover such a debt may not be commenced later than five years after the day on which the debt becomes payable.
Receiver General
(3) The debt is payable to the Receiver General.
Certificate of default
29. (1) The Commission may issue a certificate certifying the unpaid amount of any debt referred to in subsection 28(1).
Effect of registration
(2) Registration of a certificate in the Federal Court has the same effect as a judgment of that Court for a debt of the amount set out in the certificate and all related registration costs.
Rules about Violations
For greater certainty
30. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Directors, officers, etc., of corporations
31. An officer, director, agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.
Vicarious liability
32. A person is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.
Defence
33. (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.
Common law principles
(2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act.
General Provisions
Questions of law and fact
34. (1) The Commission may decide any question of law or of fact in a proceeding under section 16, 18 or 25.
Factual findings of court
(2) In deciding a question of fact, the Commission is not bound by the finding or judgment of a court. However, the finding or judgment of a court is admissible in proceedings of the Commission.
Pending proceedings
(3) The power of the Commission to decide a question of fact is not affected by proceedings pending before a court in which the question is in issue.
Judicial powers
35. In a proceeding under section 16, 18 or 25, the Commission has the powers of a superior court with respect to the attendance and examination of witnesses and the production and examination of documents or things.
Panels of Commission
36. (1) The Chairperson of the Commission may establish panels to decide any matter on behalf of the Commission in a proceeding under section 16, 18 or 25.
Presiding member
(2) If a panel consists of more than one member, the Chairperson shall designate one of the members to preside over the panel.
Decision
(3) A decision of a majority of the members of a panel is a decision of the panel.
Acting after expiry of appointment
(4) A member whose appointment expires may, with the approval of the Chairperson, conclude any proceeding that the member has begun.
Powers of panel
(5) A panel may exercise the powers and perform the duties and functions of the Commission under this Act in relation to any matter before the panel.
Rules of procedure
37. (1) The Commission may make rules respecting the making of applications and representations to the Commission, and the conduct of proceedings held by it, under sections 16, 18 and 25.
Form and content of demands and notices
(2) The Commission may establish the form and content of demands under section 15, notices to prepare or produce documents under section 17 and notices of violation under section 22.
Evidence
38. A demand under section 15, a notice to prepare or produce documents under section 17, a notice of violation under section 22, or a copy of a decision under section 16, 18 or 25, that appears to have been served is admissible in evidence in a proceeding without proof of the signature or official character of the person who appears to have signed it.
Information may be made public
39. The Commission may make public
(a) the name of a person who enters into an undertaking, the nature of the undertaking including the acts or omissions and provisions at issue, the conditions included in the undertaking and the amount payable under it, if any; or
(b) the name of a person who is deemed, or is found by the Commission or on appeal, to have committed a violation, the acts or omissions and provisions at issue and the amount payable as a result, if any.
Enforcement
40. (1) A demand served under section 15, a notice served under section 17, an undertaking entered into under section 21 and an order of the Commission made under section 26 may be made an order of a court of competent jurisdiction and may be enforced in the same manner as an order of that court as if it had been an order of that court on the date it was served, entered into or made, as the case may be.
Procedure
(2) The demand, notice, undertaking or order may be made an order of a court of competent jurisdiction by the filing with the registrar of the court of
(a) a copy of the demand certified by a person designated for the purpose of section 15;
(b) a copy of the notice certified by a person designated for the purpose of section 17;
(c) a copy of the undertaking certified by a person designated for the purpose of section 21; or
(d) a copy of the order certified by the secretary to the Commission.
Rescission or variation
(3) On application by a person designated for the purpose of section 21 and a person who has entered into an undertaking that has been filed in a court of competent jurisdiction, that court shall rescind or vary the undertaking if it finds that another undertaking in relation to the same acts or omissions has been entered into by the person.
INJUNCTION
Injunction
41. (1) If, on the application of a person designated for the purpose of this section, a court of competent jurisdiction is satisfied that a person is about to do or is likely to do anything that constitutes or is directed toward the contravention of any of sections 6 to 9, the court may issue an injunction ordering any person named in the application
(a) to refrain from doing anything that, in the opinion of the court, constitutes or is directed toward the contravention of that section; or
(b) to do anything that, in the opinion of the court, may prevent the contravention of that section.
Notice
(2) No injunction may be issued unless 48 hours’ notice is given to every person named in the application or the urgency of the situation is such that service of the notice would not be in the public interest.
OFFENCES
Non-compliance
42. Every person who refuses or fails to comply with a demand made under section 15 or a notice issued under section 17 or who contravenes subsection 19(4) commits an offence.
Obstruction and false information
43. Every person who obstructs or hinders, or knowingly makes a false or misleading statement or provides false or misleading information to, a designated person who is carrying out their duties and functions under this Act commits an offence.
Directors and officers of corporations
44. An officer, director, agent or mandatary of a corporation that commits an offence is a party to and liable for the offence if they directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the corporation is proceeded against.
Vicarious liability
45. A person is liable for an offence that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.
Offence
46. (1) Every person who commits an offence under section 42 or 43 is guilty of an offence punishable on summary conviction and is liable
(a) to a fine of not more than $10,000 for a first offence or $25,000 for a subsequent offence, in the case of an individual; or
(b) to a fine of not more than $100,000 for a first offence or $250,000 for a subsequent offence, in the case of any other person.
Defence
(2) A person shall not be convicted of an offence under section 42 if they establish that they exercised due diligence to prevent the commission of the offence.
PRIVATE RIGHT OF ACTION
Application
Application
47. (1) A person who alleges that they are affected by an act or omission that constitutes a contravention of any of sections 6 to 9 of this Act or of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act — or that constitutes conduct that is reviewable under section 74.011 of the Competition Act — may apply to a court of competent jurisdiction for an order under section 51 against one or more persons who they allege have committed the act or omission, who they allege are liable for the contravention by reason of section 52 or 53 or who they allege have engaged in the reviewable conduct.
Limitation period
(2) Unless the court decides otherwise, no application may be brought later than three years after the day on which the subject matter of the proceeding became known to the applicant.
Affidavit to accompany application
(3) The application must be accompanied by an affidavit that identifies the alleged contravention or reviewable conduct, sets out every provision that is alleged to have been contravened, every act or omission at issue and any other facts in support of the application and, if the applicant claims that they have suffered an actual loss or damage, or have incurred expenses, as a result of the alleged contravention or reviewable conduct, states the nature and amount of the loss, damage or expenses.
Notice
(4) The applicant shall, without delay, serve a copy of the application on every person against whom an order is sought, on the Commission if the application identifies a contravention of this Act, on the Commissioner of Competition if the application identifies conduct that is reviewable under the Competition Act and on the Privacy Commissioner if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.
Limitation
48. (1) The court may not consider an application for an order against a person under paragraph 51(1)(b) that alleges a contravention of any of sections 6 to 9
(a) if the person has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application; or
(b) if the person is liable for the contravention by virtue of section 52 or 53 and the corporation, employee, agent or mandatary, as the case may be, who committed the contravention has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application.
Certification by Commission
(2) At the written request of a person against whom an order under paragraph 51(1)(b) is sought, the Commission shall, within 10 days after the day on which the request is made, if it is so satisfied, certify in writing to the court that the person is a person referred to in paragraph (1)(b) and that an undertaking has been entered into, or a notice of violation has been served, in connection with the act or omission referred to in the application for the order. If such a certification is given, the court may not consider the application.
Effect of application
(3) If the court determines that it may consider an application for an order against a person under paragraph 51(1)(b), then, unless the application is discontinued in respect of that person,
(a) no undertaking by the person may be entered into under subsection 21(1), and no notice of violation may be issued to them under subsection 22(1), in connection with an act or omission referred to in an application; and
(b) no undertaking by the corporation, employee, agent or mandatary who committed the contravention may be entered into under subsection 21(1), and no notice of violation may be issued to that corporation, employee, agent or mandatary under subsection 22(1), in connection with an act or omission referred to in an application.
Notice of discontinuance
49. If an application for an order under paragraph 51(1)(b) is discontinued in respect of a person, the applicant shall, without delay, notify everyone who was served with a copy of the application under subsection 47(4) of the discontinuance.
Hearing
Right to intervene
50. The following may intervene in any proceedings in connection with an application under subsection 47(1) for an order under paragraph 51(1)(b) and in any related proceedings:
(a) the Commission, if the application identifies a contravention of this Act;
(b) the Commissioner of Competition, if the application identifies conduct that is reviewable under the Competition Act; and
(c) the Privacy Commissioner, if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.
Order
51. (1) If, after hearing the application, the court is satisfied that one or more persons have contravened any of the provisions referred to in the application, the court may order the person or persons, as the case may be, to pay the applicant
(a) compensation in an amount equal to the actual loss or damage suffered or expenses incurred by the applicant; and
(b) a maximum of $200 for each contravention of the provision, not exceeding $1,000,000 for each day on which one or more of those contraventions occurred.
Factors to be considered
(2) The court shall consider the following factors when it determines the amount payable under paragraph (1)(b) for each contravention:
(a) the nature and scope of the contravention;
(b) the person’s history, or each person’s history, as the case may be, with respect to any previous contravention of this Act and of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act and of conduct that is reviewable under section 74.011 of the Competition Act;
(c) the person’s history, or each person’s history, as the case may be, with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;
(d) any financial benefit that the person or persons obtained from the commission of the contravention;
(e) the person’s or persons’ ability to pay the total amount payable;
(f) whether the applicant has received compensation in connection with the contravention;
(g) the factors established by the regulations; and
(h) any other relevant factor.
Rules about Contraventions
Directors and officers of corporations
52. An officer, director, agent or mandatary of a corporation that commits a contravention of any of sections 6 to 9 is a party to and liable for the contravention if they directed, authorized, assented to, acquiesced in or participated in the commission of the contravention, whether or not the corporation is proceeded against.
Vicarious liability
53. A person is liable for a contravention of any of sections 6 to 9 that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.
Defence
54. (1) A person shall not be found to have committed a contravention of any of sections 6 to 9 if they establish that they exercised due diligence to prevent the commission of the contravention.
Common law principles
(2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a contravention of any of sections 6 to 9 to the extent that it is not inconsistent with this Act.
Liability
55. If more than one person is determined by the court under subsection 51(1) to have contravened any of the provisions referred to in an application under subsection 47(1), those persons are jointly and severally, or solidarily, liable for the payment of the amounts ordered to be paid under subsection 51(1) in respect of the contravention.
CONSULTATION AND DISCLOSURE OF INFORMATION
Disclosure by an organization
56. Despite subsection 7(3) of the Personal Information Protection and Electronic Documents Act, any organization to which Part 1 of that Act applies may on its own initiative disclose to the Commission, the Commissioner of Competition or the Privacy Commissioner any information in its possession that it believes relates to
(a) a contravention of
(i) any of sections 6 to 9,
(ii) section 52.01 of the Competition Act or, in respect of conduct carried out by electronic means, section 52, 52.1, 53, 55 or 55.1 of that Act,
(iii) section 5 of the Personal Information Protection and Electronic Documents Act, which contravention relates to a collection or use described in subsection 7.1(2) or (3) of that Act, or
(iv) any prohibition or requirement of the Commission, in respect of conduct carried out by electronic means, under section 41 of the Telecommunications Act; or
(b) conduct that is reviewable under section 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, under section 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.
Consultation
57. The Commission, the Commissioner of Competition and the Privacy Commissioner shall consult with each other to the extent that they consider appropriate to ensure the effective regulation, under this Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, of commercial conduct that discourages the use of electronic means to carry out commercial activities, and to coordinate their activities under those Acts as they relate to the regulation of that type of conduct.
Disclosure by Commission
58. (1) The Commission may disclose information obtained by it in the performance or exercise of its duties or powers related to any of sections 6 to 9 of this Act and, in respect of conduct carried out by electronic means, to section 41 of the Telecommunications Act,
(a) to the Privacy Commissioner, if the Commission believes that the information relates to the performance or exercise of the Privacy Commissioner’s duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act; and
(b) to the Commissioner of Competition, if the Commission believes that the information relates to the performance or exercise of the Commissioner of Competition’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.
Disclosure by Commissioner of Competition
(2) Despite section 29 of the Competition Act, the Commissioner of Competition may disclose information obtained by him or her in the performance or exercise of his or her duties or powers related to section 52.01 or 74.011 of that Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act,
(a) to the Privacy Commissioner, if the Commissioner of Competition believes that the information relates to the performance or exercise of the Privacy Commissioner’s duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act; and
(b) to the Commission, if the Commissioner of Competition believes that the information relates to the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Disclosure by Privacy Commissioner
(3) The Privacy Commissioner may disclose information obtained by him or her in the performance or exercise of his or her duties or powers under Part 1 of that Act if the information relates to a collection or use described in subsection 7.1(2) or (3) of that Act or to an act alleged in a complaint in respect of which the Privacy Commissioner decides, under subsection 12(2) or 12.2(2) of that Act, to discontinue an investigation,
(a) to the Commissioner of Competition, if the Privacy Commissioner believes that the information relates to the performance or exercise of the Commissioner of Competition’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act; and
(b) to the Commission, if the Privacy Commissioner believes that the information relates to the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Use of information by Commission
59. (1) The Commission may use the information that is disclosed to it under paragraph 58(2)(b) or (3)(b) only for the purpose of the administration of any of sections 6 to 9 of this Act or, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Use of information by Commissioner of Competition
(2) The Commissioner of Competition may use the information that is disclosed to him or her under paragraph 58(1)(b) or (3)(a) only for the purpose of the performance or exercise of the Commissioner’s duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act.
Use of information by Privacy Commissioner
(3) The Privacy Commissioner may use the information that is disclosed to him or her under paragraph 58(1)(a) or (2)(a) only for the purpose of performing or exercising his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act.
Information shared with the government of a foreign state, etc.
60. (1) Information may be disclosed under an agreement or arrangement in writing between the Government of Canada, the Commission, the Commissioner of Competition or the Privacy Commissioner and the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, if the person responsible for disclosing the information believes that
(a) the information may be relevant to an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to
(i) conduct prohibited
(A) under any of sections 6 to 9, or
(B) under section 52.01 of the Competition Act or, in respect of conduct carried out by electronic means, under section 52, 52.1, 53, 55 or 55.1 of that Act,
(ii) conduct that contravenes section 5 of the Personal Information Protection and Electronic Documents Act and that relates to a collection or use described in subsection 7.1(2) or (3) of that Act,
(iii) conduct that is reviewable under section 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, under section 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act, or
(iv) conduct that contravenes any prohibition or requirement of the Commission, in respect of conduct carried out by electronic means, under section 41 of the Telecommunications Act; or
(b) the disclosure is necessary in order to obtain from that foreign state, organization or institution information that may be relevant for any of the following purposes and no more information will be disclosed than is required for that purpose:
(i) the administration of any of sections 6 to 9,
(ii) the performance or exercise by the Commissioner of Competition of his or her duties or powers related to section 52.01 or 74.011 of the Competition Act or, in respect of conduct carried out by electronic means, to section 52, 52.1, 53, 55, 55.1, 74.01, 74.02, 74.04, 74.05 or 74.06 of that Act,
(iii) the performance or exercise by the Privacy Commissioner of his or her duties or powers under Part 1 of the Personal Information Protection and Electronic Documents Act in respect of a collection or use described in subsection 7.1(2) or (3) of that Act, or
(iv) the administration, in respect of conduct carried out by electronic means, of section 41 of the Telecommunications Act.
Restriction on use
(2) An agreement or arrangement referred to in subsection (1) must
(a) restrict the use of the information to purposes relevant to an investigation or proceeding in respect of a contravention of the laws of the foreign state that address conduct referred to in paragraph (1)(a); and
(b) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the person responsible for disclosing the information.
Limitation
(3) The only information that may be disclosed under subsection (1) is information obtained in the course of the activities described in paragraph (1)(b).
GENERAL
Mandate
61. The Commission is responsible for the administration of sections 6 to 46.
Appointment of experts, etc.
62. (1) The Commission may, with the approval of the Governor in Council, engage experts or other persons to assist the Commission in any matter.
Remuneration
(2) The experts and other persons engaged by the Commission shall be paid the remuneration, and are entitled to be paid the travel and living expenses incurred in providing assistance to the Commission, as may be fixed by the Governor in Council.
Remuneration and expenses payable out of appropriations
(3) The remuneration and expenses of the experts and other persons engaged by the Commission shall be paid out of money appropriated by Parliament to defray the cost of administering this Act.
Regulations — Governor in Council
63. (1) The Governor in Council may make regulations
(a) specifying the circumstances in which consent is deemed to have been withdrawn for the purposes of section 6;
(b) defining “personal relationship” and “family relationship” for the purposes of paragraph 6(5)(a);
(c) specifying classes of commercial elec- tronic messages, or circumstances in which such messages are sent, for the purposes of paragraph 6(5)(c);
(d) specifying the circumstances mentioned in subsection 10(3) in which consent may be implied;
(e) defining “membership”, “club”, “association” and “voluntary organization” for the purposes of subsection 10(6);
(f) designating provisions whose contravention constitutes a separate contravention in respect of each day during which it continues;
(g) establishing additional factors to be taken into account in determining the amount payable under paragraph 51(1)(b) for each contravention of any of sections 6 to 9; and
(h) generally, for carrying out the purposes and provisions of this Act.
Regulations — Commission
(2) The Commission may make regulations
(a) respecting the form of a request for consent for the purposes of subsections 10(1) and (2);
(b) respecting undertakings under subsection 21(1);
(c) respecting the service of documents required or authorized to be served under this Act including the manner and proof of service and the circumstances under which documents are to be considered to be served; and
(d) prescribing anything that is to be prescribed under this Act.
AMENDMENT TO THIS ACT
64. Subsection 6(7) of this Act is repealed.
R.S., c. C-22
AMENDMENT TO THE CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION ACT
1993, c. 38, s. 85; 2001, c. 34, s. 31(E)
65. Subsection 12(2) of the Canadian Radio-television and Telecommunications Commission Act is replaced by the following:
Telecommunications
(2) The full-time members of the Commission and the Chairperson shall exercise the powers and perform the duties vested in the Commission and the Chairperson, respectively, by the Telecommunications Act or any special Act, as defined in subsection 2(1) of that Act, or by the Electronic Commerce Protection Act.
R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19
AMENDMENTS TO THE COMPETITION ACT
R.S., c. 19 (2nd Supp.), s. 20(3)
66. (1) The definition “record” in subsection 2(1) of the Competition Act is replaced by the following:
“record”
« document »
« document »
“record” means any information that is recorded on any medium and that is capable of being understood by a person or read by a computer system or other device;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“computer system”
« ordinateur »
« ordinateur »
“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code;
“data”
« données »
« données »
“data”, other than in Part III, means signs, signals, symbols or concepts that are being prepared or have been prepared in a form suitable for use in a computer system;
“electronic message”
« message électronique »
« message électronique »
“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message;
“information”
« renseignement »
« renseignement »
“information” includes data;
“locator”
« localisateur »
« localisateur »
“locator” means a name or information used to identify a source of data on a computer system, and includes a URL;
“sender information”
« renseignements sur l’expéditeur »
« renseignements sur l’expéditeur »
“sender information” means the part of an electronic message — including the data relating to source, routing, addressing or signalling — that identifies or purports to identify the sender or the origin of the message;
“subject matter information”
« objet »
« objet »
“subject matter information” means the part of an electronic message that purports to summarize the contents of the message or to give an indication of them;
R.S., c. 19 (2nd Supp.), s. 24
67. Subsection 16(6) of the Act is repealed.
R.S., c. 19 (2nd Supp.), s. 24
68. Subsection 20(2) of the Act is replaced by the following:
Copies
(2) Copies of any records referred to in subsection (1), made by any process of reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.
1999, c. 2, s. 10; 2002, c. 16, s. 5
69. Subsections 33(1) to (7) of the Act are replaced by the following:
Interim injunction
33. (1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an interim injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under Part VI — other than an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53 — or under section 66, pending the commencement or completion of a proceeding under subsection 34(2) or a prosecution against the person, if it appears to the court that
(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence; and
(b) if the offence is committed or continued,
(i) injury to competition that cannot adequately be remedied under any other provision of this Act will result, or
(ii) serious harm is likely to ensue unless the injunction is issued and the balance of convenience favours issuing the injunction.
Injunction — offences involving telecommunication
(1.1) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction forbidding any person named in the application from doing any act or thing that it appears to the court could constitute or be directed toward the commission of an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, if it appears to the court that
(a) the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;
(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and
(c) the balance of convenience favours issuing the injunction.
Injunction against third parties — offences involving telecommunication
(1.2) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, a court may issue an injunction ordering any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to commit or continue an offence under section 52 involving the use of any means of telecommunication or an offence under section 52.01, 52.1 or 53, or to do any act or thing that it appears to the court could prevent the commission or continuation of such an offence, if it appears to the court that
(a) a person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of the offence;
(b) if the offence is committed or continued, serious harm is likely to ensue unless the injunction is issued; and
(c) the balance of convenience favours issuing the injunction.
Notice of application
(2) Subject to subsection (3), at least 48 hours’ notice of an application for an injunction under subsection (1), (1.1) or (1.2) shall be given by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, to each person against whom the injunction is sought.
Ex parte application
(3) If a court to which an application is made under subsection (1), (1.1) or (1.2) is satisfied that subsection (2) cannot reasonably be complied with, or that the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest, it may proceed with the application ex parte but any injunction issued under subsection (1), (1.1) or (1.2) by the court on ex parte application has effect only for the period, not exceeding 10 days, that is specified in the order.
Terms of injunction
(4) An injunction issued under subsection (1), (1.1) or (1.2)
(a) shall be in the terms that the court that issues it considers necessary and sufficient to meet the circumstances of the case; and
(b) subject to subsection (3), has effect for the period that is specified in the order.
Extension or cancellation of injunction
(5) On application by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, or by or on behalf of any person to whom the injunction is directed, on at least 48 hours’ notice of the application to all other parties to the injunction, a court that issues an injunction under subsection (1), (1.1) or (1.2) may, by order,
(a) despite subsections (3) and (4), continue the injunction, with or without modification, for any definite period that is specified in the order; or
(b) revoke the injunction.
Duty of applicant
(6) If an injunction is issued under subsection (1), (1.1) or (1.2), the Attorney General of Canada or the attorney general of a province, as the case may be, shall proceed as expeditiously as possible to institute and conclude any prosecution or proceedings arising out of the acts or things on the basis of which the injunction was issued.
Punishment for disobedience
(7) A court may punish any person who contravenes an injunction issued by it under subsection (1), (1.1) or (1.2) by a fine in the discretion of the court or by imprisonment for a term not exceeding two years.
1999, c. 2, s. 12(1)
70. (1) Subsection 52(1.2) of the Act is replaced by the following:
Permitted representations
(1.2) For greater certainty, in this section and in sections 52.01, 52.1, 74.01, 74.011 and 74.02, the making or sending of a representation includes permitting a representation to be made or sent.
1999, c. 2, s. 12(1)
(2) Paragraph 52(2)(d) of the Act is replaced by the following:
(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
71. The Act is amended by adding the following after section 52:
False or misleading representation — sender or subject matter information
52.01 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.
False or misleading representation — electronic message
(2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.
False or misleading representation — locator
(3) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly make or cause to be made a false or misleading representation in a locator.
Proof of deception not required
(4) For greater certainty, in establishing that any of subsections (1) to (3) was contravened, it is not necessary to prove that any person was deceived or misled.
General impression to be considered
(5) In a prosecution for a contravention of any of subsections (1) to (3), the general impression conveyed by a representation as well as its literal meaning are to be taken into account.
Offence and punishment
(6) Any person who contravenes any of subsections (1) to (3) is guilty of an offence and
(a) liable on conviction on indictment to a fine in the discretion of the court or to imprisonment for a term not exceeding 14 years, or to both; or
(b) liable on summary conviction to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.
Reviewable conduct
(7) Nothing in Part VII.1 is to be read as excluding the application of this section to the making of a representation that constitutes reviewable conduct within the meaning of that Part.
Where application made under Part VII.1
(8) No proceedings may be commenced under this section against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which an order against that person is sought under Part VII.1.
Interpretation
(9) For the purposes of this section,
(a) an electronic message is considered to have been sent once its transmission has been initiated; and
(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.
1999, c. 2, s. 13
72. (1) Subsection 52.1(1) of the Act is replaced by the following:
Definition of “telemarketing”
52.1 (1) In this section, “telemarketing” means the practice of communicating orally by any means of telecommunication for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product.
1999, c. 2, s. 13
(2) Paragraph 52.1(2)(a) of the Act is replaced by the following:
(a) disclosure is made, in a fair and reasonable manner at the beginning of each communication, of the identity of the person on behalf of whom the communication is made, the nature of the business interest or product being promoted and the purposes of the communication;
1999, c. 2, s. 13
(3) Subsection 52.1(5) of the Act is replaced by the following:
Time of disclosure
(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the communication.
73. The Act is amended by adding the following after section 74.01:
False or misleading representation — sender or subject matter information
74.011 (1) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent a false or misleading representation in the sender information or subject matter information of an electronic message.
False or misleading representation — electronic message
(2) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, sends or causes to be sent in an electronic message a representation that is false or misleading in a material respect.
False or misleading representation — locator
(3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, makes or causes to be made a false or misleading representation in a locator.
General impression to be considered
(4) In proceedings under this section, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the person who made the representation engaged in the reviewable conduct.
Interpretation
(5) For the purposes of this section,
(a) an electronic message is considered to have been sent once its transmission has been initiated; and
(b) it is immaterial whether the electronic address to which an electronic message is sent exists or whether an electronic message reaches its intended destination.
1999, c. 2, s. 22
74. Paragraph 74.03(1)(d) of the Act is replaced by the following:
(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
75. The Act is amended by adding the following after section 74.1:
Deduction from administrative monetary penalty
74.101 If a court determines that a person is engaging in or has engaged in conduct that is reviewable under section 74.011 and orders the person to pay an administrative monetary penalty under paragraph 74.1(1)(c), then the court shall deduct from the amount of the penalty that it determines any amount that the person
(a) has been ordered to pay under paragraph 51(1)(b) of the Electronic Commerce Protection Act in respect of the same conduct; or
(b) has agreed in a settlement agreement to pay on account of amounts referred to in paragraph 51(1)(b) of that Act in respect of the same conduct.
1999, c. 2, s. 22; 2002, c. 16, s. 10(1)
76. Subsections 74.11(1) to (4) of the Act are replaced by the following:
Temporary order
74.11 (1) On application by the Commissioner, a court may order a person who it appears to the court is engaging in conduct that is reviewable under this Part not to engage in that conduct or substantially similar reviewable conduct if it appears to the court that
(a) serious harm is likely to ensue unless the order is issued; and
(b) the balance of convenience favours issuing the order.
Temporary order — supply of a product
(1.1) On application by the Commissioner, a court may order any person named in the application to refrain from supplying to another person a product that it appears to the court is or is likely to be used to engage in conduct that is reviewable under this Part, or to do any act or thing that it appears to the court could prevent a person from engaging in such conduct, if it appears to the court that
(a) serious harm is likely to ensue unless the order is issued; and
(b) the balance of convenience favours issuing the order.
Duration
(2) Subject to subsection (5), an order made under subsection (1) or (1.1) has effect, or may be extended on application by the Commissioner, for any period that the court considers sufficient to meet the circumstances of the case.
Notice of application
(3) Subject to subsection (4), at least 48 hours’ notice of an application referred to in subsection (1), (1.1) or (2) shall be given by or on behalf of the Commissioner to the person in respect of whom the order or extension is sought.
Ex parte application
(4) The court may proceed ex parte with an application made under subsection (1) or (1.1) if it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.
1999, c. 2, s. 22
77. Section 74.16 of the Act is replaced by the following:
Where proceedings commenced under section 52 or 52.01
74.16 No application may be made under this Part against a person on the basis of facts that are the same or substantially the same as the facts on the basis of which proceedings have been commenced against that person under section 52 or 52.01.
Explanatory Notes
Canadian Radio-television and Telecommunications Commission Act
Clause 65: Existing text of subsection 12(2):
(2) The full-time members of the Commission and the Chairperson shall exercise the powers and perform the duties vested in the Commission and the Chairperson, respectively, by the Telecommunications Act or by any special Act within the meaning of that Act.
Competition Act
Clause 66: (1) Existing text of the definition:
“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy or portion thereof;
(2) New.
Clause 67: Existing text of subsection 16(6):
(6) In this section, “computer system” and “data” have the meanings set out in subsection 342.1(2) of the Criminal Code.
Clause 68: Existing text of subsection 20(2):
(2) Copies of any records referred to in subsection (1), including copies by any process of photographic reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.
Clause 69: Existing text of subsections 33(1) to (7):
33. (1) A court may, on application by or on behalf of the Attorney General of Canada or the attorney general of a province, issue an interim injunction forbidding any person named in the application from doing any act or thing that it appears to the court may constitute or be directed toward the commission of an offence, pending the commencement or completion of a proceeding under subsection 34(2) or a prosecution against the person, where it appears to the court, that the person has done, is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under Part VI or section 66, and that
(a) if the offence is committed or continued
(i) injury to competition that cannot adequately be remedied under any other provision of this Act will result, or
(ii) a person is likely to suffer, from the commission of the offence, damage for which the person cannot adequately be compensated under any other provision of this Act and that will be substantially greater than any damage that a person named in the application is likely to suffer from an injunction issued under this subsection in the event that it is subsequently found that an offence under Part VI or section 66 has not been committed, was not about to be committed and was not likely to be committed; or
(b) in the case of an offence under section 52.1 or 53, if the offence is committed or continued,
(i) injury to competition will result, or
(ii) one or more persons are likely to suffer damage from the commission of the offence that will be substantially greater than any damage that persons named in the application are likely to suffer from an injunction issued under this subsection in the event that it is subsequently found that an offence under section 52.1 or 53 has not been committed, was not about to be committed and was not likely to be committed.
(1.1) An injunction issued in respect of an offence under section 52.1 or 53 may forbid any person from supplying to another person a product that is or is likely to be used for the commission or continuation of such an offence, where the person being supplied or, in the case of a corporation, any of its officers or directors was previously
(a) convicted of an offence under section 52.1 or 53 or an offence under section 52 in respect of conduct prohibited by section 52.1 or 53; or
(b) punished for the contravention of an order made under this section or section 34 in respect of the commission, continuation or repetition of an offence referred to in paragraph (a).
(2) Subject to subsection (3), at least forty-eight hours notice of an application for an injunction under subsection (1) shall be given by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, to each person against whom the injunction is sought.
(3) Where a court to which an application is made under subsection (1) is satisfied that
(a) subsection (2) cannot reasonably be complied with, or
(b) the urgency of the situation is such that service of notice in accordance with subsection (2) would not be in the public interest,
it may proceed with the application ex parte but any injunction issued under subsection (1) by the court on ex parte application shall have effect only for such period, not exceeding ten days, as is specified in the order.
(4) An injunction issued under subsection (1)
(a) shall be in such terms as the court that issues it considers necessary and sufficient to meet the circumstances of the case; and
(b) subject to subsection (3), shall have effect for such period of time as is specified therein.
(5) A court that issues an injunction under subsection (1), at any time and from time to time on application by or on behalf of the Attorney General of Canada or the attorney general of a province, as the case may be, or by or on behalf of any person to whom the injunction is directed, notice of which application has been given to all other parties thereto, may by order,
(a) notwithstanding subsections (3) and (4), continue the injunction, with or without modification, for such definite period as is stated in the order; or
(b) revoke the injunction.
(6) Where an injunction is issued under subsection (1), the Attorney General of Canada or the attorney general of a province, as the case may be, shall proceed as expeditiously as possible to institute and conclude any prosecution or proceedings arising out of the actions on the basis of which the injunction was issued.
(7) A court may punish any person who contravenes an injunction issued by it under subsection (1) by a fine in the discretion of the court or by imprisonment for a term not exceeding two years.
Clause 70: (1) Existing text of subsection 52(1.2):
(1.2) For greater certainty, a reference to the making of a representation, in this section or in section 52.1, 74.01 or 74.02, includes permitting a representation to be made.
(2) Relevant portion of subsection 52(2):
(2) For the purposes of this section, a representation that is
...
(d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or
...
is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2.1).
Clause 71: New.
Clause 72: (1) Existing text of subsection 52.1(1):
52.1 (1) In this section, “telemarketing” means the practice of using interactive telephone communications for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest.
(2) Relevant portion of subsection 52.1(2):
(2) No person shall engage in telemarketing unless
(a) disclosure is made, in a fair and reasonable manner at the beginning of each telephone communication, of the identity of the person on behalf of whom the communication is made, the nature of the product or business interest being promoted and the purposes of the communication;
(3) Existing text of subsection 52.1(5):
(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a telephone communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the telephone communication.
Clause 73: New.
Clause 74: Relevant portion of subsection 74.03(1):
74.03 (1) For the purposes of sections 74.01 and 74.02, a representation that is
...
(d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or
...
is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2).
Clause 75: New.
Clause 76: Existing text of subsections 74.11(1) to (4):
74.11 (1) Where, on application by the Commissioner, a court finds a strong prima facie case that a person is engaging in reviewable conduct under this Part, the court may order the person not to engage in that conduct or substantially similar reviewable conduct if the court is satisfied that
(a) serious harm is likely to ensue unless the order is issued; and
(b) the balance of convenience favours issuing the order.
(2) Subject to subsection (5), the order has effect, or may be extended on application by the Commissioner, for such period as the court considers necessary and sufficient to meet the circumstances of the case.
(3) Subject to subsection (4), at least forty-eight hours notice of an application referred to in subsection (1) or (2) shall be given by or on behalf of the Commissioner to the person in respect of whom the order or extension is sought.
(4) The court may proceed ex parte with an application made under subsection (1) where it is satisfied that subsection (3) cannot reasonably be complied with or that the urgency of the situation is such that service of notice in accordance with subsection (3) would not be in the public interest.
Clause 77: Existing text of section 74.16:
74.16 No application may be made by the Commissioner for an order under this Part against a person where proceedings have been commenced under section 52 against that person on the basis of the same or substantially the same facts as would be alleged in proceedings under this Part.