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 (S.C. 2010, c. 23)

Violations

Marginal note: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.

• Marginal note:Purpose of penalty

  (2) The purpose of a penalty is to promote compliance with this Act and not to punish.

• Marginal note: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 Electronic 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.

• Marginal note: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.

• Marginal note: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

Marginal note:Entry into undertaking

• 21 (1) A person may enter into an undertaking at any time.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

Marginal note: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 a person designated under section 14.

• Marginal note: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 a person designated under section 14, 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

Marginal note:Options

• 24 (1) A person who is served with a notice of violation must, 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.

• Marginal note: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 and do not make representations, in accordance with the notice of violation.

Marginal note:Representations

• 25 (1) If a person makes representations in accordance with the notice, the Commission must 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, may reduce or waive the penalty, or may suspend payment of the penalty subject to any conditions that the Commission considers necessary to ensure compliance with this Act.

• Marginal note:Notice of decision

  (2) The Commission must cause a copy of its decision to be served on the person together with a notice of their right to appeal.

Marginal note:Restraining orders

• 26 (1) 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.

• Marginal note:Notice of decision

  (2) The Commission must cause a copy of its order to be served on the person together with a notice of their right to appeal.

Appeal to Federal Court of Appeal

Marginal note:Appeal to Federal Court of Appeal

• 27 (1) Subject to subsection (2), 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 within 30 days after the day on which the decision or order, as the case may be, is made.

• Marginal note: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, an application for which must be made within 30 days after the day on which the decision or order, as the case may be, is made. The appeal may not be brought later than 30 days after the day on which leave to appeal is granted.

Recovery of Penalties and Other Amounts

Marginal note: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).

• Marginal note: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.

• Marginal note:Receiver General

  (3) The debt is payable to the Receiver General.

Marginal note:Certificate of default

• 29 (1) The Commission may issue a certif­icate certifying the unpaid amount of any debt referred to in subsection 28(1).

• Marginal note: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

Marginal note:For greater certainty

30 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note: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.

Marginal note: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.

Marginal note:Defence

• 33 (1) A person must not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.

• Marginal note: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

Marginal note:Questions of law and fact

• 34 (1) The Commission may decide any question of law or of fact in a proceeding under this Act.

• Marginal note: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.

• Marginal note: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.

Marginal note:Judicial powers

35 In a proceeding under this Act, 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.

Marginal note: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 this Act.

• Marginal note:Presiding member

  (2) If a panel consists of more than one member, the Chairperson must designate one of the members to preside over the panel.

• Marginal note:Decision

  (3) A decision of a majority of the members of a panel is a decision of the panel.

• Marginal note: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.

• Marginal note: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.

Marginal note: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 this Act.

• Marginal note: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.

Marginal note:Evidence

38 A demand under section 15, a notice to prepare or produce documents under section 17, a notice of violation under section 22, a copy of a decision under section 16, 18 or 25 or an order of the Commission under section 26, 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.

Marginal note: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.

Marginal note: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, in the case of a demand, notice or order, or entered into, in the case of an undertaking.

• Marginal note: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.

• Marginal note: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 must 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.