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)

Marginal note:Examination of complaint by Commissioner

• 12. (1) The Commissioner shall conduct an investigation in respect of a complaint, unless the Commissioner is of the opinion that

  • (a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available;

  • (b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province; or

  • (c) the complaint was not filed within a reasonable period after the day on which the subject matter of the complaint arose.

• Marginal note:Exception

  (2) Despite subsection (1), the Commissioner is not required to conduct an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of 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 or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.

• Marginal note:Notification

  (3) The Commissioner shall notify the complainant and the organization that the Commissioner will not investigate the complaint or any act alleged in the complaint and give reasons.

• Marginal note:Compelling reasons

  (4) The Commissioner may reconsider a decision not to investigate under subsection (1), if the Commissioner is satisfied that the complainant has established that there are compelling reasons to investigate.

Marginal note:Powers of Commissioner

• 12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

  • (a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;

  • (b) administer oaths;

  • (c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

  • (d) at any reasonable time, enter any premises, other than a dwelling-house, occupied by an organization on satisfying any security requirements of the organization relating to the premises;

  • (e) converse in private with any person in any premises entered under paragraph (d) and otherwise carry out in those premises any inquiries that the Commissioner sees fit; and

  • (f) examine or obtain copies of or extracts from records found in any premises entered under paragraph (d) that contain any matter relevant to the investigation.

• Marginal note:Dispute resolution mechanisms

  (2) The Commissioner may attempt to resolve complaints by means of dispute resolution mechanisms such as mediation and conciliation.

• Marginal note:Delegation

  (3) The Commissioner may delegate any of the powers set out in subsection (1) or (2).

• Marginal note:Return of records

  (4) The Commissioner or the delegate shall return to a person or an organization any record or thing that they produced under this section within 10 days after they make a request to the Commissioner or the delegate, but nothing precludes the Commissioner or the delegate from again requiring that the record or thing be produced.

• Marginal note:Certificate of delegation

  (5) Any person to whom powers set out in subsection (1) are delegated shall be given a certificate of the delegation and the delegate shall produce the certificate, on request, to the person in charge of any premises to be entered under paragraph (1)(d).

Discontinuance of Investigation

Marginal note:Reasons

• 12.2 (1) The Commissioner may discontinue the investigation of a complaint if the Commissioner is of the opinion that

  • (a) there is insufficient evidence to pursue the investigation;

  • (b) the complaint is trivial, frivolous or vexatious or is made in bad faith;

  • (c) the organization has provided a fair and reasonable response to the complaint;

  • (d) the matter is already the object of an ongoing investigation under this Part;

  • (e) the matter has already been the subject of a report by the Commissioner;

  • (f) any of the circumstances mentioned in paragraph 12(1)(a), (b) or (c) apply; or

  • (g) the matter is being or has already been addressed under a procedure referred to in paragraph 12(1)(a) or (b).

• Marginal note:Other reason

  (2) The Commissioner may discontinue an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of 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 or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.

• Marginal note:Notification

  (3) The Commissioner shall notify the complainant and the organization that the investigation has been discontinued and give reasons.

Marginal note:Application

• 14. (1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10.

• Marginal note:Time of application

  (2) A complainant must make an application within 45 days after the report or notification is sent or within any further time that the Court may, either before or after the expiry of those 45 days, allow.