Marginal note:Deduction from administrative monetary penalty

• 74.101 (1) 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 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 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.

• Marginal note:Restitution and interim injunction

  (2) If a court determines that a person is engaging in or has engaged in conduct that is reviewable under subsection 74.011(2), it may order the person to pay an amount under paragraph 74.1(1)(d), and may issue an interim injunction under section 74.111, as if the conduct were conduct that is reviewable under paragraph 74.01(1)(a).

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note:Definitions

• 7.1 (1) The following definitions apply in this section.

  “access”

  « utiliser »

  “access” means to program, to execute programs on, to communicate with, to store data in, to retrieve data from, or to otherwise make use of any resources, including data or programs on a computer system or a computer network.

  “computer program”

  « programme d’ordinateur »

  “computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.

  “computer system”

  « ordinateur »

  “computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.

  “electronic address”

  « adresse électronique »

  “electronic address” means an address used in connection with

  • (a) an electronic mail account;

  • (b) an instant messaging account; or

  • (c) any similar account.

• Marginal note:Collection of electronic addresses, etc.

  (2) Paragraphs 7(1)(a), (c) and (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

  • (a) the collection of an individual’s electronic address, if the address is collected by the use of a computer program that is designed or marketed primarily for use in generating or searching for, and collecting, electronic addresses; or

  • (b) the use of an individual’s electronic address, if the address is collected by the use of a computer program described in paragraph (a).

• Marginal note:Accessing a computer system to collect personal information, etc.

  (3) Paragraphs 7(1)(a) to (d) and (2)(a) to (c.1) and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

  • (a) the collection of personal information, through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed in contravention of an Act of Parliament; or

  • (b) the use of personal information that is collected in a manner described in paragraph (a).

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.