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:Notice of discontinuance

49 If an application for an order under paragraph 51(1)(b) is discontinued in respect of a person, the applicant must, without delay, notify everyone who was served with a copy of the application under subsection 47(4) of the discontinuance.

Hearing

Marginal note: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.

Marginal note: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 or engaged in conduct referred to in it that is reviewable under section 74.011 of the Competition Act, 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

    • (i) in the case of a contravention of section 6, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred,

    • (ii) in the case of a contravention of section 7 or 8, $1,000,000 for each day on which a contravention occurred,

    • (iii) subject to subparagraphs (iv) and (v), in the case of a contravention of section 9, $1,000,000 for each contravention of that provision,

    • (iv) in the case of a contravention of section 9 resulting from aiding, inducing or procuring, or causing to be procured, the doing of an act contrary to section 6, and if a contravention of section 6 has resulted, $200 for each such contravention of section 6, not exceeding $1,000,000 for each day on which a contravention of section 6 occurred,

    • (v) in the case of a contravention of section 9 resulting from aiding, inducing or procuring, or causing to be procured, the doing of an act contrary to section 7 or 8, and if a contravention of either of those sections has resulted, $1,000,000 for each day on which a contravention of section 7 or 8, as the case may be, occurred,

    • (vi) in the case of a 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, $1,000,000 for each day on which a contravention occurred, and

    • (vii) in the case of conduct that is reviewable under section 74.011 of the Competition Act, $200 for each occurrence of the conduct, not exceeding $1,000,000 for each day on which the conduct occurred.

• Marginal note:Purpose of order

  (2) The purpose of an order under paragraph (1)(b) is to promote compliance with this Act, the Personal Information Protection and Electronic Documents Act or the Competition Act, as the case may be, and not to punish.

• Marginal note:Factors to be considered

  (3) The court must consider the following factors when it determines the amount payable under paragraph (1)(b) for each contravention or each occurrence of the reviewable conduct:

  • (a) the purpose of the order;

  • (b) the nature and scope of the contravention or reviewable conduct;

  • (c) 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 with respect to any previous conduct that is reviewable under section 74.011 of the Competition Act;

  • (d) 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;

  • (e) any financial benefit that the person or persons obtained from the commission of the contravention or from engaging in the reviewable conduct;

  • (f) the person’s or persons’ ability to pay the total amount payable;

  • (g) whether the applicant has received compensation in connection with the contravention or the reviewable conduct;

  • (h) the factors established by the regulations; and

  • (i) any other relevant factor.

Rules about Contraventions and Reviewable Conduct

Marginal note: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 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 engages in conduct that is reviewable under section 74.011 of the Competition Act, is liable for the contravention or reviewable conduct, as the case may be, if they directed, authorized, assented to, acquiesced in or participated in the commission of that contravention, or engaged in that conduct, whether or not the corporation is proceeded against.

Marginal note:Vicarious liability

53 A person is liable for 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 for conduct that is reviewable under section 74.011 of the Competition Act, that is committed or engaged in, as the case may be, 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

• 54 (1) A person must not be found to have committed 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 to have engaged in conduct that is reviewable under section 74.011 of the Competition Act, if they establish that they exercised due diligence to prevent the contravention or conduct, as the case may be.

• 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 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 in respect of conduct that is reviewable under section 74.011 of the Competition Act, to the extent that it is not inconsistent with this Act or the Personal Information Protection and Electronic Documents Act or the Competition Act, as the case may be.

Marginal note: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) or to have engaged in conduct referred to in an application under subsection 47(1) that is reviewable under section 74.011 of the Competition Act, 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 or reviewable conduct.

Consultation and Disclosure of Information

Marginal note: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.