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)
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Act current to 2024-11-26 and last amended on 2023-04-27. Previous Versions
Administrative Monetary Penalties (continued)
Determination of Responsibility (continued)
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.
Injunction
Marginal note: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.
Marginal note: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
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Defence
(2) A person must 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
Marginal note: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 or who they allege are liable for the contravention or reviewable conduct by reason of section 52 or 53.
Marginal note: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.
Marginal note: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, 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.
Marginal note:Notice
(4) The applicant must, 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 section 74.011 of the Competition Act and on the Privacy Commissioner if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.
Marginal note: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.
Marginal note:Certification by Commission
(2) At the written request of a person against whom an order under paragraph 51(1)(b) is sought, the Commission must, within 10 business 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 liable for the contravention by virtue of section 52 or 53 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.
Marginal note: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.
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