In the pre-election activity in Canada's Parliament prior to the November 28, non-confidence vote, one "last minute" enactment was Bill C-37 which amended to the Telecommunications Act ("Act") to facilitate a national do-not-call list for telemarketing. The Canadian Radio and Telecommunications Commission ("CRTC" or "Commission") has been given the power to impose fines for telemarketing calls to numbers on the do-not-call list on a per call basis of up to $15,000 for corporations. Bill C-37 received Royal Assent on November 25, 2005, but comes into force on a day to be fixed by the Governor in Council. As of November 30, 2005, it was not yet in force.
Bill C-37 provides the legislative framework for a national do-not-call registry and gives the CRTC the power to administer information systems for a national do-not-call service (section 41.2), the operation of which may be delegated to a third party (section 41.3).
The regime contemplated by the legislation will permit exempted individuals or organizations, as set out in section 41.7(1), to make unsolicited calls until such time as the recipient requests placement on that individual's or organization's do-not-call list.
Section 41.7 contains the exemptions that permit unsolicited telecommunications by or on behalf of:
- a registered charity within the meaning of section 248(1) of the Income Tax Act;
- a political party that is a registered party as defined in subsection 2(1) of the Canada Elections Act or that is registered under provincial law for the purposes of provincial or municipal elections;
- a nomination contestant, leadership contestant or candidate of a political party; or
- an association of members of a political party.
Most importantly for businesses in Canada, communications made to a person with whom the caller has an existing business relationship and who has not made a do-not-call request of that caller are permitted. Telephone calls in connection with public surveys are also permitted. The terms "candidate," "leadership contestant" and "nomination contestant" and the key definition, "existing business relationship" are defined in s. 41.7(2).
Section 41.7 requires exempted callers to identify the purpose of their call and to state the person or organization on whose behalf the call is being made (s. 41.7(3)). Section 41.7(4) requires all exempt persons and organizations to maintain their own do-not-call list and to ensure that no call is made to a person who has asked to be placed on that list.
New Enforcement Provisions
Part V of the Telecommunications Act has been amended by adding a section entitled "Administrative Monetary Penalties" that permits the Commission to levy fines as an enforcement measure. The new section also gives the Commission the power to delegate various administrative, investigative, inspection and enforcement powers to a third party.
Each telemarketing call to a number registered on the do-not-call list is a violation of section 41 of the Telecommunications Act (s. 72.01) and may be subject to an administrative monetary penalty for individuals of $1,500 per offending call or, for corporations, $15,000 per offending call.
Search powers are also provided insofar as authorized persons may enter and inspect any place (s. 72.06(1)) upon reasonable grounds, where there is information relevant to the enforcement of section 41. If the place in question is a residence, an ex parte warrant is needed before entry (s.72.06(2)).
The Commission may designate persons for the administration of telemarketing regulations under section 41 of the Act, who may request from telemarketers periodic reports or other forms of information necessary for the administration of the Act (s. 72.06).
Due diligence (s. 72.1(1)) and justification (s. 72.1(2)) are two defences available against any allegation that s. 41 was violated. Due diligence here means that the individual or corporation took all reasonable efforts to ensure that the actions taken were within the law. Similarly, all common-law rules and principles governing justification or excuse are available unless they are specifically excluded by the Telecommunications Act or inconsistent with the Act.
Where a defence is raised, the CRTC must decide, on a balance of probabilities, whether the violation was committed (s. 72.08(2)) and, if it finds a violation to have occurred, may impose the penalty outlined in s. 72.01. There is a two-year limitation period - after the incident became known to the Commission - for the Commission to initiate an action concerning a violation (s. 72.12(1)), and a five-year time limitation on the right of the CRTC to commence an action to force payment of a fine (s. 72.09(2)).
Parliament must undertake a review of the administration and operation of the national do-not-call list three years after the bill comes into force.
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