ARCHIVED - Telecom Commission Letter - 8638-C12-200719099

Letter

File No: 8638-C12-200719099

Ottawa, November 7, 2008

BY FAX
Commissioner for Complaints for Telecommunications Services Inc.
1-877-782-2929

BY EMAIL
Public Interest Advocacy Centre
piac@piac.ca

Union des consommateurs
latreille@consommateur.qc.ca

Re: Amended constating documents filed by the Commissioner for Complaints for Telecommunications Services Inc. pursuant to Telecom Decision 2007-130

1. In Establishment of an independent telecommunications consumer agency , Telecom Decision CRTC 2007-130, 20 December 2007 (Telecom Decision 2007-130), the Commission approved the structure and mandate of the Commissioner for Complaints for Telecommunications Services Inc. (CCTS) on the condition that all applicable constating documents [1] were amended to reflect the Commission's determinations in that Decision. [2]
   
   
2. On 5 August 2008 , the CCTS filed copies of its amended constating documents pursuant to paragraph 120 of Telecom Decision 2007-130. The CCTS indicated that these documents had been approved by its Board of Directors and reflected the implementation of the determinations set out in Telecom Decision 2007-130, as varied by Applications to review and vary certain determinations in Telecom Decision 2007-130 regarding the establishment of an independent telecommunications consumer agency , Telecom Decision CRTC 2008-46, 30 May 2008 (Telecom Decision 2008-46).
   
   
3. By letter dated 5 September 2008 , l'Union des consommateurs (l'Union) objected to the constating documents filed by the CCTS. Specifically, l'Union indicated that the wording of clause 12.3 of the CCTS's procedural code regarding remedies did not respect the Commission's decisions since it gave the CCTS Commissioner the ability to apply or not apply pre-existing contractual limitations of liability. L'Union submitted that the Commission should not grant final approval to the structure and mandate of the CCTS until it produced revised constating documents that were consistent with the Commission's decisions.
   
   
4. By letter dated 11 September 2008 , the Public Interest Advocacy Centre (PIAC), on behalf of the Consumers Council of Canada and the National Anti-Poverty Organization, also objected to the constating documents filed by the CCTS. PIAC indicated that while the wording of clause 12.3 of the CCTS's procedural code did not require the CCTS Commissioner to apply contractual limitations of liability to binding decisions, it allowed the CCTS Commissioner the discretion to apply them in a potentially inappropriate manner. In PIAC's view, Telecom Decision 2008-46 reaffirmed that limitation of liability clauses would not apply to direct damages, while allowing for their application in circumstances involving consequential damages. PIAC indicated that the Commission should convene a public proceeding for the consideration of the adequacy of the constating documents prior to any final Commission approval.
   
   
5. By letter dated 19 September 2008 , the Members of the CCTS [3] reiterated that the constating documents submitted by the CCTS reflected the determinations set out in Telecom Decision 2007-130, as varied by Telecom Decision 2008-46, and therefore did not expect any further approvals or proceedings regarding the CCTS to be necessary.  
   
   
6. Clause 12.3 of the CCTS's procedural code reads as follows:  
   
   In rendering a decision, where such decision is in respect of a monetary remedy for Direct Damages, the Commissioner may, where appropriate in light of the provisions of the applicable contract and on a complaint by complaint basis, exercise his or her discretion whether or not to apply any limitations of liability contained in the applicable contract. For purposes of this Code, "Direct Damages" means losses directly and actually incurred by the Complainant, as demonstrated by the Complainant to the reasonable satisfaction of the Commissioner, and excludes indirect, incidental, and consequential damages.
   
   
7. The Commission notes that this clause allows the CCTS Commissioner the option of not applying limitations of liability in binding decisions, which is precisely what the Commission required in Telecom Decision 2007-130. The Commission further notes that its intention in Telecom Decision 2008-46 was, among other things, to ensure that the CCTS Commissioner is not constrained by limitation of liability clauses in specific relation to direct damages. Therefore, the Commission considers that the constating documents filed by the CCTS are consistent with Telecom Decision 2007-130, as varied by Telecom Decision 2008-46.
   
   
8.   The Commission has reviewed the revised constating documents submitted by the CCTS, and finds that all the conditions of approval established in Telecom Decision 2007-130, as varied by Telecom Decision 2008-46, have been met as of the date the constating documents were filed.  
   
   
9. In light of the above, the Commission considers that no further process is necessary in regard to revisions to the CCTS's constating documents.

Yours sincerely,

ORIGINAL SIGNED BY:

Robert A. Morin

Secretary General

c.c.:   Interested Parties to Telecom Public Notice 2007-16