Commission Letter adressed to Re: 3510395 Canada Inc., operating as Compu.Finder
Ottawa, 28 November 2014
Our reference: 9102-201400302-003
BY COURIER
3510395 Canada Inc., o/a Compu.Finder
707 chemin du Village, Bureau 202
Morin-Heights, Quebec
J0R 1H0
Re: 3510395 Canada Inc., operating as Compu.Finder – Application for review of notice to produce
On 16 September 2014, pursuant to 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 (the Act or Canada’s Anti-Spam Legislation), a designated person for the purpose of section 17 of the Act served a notice to produce (NTP) on 3510395 Canada Inc., operating as Compu.Finder (Compu.Finder).
Pursuant to subsection 18(1) of the Act, Compu.Finder filed an application, received 30 September 2014, requesting that the Commission review the NTP.
Compu.Finder submitted that the NTP should be reviewed because
- the NTP does not contain specific reasons for which the documents at issue are required, and contains no information about allegations that may potentially be formulated against the company, thereby making it difficult for the company to provide an adequate response;
- the documents sought in Part 1, sections (a) to (g) of the NTP are relevant only if a determination has already been made that Compu.Finder’s activities are not subject to an exemption set out in the Electronic Commerce Protection Regulations (CRTC) (the Regulations),Footnote1 and Compu.Finder has never been given a chance to provide arguments regarding the applicability of such exemptions;
- the documents sought in Part 1, sections (h) to (k) of the NTP are relevant only for the purpose of determining a penalty if the company is found to have violated the provisions of the Act, which is not the case; and
- the number of documents sought is considerable, and a substantial effort would be needed to provide a response, which would be practically impossible within the time period provided by the NTP.
The designated person filed representations in response to the application, as contemplated by subsection 18(3) of the Act. In these representations, the designated person
- argued that Compu.Finder’s application revealed a fundamental misunderstanding by the company of the circumstances surrounding the application of section 17 of the Act, in that the documents requested in the NTP were meant to assist the designated person in determining whether there had been non-compliance with the requirements of the Act;
- provided an itemized breakdown of how each item sought was relevant to the investigation into whether violations of sections 6 to 9 of the Act had occurred as a result of certain activities undertaken for the benefit of Compu.Finder;
- stated that no determination had been made with respect to the application of possible exemptions to the Act, and that the NTP does not preclude Compu.Finder from submitting documents with a view to establishing the application of any exemptions;
- argued that the corporate and financial information sought was relevant to determining which persons could be responsible for potential contraventions of sections 6 or 9 of the Act; and
- argued that all of the documents sought should already exist within the control of Compu.Finder in the ordinary course of its business.
Commission’s analysis and determinations
After reviewing the NTP and considering Compu.Finder’s and the designated person’s representations, the Commission considers that the documents sought in Part 1, sections (a) to (g) of the NTP will provide information relevant to the designated person’s investigation. Specifically, the Commission notes that these sections seek templates for promotional emails, contact lists of potential email recipients, documents tracking the consent of potential recipients, as well as policies and procedures for tracking consent and for processing unsubscribe requests. The Commission considers that these documents will assist the designated person in determining whether any commercial electronic messages have been sent which violate the requirements or prohibitions set out in section 6 of the Act.
The Commission further considers that the documents and financial information sought in Part 1, sections (h) to (k) of the NTP relate to Compu.Finder’s relationships with third parties and with its directors, and are thus of assistance in determining whether any person may have aided, induced, procured, or caused to be procured any violation of section 6 that may have occurred, in contravention of section 9 of the Act.
Accordingly, the Commission finds that the objectives of the NTP are consistent with the purposes for which an NTP may be issued, pursuant to section 17(2) of the Act.
The Commission considers that the documents identified in the NTP, including records of correspondence, records of relationships with consumers, records of relationships with other businesses, and financial information, are documents which can reasonably be expected to be generated in the ordinary course of business and can be presumed to be in Compu.Finder’s control.
The Commission notes that Compu.Finder has made no submissions with respect to whether or not these documents exist, nor has it provided arguments to support its assertion that the timeline set out in the NTP is unreasonable.
The Commission notes that the onus is on the party making the application to demonstrate that the NTP is unreasonable, and that merely stating that a substantial effort would be required does not sufficiently discharge this burden.
The Commission notes that the NTP does not make any determination with respect to contraventions of the Act, and that it is not necessary that such determinations be made prior to the issuance of the NTP. The Commission further notes that the NTP is an investigative tool which requires recipients to submit to the designated person information which may assist in making determinations with respect to contraventions of the Act, including the applicability of relevant exemptions.
The Commission considers that the NTP does not preclude or limit Compu.Finder’s ability to submit to the designated person additional information regarding exemptions or possible defences when producing the required documents.
The Commission further notes that in the event that the designated person issues a notice of violation, Compu.Finder will have a further right, pursuant to paragraph 22(2)(d) of the Act, to provide representations to the Commission in respect of that notice before the Commission makes a final determination. These representations may include arguments with respect to the applicability of relevant exemptions or defences.
In light of the above, the Commission finds that the requirement to prepare and produce the documents specified in the NTP by the stated deadline is not unreasonable in the circumstances. Therefore, the Commission denies Compu.Finder’s application, and confirms the requirement to produce that was served on the company on 16 September 2014.
The Commission specifies that the required documents must be produced under the following conditions, which replace those described in Part 3 of the NTP:
The documents must be produced in writing and include the file number mentioned above. The documents, marked as “Confidential,” are to be sent to the attention of Linda Ko by any of the means authorized by the Commission below:
By mail to the following address:
Canadian Radio-television and Telecommunications Commission (CRTC)
Compliance & Enforcement Sector
Electronic Commerce Enforcement Division
Les Terrasses de la Chaudière
1 Promenade du Portage
Gatineau, Quebec J8X 4B1
By email to the following address:
The recipient has to receive the documents no later than 12 December 2014 at 16:00 Eastern Standard Time.Footnote2
This decision is served on Compu.Finder by the receipt of a copy of this decision, in accordance with subsection 18(5) of the Act.
The Commission authorizes the following method of service to serve this decision on Compu.Finder:
Email with delivery receipt (to be followed by courier with signed postal acknowledgment of receipt, or registered mail)
The email is considered to have been served on the date it was sent.
Pursuant to subsection 18(5) and section 27 of the Act, Compu.Finder has the right to appeal this decision by bringing an appeal in the Federal Court of Appeal within 30 days after the day on which the decision is made. An appeal on a question of fact 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 is made. An appeal with leave may not be brought later than 30 days after the day on which leave to appeal is granted.
Secretary General
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