Compliance and Enforcement Commission Letter adressed to Kellogg Canada Inc.
Ottawa, 10 April 2015
Our reference: 9102-2014-00324-001
BY EMAIL
Kellogg Canada Inc.
5350 Creekbank Rd.
Mississauga, Ontario
L4W 5S1
Re: Kellogg Canada Inc. – Application for review of notice to produce
On 17 December 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 Kellogg Canada Inc. (Kellogg).
Part 1, section (d) of the NTP required Kellogg to produce documents or copies of documents that set out the name and contact information of all parties that provided, for or on behalf of Kellogg, services relating to the generation of a list of email recipients to which certain commercial electronic messages were sent from 1 July 2014 to 1 November 2014. Section (e) required Kellogg to provide various documents relating to agreements with third parties that provided, for or on behalf of Kellogg, services in relation to the sending of the commercial electronic messages at issue.
Pursuant to subsection 18(1) of the Act, Kellogg filed an application, received 30 January 2015, requesting that the Commission review the NTP. Kellogg submitted that the request to produce the documents identified in Part 1, sections (d) and (e) of the NTP was unreasonable and should be excluded.
In support of its position that the NTP should be reviewed, Kellogg argued that
- the NTP exceeds the scope of section 17(2) of the Act, because documents relating to Kellogg’s business relationship with service providers are not relevant to a determination of whether Kellogg has sent emails in breach of the Act;
- conditions in the NTP that are set out to prevent disclosure of its contents or of the existence of the NTP itself, pursuant to section 17(4) of the Act, conflict with the company’s contractual confidentiality obligations with third-party service providers because these obligations prevent the company from either seeking the consent of the third parties to release that information or notifying them in the event of compelled disclosure; and
- there is no compelling public interest served by providing the Commission with the requested information relating to the company’s confidential business relationships, and such requests, absent cause being identified to the organization under investigation, exceed Parliament’s intended grant of authority under section 17 of the Act.
The designated person filed representations in response to the application, pursuant to subsection 18(3) of the Act. In these representations, the designated person argued that
- section 17(2) of the Act does not require that the person being asked to produce documents be the subject of an investigation, and that the NTP was issued with a view to the conduct of Kellogg, as well as to the conduct of any parties providing services on Kellogg’s behalf;
- Kellogg’s contractual obligations with third parties do not supersede the Act, under which production of the specified documents is a requirement;
- non-compliance with an NTP constitutes an offence;
- the conditions prohibiting disclosure to the third parties in question are reasonable and justified, based on the risk of evidence becoming lost or damaged if those parties become aware that they may be under investigation; and
- there is a distinction between an NTP, which is an investigative tool to assist in verifying compliance with the Act, and a notice of violation, which sets out alleged violations of any of sections 6 to 9 of the Act, and that the former does not require the investigator to disclose evidence or details related to possible violations.
Commission’s analysis and determinations
After reviewing the NTP and considering Kellogg’s and the designated person’s representations, the Commission considers that the documents sought in Part 1, sections (d) and (e) of the NTP will provide information relevant to the designated person’s investigation.
The Commission considers that if the investigator determines that commercial electronic messages that were not in compliance with the Act were sent, the requested documents will assist the designated person in determining which person or persons sent those messages, or caused or permitted them to be sent, contrary to section 6 of the Act, and whether any person aided, induced, procured, or caused to be procured the doing of any such prohibited act, contrary to section 9 of the Act.
The Commission considers that requiring a party engaged in regulated conduct to disclose information about its dealings with other parties providing services that relate to that conduct does not fall outside the intended scope of section 17 of the Act. Accordingly, the Commission finds that the requirements 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 also notes that the Act does not require that the recipient of an NTP be a subject, or be the only subject, of the underlying investigation or inquiry, nor does it require that the NTP disclose any particulars of the investigation or any underlying complaints. In the event that the designated person concludes that any of sections 6 to 9 of the Act has been violated and chooses to issue a notice of violation, the person to whom that notice is issued will have a right, pursuant to paragraph 22(2)(d) of the Act, to provide representations to the Commission regarding such particulars before the Commission makes a final determination.
With respect to the non-disclosure requirements set out in Part 4 of the NTP, the Commission considers that in general, private contractual agreements between parties do not negate legislative requirements or act as a shield from regulatory scrutiny.
The Commission considers that persons participating in marketing activities often engage other organizations to provide marketing or related services on their behalf in the ordinary course of business. The relationships between these organizations and their clients will often be relevant to verifying compliance with or carrying out enforcement of the Act, for the reasons set out above. If the Commission were to allow the simple existence of terms of confidentiality in private contracts of this nature to establish unreasonableness, the overall efficacy of the NTP as an investigative tool would be significantly diminished.
In light of the above, the Commission considers 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 Kellogg’s application, and confirms the requirement to produce that was served on the company on 17 December 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 April Gougeon 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 April 17 2015 at 16:00 Eastern Time.Footnote1
This decision is served on Kellogg 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 Kellogg:
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, Kellogg 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
- Date modified: