ARCHIVED - Compliance and Enforcement Commission Letter adressed to Sharon Rapanos

Ottawa, 14 August 2015

Our reference: 9102-2014-00313-008

BY COURIER

Sharon Rapanos
1 Goodwin Avenue
Bowmanville, Ontario
L1C 4Z4

Re:  Notice to Produce in File No. 9102-2014-00313-008 - Request for review from Sharon Rapanos

On 8 June 2015, 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 Sharon Rapanos (the Applicant) of Bowmanville, Ontario.

Part 1 of the NTP required the Applicant to provide information with respect to the use of the Bell Canada Internet connection provided to her home. In particular, it sought

• the name(s) of any person or persons who had access to that connection between 1 July 2014 and 8 June 2015;
• a list of any commercial activities performed using that connection, and any business names associated with those activities;
• a list of email recipients to whom commercial electronic messages (CEMs) associated with those activities were sent, including information about the type of consent or the nature of the relationship relied upon to send such messages; and
• an account of whether and how a list of specific domain names, third-party organizations, and named individuals were involved with the sending of such messages.

Pursuant to subsection 18(1) of the Act, the Applicant requested by facsimile transmission, received 16 June 2015, that the Commission review the NTP. The Applicant submitted that requirements of the NTP were unreasonable in the circumstances because

• she accepts boarders at her home who have access to the Internet connection; and
• she has a wireless guest router which provides access to the Internet connection without requiring a password.

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

• the Applicant did not explain or provide information as to why the factors she raised would prevent her from complying with the NTP;
• the NTP only requires the Applicant to provide information that is within her possession or control;
• the accessibility of the Applicant’s Internet connection does not preclude her from responding to the NTP with whatever information she has or is aware of, or from identifying that she does not have any information; and
• the various requirements of the NTP were reasonable as they would assist the investigator with making determinations as to whether sections 6 or 9 of the Act had been contravened.

Commission’s analysis and determinations

In any proceeding to review an NTP, there is a burden on the person bringing the application to provide sufficient particulars, evidence, or other information to support their arguments and requested relief. An application brought on the basis that an NTP is unreasonable should inform the Commission as to what, specifically, makes it unreasonable in the circumstances, and should assist the Commission in determining what steps, if any, should be taken to remedy the proposed defects. This obligation is clearly stated in Part 5 of the NTP.

The Applicant’s arguments, however, are limited to a statement that she takes in boarders, and has an unprotected Internet connection. The Applicant did not describe how these circumstances relate to the production requirements, and it is not apparent from the application whether the intent is to challenge the NTP in whole or in part, or what specific relief is requested from the Commission.

As set out in the NTP, the Applicant is required to respond only with information based on data, information, or documents that are within her possession or control. Even if, based on the circumstances described in the application, the Applicant is unable to account for every individual who may have had access to her home’s Internet connection, she has not indicated any reason why it would not be reasonable for her to respond to the NTP with respect to any relevant use of that connection she does have knowledge of. These circumstances also do not affect the Applicant’s ability to respond in respect of her own personal involvement, if any, in the sending of CEMs.

Even if the Applicant is unable to account for every person who may have accessed her unsecured guest router, it is not unreasonable to expect that she might have some memory of or records reflecting individuals who have boarded at her home in exchange for rent, within the period set out in the NTP.

In addition to the insufficiency of the arguments brought by the Applicant, the Commission also considers that, in general, the requirements of the NTP are not unreasonable. The information sought relates to CEMs that the designated person appears to believe were sent using the Internet connection at the Applicant’s home, and the information sought from the Applicant is thus likely to assist the designated person in determining whether section 6 or section 9 of the Act has been contravened, and by whom.

In light of the above, the Commission considers that the Applicant has not demonstrated that the requirement to prepare and produce the documents specified in the NTP by the stated deadline is unreasonable in the circumstances. Therefore, the Commission denies the application, and confirms the requirement to produce that was served on the Applicant on 8 June 2015.

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 Maxime Brassard 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:

lcap-casl-inv@crtc.gc.ca
The recipient has to receive the documents no later than 21 August 2015 at 16:00 Eastern Time.^Footnote1

This decision is served on the Applicant by the receipt of a copy of this decision, in accordance with subsection 18(5) of the Act.

The following method of service to serve this decision is authorized:

Courier with signed postal acknowledgement of receipt

Pursuant to subsection 18(5) and section 27 of the Act, the Applicant 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:

2015-08-14