Telecom and Broadcasting Commission Letter addressed to Mr. John Lawford (Public Interest Advocacy Centre)

Ottawa, 22 August 2018

Our reference: 1011-NOC2018-0246

BY EMAIL

Mr. John Lawford
Executive Director and General Counsel
Public Interest Advocacy Centre
jlawford@piac.ca

Re: Telecom and Broadcasting Notice of Consultation CRTC 2018-246, Notice of Hearing, Report regarding the retail sales practices of Canada’s large telecommunications carriers, Procedural Request of the Public Interest Advocacy Centre to clarify privilege for current and former employees of Major TSPs – Response to Procedural Request

Dear Mr. Lawford:

On 17 July 2018, the Public Interest Advocacy Centre (PIAC) filed a procedural request asking that the Commission amend the procedures in the Notice of Consultation CRTC 2018-246 (the Notice) in this proceeding, citing concerns that current and former employees of the service providers who provide evidence in the context of this proceeding could face legal liability or other consequences for such participation.  PIAC claimed that the Commission’s confidentiality procedures were insufficient to protect current and former employees and that confidentiality was inappropriate in any event as it would not promote an open and fair hearing of the evidence.  PIAC requested that the Notice be amended to deem evidence given by current and former employees as privileged. 

On 24 July 2018, TELUS Communications Inc. (TELUS) submitted comments opposing PIAC’s procedural request on the basis that the existing confidentiality procedures are sufficient, granting blanket confidentiality to a class in advance would improperly fetter the Commission’s discretion and the Commission did not have the jurisdiction to bind a court or other tribunal.

On 27 July 2018, Commission staff responded to PIAC’s request to confirm that the Commission has processes in place and others available to it in order to address specific concerns about confidentiality or related issues arising from submitting information on the public record of the proceeding, and that the Commission could consider other measures, such as in camera hearings, if appropriate.

On 30 July 2018, PIAC replied to Commission staff’s letter, requesting a Commission ruling on this matter. By letter dated 1 August 2018, the Forum for Research and Policy in Communications filed comments in support of PIAC’s request. 

On 15 August 2018, the Commission received further correspondence from PIAC on its request setting out details of what information PIAC would give to employees who may be concerned about intervening in the Commission’s process.

The Commission finds that its existing procedures effectively balance any legitimate concerns for the protection of their information of current and former employees of the service providers, or any other intervener in its proceedings, with the public interest in an open and transparent process. These procedures are in keeping with the statutory authority granted to the Commission in the Telecommunications Act and Broadcasting Act, and also with the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (Rules of Procedure).

As noted in paragraphs 42 to 48 of the Notice and also in Broadcasting and Telecom Information Bulletin 2010-961 - Procedures for filing confidential information and requesting its disclosure in Commission proceedings,the Commission has described the process allowing for the fair treatment of sensitive information such as the information contemplated by PIAC in its request.  The Commission has an obligation to make information submitted in a proceeding publicly available to facilitate a fair and transparent process, as set out in section 38 of the Telecommunications Act and section 30 of the Rules of Procedure. This obligation is subject to the exception that certain information may be designated as confidential pursuant to section 39 of the Telecommunications Act and sections 31 to 34 of the Rules of Procedure. 

The Commission will assess applicants’ claims of confidentiality, as well as comments received in response from interested parties. As a result of the assessment, the Commission may uphold the confidentiality request. The Commission may decide to disclose part or all of the information that has been submitted confidentially if disclosure is determined to be in the public interest. Where information is appropriately designated as confidential, an abridged version of the submission(s) provided by the designating party is placed on the record. This provides the fullest degree of transparency contemplated in the relevant statutory authorities by providing abridged submissions and evidence for others to review and comment. In the context of a public hearing, the Commission can conduct parts of the hearing in camera if required. The Commission will use the procedures at its disposal to protect the legitimate confidentiality interests of interveners while ensuring the Commission’s proceeding is fair and transparent. 

Finally, PIAC has not demonstrated that there is any need for the Commission to amend its procedures or issue a revised Notice in the absence of specific individuals’ concerns.

The Commission finds that its existing confidentiality and in camera procedures effectively balance the legitimate concerns of current and former employees of the service providers, as well as any other intervener, with the public interest in an open and transparent process. Consequently, the Commission denies PIAC’s procedural request and finds it is unnecessary to issue a revised Notice.

Yours sincerely,

Claude Doucet
Secretary General

c.c: Distribution list

Public Interest Advocacy Centre
Bell Canada
Bragg Communications Incorporated, carrying on business as Eastlink
Cogeco Connexion Inc.
Northwestel Inc.
Rogers Communications Canada Inc.
Saskatchewan Telecommunications
Shaw Communications Inc.
TBayTel
TekSavvy Solutions Inc.
TELUS Communications Inc.
Videotron Ltd.
Xplornet Communications Inc.
The Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development

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