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Telecom Notice of Consultation CRTC 2023-45

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Ottawa, 1 March 2023

Public record: 1011-NOC2023-0045

Show cause proceeding and call for comments

A telecommunications service provider that has failed to become a participant in the Commission for Complaints for Telecom-television Services Inc.

Deadline for submission of interventions: 17 April 2023

Deadline for submission of replies: 2 May 2023

[Submit an intervention or view related documents]

Summary

The Commission requires all telecommunications service providers (TSPs) that offer services within the scope of the Commission for Complaints for Telecom-television Services Inc.’s (CCTS) mandate to be participants in the CCTS (the CCTS participation requirement).

As of the date of this notice, it appears that Optitel Mobile Inc. (Optitel Mobile) has not become a participant as required.

The Commission therefore initiates a proceeding in which it requires

Further, if Optitel Mobile is found to have committed a violation,

The CCTS provides a valuable service to Canadians, helping consumers resolve disputes with their TSP and television service providers. Given the important role played by the CCTS, the Commission considers non-compliance with the CCTS participation requirement to be a serious matter. In the event that TSP violations of the CCTS participation requirement are found, the Commission intends to pursue compliance with the CCTS participation requirement by all available means, including registering any AMP-related debts and mandatory orders in the Federal Court and initiating proceedings to enforce them.

Background

  1. The Commission for Complaints for Telecom-television Services Inc. (CCTS)Footnote 1 is an independent body that assists Canadians who have been unable to resolve disputes regarding forborne telecommunications services with their service providers. The CCTS is an integral component of a deregulated telecommunications market and provides a valuable service to Canadian consumers.
  2. To ensure that Canadian consumers have recourse when they are unable to resolve complaints with their telecommunications service provider (TSP), the Commission requires all TSPs that provide services within the scope of the CCTS’s mandate to be participants in the CCTS.
  3. Specifically, in Broadcasting and Telecom Regulatory Policy 2016-102, the Commission required, pursuant to sections 24 (regarding carriers) and 24.1 (regarding non-carriers) of the Telecommunications Act (the Act), that as a condition of offering or providing telecommunications services, every person who is not a participant in the CCTS as of 17 March 2016, and continues to offer services within the scope of the CCTS’s mandate, must become a participant in the CCTS commencing 30 calendar days after the date on which the CCTS informs the person that it has received a complaint related to telecommunications services provided by that person that fall within the scope of the CCTS’s mandate (the CCTS participation requirement).
  4. To become a participant in the CCTS, a TSP must sign the CCTS Participation Agreement, a contract in which the participant agrees, among other things, to abide by the Participation Agreement and the CCTS’s By-laws, to be bound by and observe the CCTS’s Procedural Code, to submit to and honour remedies levied by the CCTS, and to cooperate in good faith with any investigation conducted by the CCTS.
  5. Since 2014, the Act has included a general administrative monetary penalties (AMPs) regime,Footnote 2 under which the Commission is empowered to impose AMPs on persons who contravene the Act or a regulation or decision made by the Commission under the Act. The purpose of a penalty imposed under this regime is to promote compliance with the Act and with such regulations and decisions, not to punish.
  6. The Commission has set out its approach under the general AMPs regime in Compliance and Enforcement and Telecom Information Bulletin 2015-111.

Show cause proceeding

  1. On 3 March 2022, the CCTS received an in-scope complaint against Optitel Mobile Inc. (Optitel Mobile), a non-carrier reseller of communication services, triggering the requirement that it become a TSP participant in the CCTS. Following notification by the CCTS, Optitel Mobile was required to become a participant by 12 May 2022. Optitel Mobile failed to do so, and as a result, on 30 September 2022, the CCTS referred Optitel Mobile to the Commission for enforcement. The CCTS also identified Optitel Mobile’s director as Robert Trudeau.Footnote 3 As of the date of this notice, Optitel Mobile has not become a participant.
  2. The CCTS has provided the Commission with evidence detailing its attempts to notify Optitel Mobile of its obligations and to secure its participation. Upon the CCTS’s referral, Commission staff undertook further activities to identify and validate the existence of the corporation that operates Optitel Mobile and the director who controls it. These activities included searching publicly accessible databases, such as federal and provincial corporate records databases, for information regarding the corporation and its director and officers. Commission staff also attempted to communicate with Optitel Mobile and Robert Trudeau to explain their obligations. The nature and timing of those communications are set out in Appendix 1 to this notice.
  3. The Commission adds to the record of this proceeding the evidence received from the CCTS and the evidence collected by Commission staff to date. The Commission intends to rely on this evidence when making its determinations on the matters set out in this notice. Optitel Mobile and Robert Trudeau are to file any evidence and make submissions that support their respective positions with regard to the issues discussed below, which will also be considered by the Commission in making its determinations. If no such information is filed, the Commission may draw adverse inferences appropriate in the circumstances of this case.
  4. The public record of the proceeding can be found on the Commission’s website at www.crtc.gc.ca or by using the public record number provided above. Where the CCTS has designated information as confidential, an abridged version of the document containing the confidential information has been added to the public record of the file.
  5. The Commission hereby launches a show cause proceeding to determine whether Optitel Mobile has committed violations of the Act and, if so, to determine the appropriate enforcement measures in the circumstances.

Has a violation been committed?

  1. Pursuant to section 24.1 of the Act, as a condition of offering or providing telecommunications services, a TSP is required to become a participant in the CCTS within 30 calendar days after it has been informed by the CCTS that it has received a complaint related to telecommunications services it has provided that fall within the scope of the CCTS’s mandate.
  2. The CCTS initially received one in-scope complaint regarding Optitel Mobile and subsequently notified the company and Robert Trudeau of that complaint. The CCTS has since received a second in-scope complaint related to Optitel Mobile. Both of these complaints remain unresolved. As shown in Appendix 1 to this notice, the time frame within which Optitel Mobile was required to join the CCTS has expired. It appears that by failing to join the CCTS within 30 days of receiving notification of an in-scope complaint from the CCTS, Optitel Mobile has been in non-compliance with the CCTS participation requirement imposed pursuant to section 24.1 of the Act from that date to the date of the present notice (the relevant time period).
  3. Further, it appears that Optitel Mobile continues to offer telecommunications services within the scope of the CCTS’s mandate. As of the date of this notice, Optitel Mobile’s website continues to promote in-scope telecommunications services.
  4. Pursuant to section 72.001 of the Act, every contravention of a provision of the Act and every contravention of a regulation or decision made by the Commission under the Act constitutes a violation, and the person who commits the violation is liable,
    • in the case of an individual, to an administrative monetary penalty not exceeding $25,000 and, for a subsequent contravention, a penalty not exceeding $50,000; or,
    • in any other case, to an administrative monetary penalty not exceeding $10,000,000 and, for a subsequent contravention, a penalty not exceeding $15,000,000.
  5. In light of the above, the Commission directs Optitel Mobile to show cause why the Commission should not find that it committed a violation under section 72.001 of the Act during the relevant time period by contravening the CCTS participation requirement.

If a violation is found to have been committed, should Robert Trudeau be held liable?

  1. Section 72.008 of the Act provides that an officer or director of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in, or participated in the commission of the violation.
  2. Information obtained from corporate records searches, including from publicly accessible databases, appears to demonstrate that Optitel Mobile’s only director is Robert Trudeau.
  3. CCTS staff communicated with Robert Trudeau by phone and in writing to explain the CCTS participation requirement and the potential consequences of non-participation in the CCTS. Commission staff also attempted to communicate with Robert Trudeau by phone and in writing, without success.
  4. Accordingly, there is evidence that Robert Trudeau is aware of the CCTS participation requirement and has failed to ensure the compliance of the corporation they direct. Furthermore, despite the correspondence between the CCTS and Robert Trudeau and, later, between Commission staff and Robert Trudeau, there is no indication that Robert Trudeau would be unable, in their capacity as a director, to ensure the compliance of their corporation with the CCTS participation requirement. On the basis of the evidence on the record at this time, it appears that Robert Trudeau may have directed, authorized, assented to, acquiesced in, or participated in the commission of the violation and that they might consequently be held liable for the commission of a violation by Optitel Mobile, in accordance with section 72.008 of the Act.
  5. In light of the above, the Commission directs Robert Trudeau to show cause why they should not be liable for any violation found to have been committed by the company that they direct.

If a violation is found to have been committed, what are the appropriate enforcement measures?

Imposition of AMPs
  1. Section 72.002 of the Act sets out the factors that the Commission must take into account in determining the appropriate amount of an AMP:
    • the nature and scope of the violation
    • the person’s history of compliance
    • any benefit the person obtained from the commission of the violation
    • the person’s ability to pay
    • factors established by any regulations
    • any other relevant factor
Nature and scope of the apparent violations
  1. Optitel Mobile does not appear to be a participant in the CCTS, even though it and Robert Trudeau have been (i) informed of the CCTS participation requirement and (ii) given instructions regarding how to respect it. As a result, its customers are being deprived of a Commission-sanctioned, binding complaint resolution process. As noted above, the requirement to be a participant in the CCTS, imposed by the Commission through a section 24.1 condition of service, reflects the importance of the CCTS and its value to consumers.
  2. In terms of the scope of the apparent violation, the length of time a company has been in apparent non-compliance may be a relevant consideration. The time that has elapsed since Optitel Mobile apparently became subject to the CCTS participation requirement is approximately nine months.
  3. Another consideration that may be relevant to the scope of the apparent violation is the number of subscribers who do not have access to the CCTS as a result of a TSP’s failure to join the CCTS. On 15 November 2022, Commission staff sent a request for information to Optitel Mobile requesting it to file with the Commission by 6 December 2022 the number of subscribers to its respective services that fall within the scope of the CCTS’s mandate for the previous three fiscal years. As of the date of this notice, Optitel Mobile has not responded to Commission staff’s request.
  4. Accordingly, the Commission encourages Optitel Mobile and Robert Trudeau to submit information in this regard. They may designate certain information as confidential in accordance with the Act and with the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules of Procedure).Footnote 4
  5. On the basis of the evidence on the record at this time, it appears that there are serious and ongoing violations, and that significant AMPs may be appropriate.
History of compliance
  1. There is no evidence that Optitel Mobile or Robert Trudeau has committed any previous violations of the Act or of regulations or decisions made by the Commission under the Act.
Benefit obtained from the violation
  1. If a TSP has improperly shielded itself from the dispute resolution mechanisms of the CCTS, which can require TSPs to, for example, pay monetary compensation to customers, it may have received a benefit as a result of its apparent non-compliance. This factor suggests that significant AMPs may be appropriate in this case. Given that Optitel Mobile has only one director, it may be reasonable to conclude that Robert Trudeau has indirectly benefited as well.
Ability to pay
  1. The Commission does not have any current information about the ability of Optitel Mobile or Robert Trudeau to pay. On 15 November 2022, Commission staff requested that Optitel Mobile file with the Commission audited financial statements for the previous three fiscal years. As of the date of this notice, Optitel Mobile has not responded to Commission staff’s request.
  2. Accordingly, the Commission encourages Optitel Mobile to file financial information, which it may designate as confidential in accordance with the Act and with the Rules of Procedure.
  3. Robert Trudeau also has the opportunity to file information relating to their personal ability to pay. If they seek to demonstrate that they do not have the ability to pay the proposed AMP amount, they are to file supporting evidence. This information may be submitted to the Commission in confidence as set out in paragraph 31 of this notice.
Factors established by any regulations
  1. At this time, no such factors have been established.
Other relevant factors
  1. Optitel Mobile and Robert Trudeau have demonstrated a lack of cooperation by failing to respond to a request for information that was sent on 15 November 2022 to a letter from the Commission’s Chief of Consumer, Research and Communications.
  2. It appears that Optitel Mobile is willfully ignoring attempts by the CCTS and Commission staff to ensure its compliance with its regulatory obligations. The Commission intends to take Optitel Mobile’s lack of cooperation into account, as the Commission takes non-compliance with the regulatory obligations it imposes on TSPs seriously. In these circumstances, the Commission will use the measures at its disposal that are most appropriate in the circumstances to promote compliance. The apparent contravention of the CCTS participation requirement could negatively impact the reputation and perceived effectiveness of the CCTS in helping resolve consumer complaints. Accordingly, this consideration suggests that a significant AMP may be appropriate.
  3. The Commission also considers that general deterrence should be taken into account in determining the proposed AMP amount. The apparent contraventions in this case could encourage non-compliance with the CCTS participation requirement more generally. The Commission considers that if a contravention is found, any AMP levied should be sufficient to act as a deterrent without being unduly punitive.
  4. The Commission is of the preliminary view that a consideration of all the prescribed factors on the basis of the evidence currently on the record indicates that an AMP in the amount of $50,000 for Optitel Mobile, should it be found to have committed a violation, would be appropriate. Further, the Commission considers that an AMP in the amount of $15,000 for Robert Trudeau, should they be found to be liable for a violation committed by the corporation they direct, would be appropriate, in light of the factors set out in the Act.
  5. In light of the above, the Commission directs
    • Optitel Mobile to show cause why, if it is found to have committed a violation of the Act related to the CCTS participation requirement, the Commission should not impose an AMP against it in the amount of $50,000; and
    • in the event that the Commission finds that Optitel Mobile has committed a violation, the individual listed in Appendix 1 to this notice to show cause why they should not be held liable for the violation of the TSP they direct and why the Commission should not impose an AMP against that individual in the amount of $15,000 in these circumstances.
Mandatory order
  1. The imposition of AMPs represents only one enforcement measure that the Commission may take to promote compliance with the Act. Given the serious and longstanding nature of the apparent violation in the present circumstances, the Commission considers that if it were to find that a violation has been committed, it would be necessary to consider whether additional enforcement measures would help to ensure that Optitel Mobile achieves compliance.
  2. Accordingly, the Commission directs Optitel Mobile to show cause why, if it is found to have committed a violation, the Commission should not impose a mandatory order requiring the company to take all steps necessary to participate in the CCTS within 60 days of the date of the order.
  3. Furthermore, the Commission directs Robert Trudeau to show cause why, if they are found liable for any violations committed by Optitel Mobile, they should not be named in a mandatory order that would hold them personally accountable for ensuring that the company they direct take the necessary steps to participate in the CCTS.
  4. If a mandatory order is imposed, failure to abide by its terms could form the basis for finding subsequent violations of the Act to have been committed.
Other potential enforcement measures
  1. The Commission intends to pursue compliance with the CCTS participation requirement by all means at its disposal. In general, this could include registering any AMP-related debts and mandatory orders in the Federal Court and initiating proceedings to enforce such orders.

Procedure

  1. The Rules of Procedure apply to this proceeding. The Rules of Procedure set out, among other things, the rules for the content, format, filing, and service of interventions, answers, replies, and requests for information; the procedure for filing confidential information and requesting its disclosure; and the conduct of public hearings. Accordingly, the procedure set out below must be read in conjunction with the Rules of Procedure and related documents, which can be found on the Commission’s website at www.crtc.gc.ca, under “Statutes and regulations.” The guidelines set out in Broadcasting and Telecom Information Bulletin 2010-959 provide information to help interested persons and parties understand the Rules of Procedure so that they can more effectively participate in Commission proceedings.
  2. Optitel Mobile and Robert Trudeau are made parties to this proceeding. They are to file their submissions with the Commission by 17 April 2023.
  3. Interested persons may also file interventions on these matters. Interested persons who wish to become parties to this proceeding must file an intervention with the Commission regarding the above-noted issues by 17 April 2023. The intervention must be filed in accordance with section 26 of the Rules of Procedure.
  4. Parties are permitted to coordinate, organize, and file, in a single submission, interventions by other interested persons who share their position. Information on how to file this type of submission, known as a joint supporting intervention, as well as a template for the accompanying cover letter to be filed by parties, can be found in Telecom Information Bulletin 2011-693.
  5. All parties may file replies to interventions with the Commission by 2 May 2023. Parties can consult the Commission’s website to determine who has filed interventions for the purpose of exercising their right of reply.
  6. The Commission encourages interested persons and parties to monitor the record of this proceeding, available on the Commission’s website at www.crtc.gc.ca, for additional information that they may find useful when preparing their submissions.
  7. Submissions longer than five pages should include a summary. Each paragraph of all submissions should be numbered, and the line ***End of document*** should follow the last paragraph. This will help the Commission verify that the document has not been damaged during electronic transmission.
  8. Pursuant to Broadcasting and Telecom Information Bulletin 2015-242, the Commission expects incorporated entities and associations, and encourages all Canadians, to file submissions for Commission proceedings in accessible formats (for example, text-based file formats that enable text to be enlarged or modified, or read by screen readers). To provide assistance in this regard, the Commission has posted on its website guidelines for preparing documents in accessible formats.
  9. Submissions must be filed by sending them to the Secretary General of the Commission using only one of the following means:

    by completing the
    [Intervention form]

    or

    by mail to
    CRTC, Ottawa, Ontario K1A 0N2

    or

    by fax to
    819-994-0218

  10. Parties who send documents electronically must ensure that they will be able to prove, upon Commission request, that filing, or where required, service, of a particular document was completed. Accordingly, parties must keep proof of the sending and receipt of each document for 180 days after the date on which the document is filed or served. The Commission advises parties who file or serve documents by electronic means to exercise caution when using email for the service of documents, as it may be difficult to establish that service has occurred.
  11. In accordance with the Rules of Procedure, a document must be received by the Commission and all relevant parties by 5 p.m. Vancouver time (8 p.m. Ottawa time) on the date it is due. Parties are responsible for ensuring the timely delivery of their submissions and will not be notified if their submissions are received after the deadline. Late submissions, including those due to postal delays, will not be considered by the Commission and will not be made part of the public record.
  12. The Commission will not formally acknowledge submissions. It will, however, fully consider all submissions, which will form part of the public record of the proceeding, provided that the procedure for filing set out above has been followed.

Important notice

  1. All information that parties provide as part of this public process, except information designated confidential, whether sent by postal mail, fax, email, or through the Commission’s website at www.crtc.gc.ca, becomes part of a publicly accessible file and will be posted on the Commission’s website. This includes all personal information, such as full names, email addresses, postal/street addresses, and telephone and fax numbers.
  2. The personal information that parties provide will be used and may be disclosed for the purpose for which the information was obtained or compiled by the Commission, or for a use consistent with that purpose.
  3. Documents received electronically or otherwise will be posted on the Commission’s website in their entirety exactly as received, including any personal information contained therein, in the official language and format in which they are received. Documents not received electronically will be available in PDF format.
  4. The information that parties provide to the Commission as part of this public process is entered into an unsearchable database dedicated to this specific public process. This database is accessible only from the web page of this particular public process. As a result, a general search of the Commission’s website with the help of either its search engine or a third-party search engine will not provide access to the information that was provided as part of this public process.

Availability of documents

  1. Links to interventions, replies, and answers filed for this proceeding, as well as other documents referred to in this notice, are available on the Commission’s “Consultations and hearings: have your say” page.
  2. Documents are available upon request during normal business hours by contacting:

    Documentation Centre
    Examinationroom@crtc.gc.ca
    Tel.: 819-997-4389
    Fax: 819-994-0218

    Client Services
    Toll-free telephone: 1-877-249-2782
    Toll-free TTY: 1-877-909-2782

Secretary General

Related documents

Appendix 1 to Telecom Notice of Consultation 2023-45

Summary of the evidence filed by the Commission for Complaints for Telecom-television Services Inc.

Before referring a non-participating telecommunications service provider (TSP) to the Commission, the Commission for Complaints for Telecom-television Services Inc. (CCTS) makes multiple attempts to sign up the TSP, including sending a participation package at least twice, which includes, among other things, a cover letter that sets out the date by which the company is to become a participant.

If the TSP has not become a participant in the CCTS within the time frame specified in the second package, the CCTS sends a letter to the Commission’s Chief of Consumer, Research and Communications to inform them that the TSP has failed to become a participant in the CCTS as required.

The letter includes the relevant dates, the name of the individual within the TSP whom the CCTS attempted to contact, evidence that the CCTS sent the participation package to the TSP on two occasions, the steps that the CCTS took to reach the TSP, and a copy of the complaint that triggered the requirement. The referral documentation has been placed on the record of this proceeding. Below is the timeline of the events involving Optitel Mobile Inc. (Optitel Mobile) with regard to the CCTS participation requirement, as submitted by the CCTS.

Company name Date of complaints Date of first notice from the CCTS Date required to become a participant Date of second notice from the CCTS Date of third notice from the CCTS Date of referral to the Commission
Optitel Mobile First complaint: 3 March 2022
Second complaint: 15 April 2022		 12 April 2022 12 May 2022 13 May 2022 1 June 2022 30 September 2022

Timeline of Commission staff interactions with Optitel Mobile

Commission staff used, among other things, corporate records searches to validate the legal names of Optitel Mobile and Robert Trudeau. That information has been placed on the record of this proceeding.

The following table sets out the timeline of Commission staff’s interactions with Optitel Mobile.

Company name Commission staff email letter Other Commission staff interaction with the TSP Second Commission staff email letter Other Commission staff interaction with the TSP Other Commission staff interaction with the TSP
Optitel Mobile 20 October 2022 Voicemail left on 3 November 2022 15 November 2022 Voicemail left on 24 November 2022 Email sent using the “Contact us” function on the TSP’s website and voicemail left on 7 December 2022
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