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TRANSCRIPT OF PROCEEDINGS BEFORE
THE CANADIAN RADIO‑TELEVISION AND
TRANSCRIPTION DES AUDIENCES DEVANT
LE CONSEIL DE LA RADIODIFFUSION
ET DES TÉLÉCOMMUNICATIONS CANADIENNES
SUBJECT / SUJET:
Proceeding to consider the organization and mandate of the
Commissioner for Complaints for Telecommunications Services /
Instance portant sur l'examen de la structure et du mandat
du Commissaire des plaintes relativement aux services
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
November 14, 2007 Le 14 novembre 2007
In order to meet the requirements of the Official Languages
Act, transcripts of proceedings before the Commission will be
bilingual as to their covers, the listing of the CRTC members
and staff attending the public hearings, and the Table of
However, the aforementioned publication is the recorded
verbatim transcript and, as such, is taped and transcribed in
either of the official languages, depending on the language
spoken by the participant at the public hearing.
Afin de rencontrer les exigences de la Loi sur les langues
officielles, les procès‑verbaux pour le Conseil seront
bilingues en ce qui a trait à la page couverture, la liste des
membres et du personnel du CRTC participant à l'audience
publique ainsi que la table des matières.
Toutefois, la publication susmentionnée est un compte rendu
textuel des délibérations et, en tant que tel, est enregistrée
et transcrite dans l'une ou l'autre des deux langues
officielles, compte tenu de la langue utilisée par le
participant à l'audience publique.
Canadian Radio‑television and
Conseil de la radiodiffusion et des
Transcript / Transcription
Proceeding to consider the organization and mandate of the
Commissioner for Complaints for Telecommunications Services /
Instance portant sur l'examen de la structure et du mandat
du Commissaire des plaintes relativement aux services
BEFORE / DEVANT:
Konrad von Finckenstein Chairperson / Président
Len Katz Commissioner / Conseiller
Michel Morin Commissioner / Conseiller
ALSO PRESENT / AUSSI PRÉSENTS:
Chantal Boulet Secretary / Secrétaire
Philippe Kent Staff Team Leader /
Chef d'équipe du personnel
Lori Pope Legal Counsel /
Anthony McIntyre Conseillers juridiques
HELD AT: TENUE À:
Conference Centre Centre de conférences
Outaouais Room Salle Outaouais
140 Promenade du Portage 140, Promenade du Portage
Gatineau, Quebec Gatineau (Québec)
November 14, 2007 Le 14 novembre 2007
- iv -
TABLE DES MATIÈRES / TABLE OF CONTENTS
PAGE / PARA
PRESENTATION BY / PRÉSENTATION PAR:
CCTS Members 5 / 29
Interim CCTS Commissioner McKendry 21 / 117
CIPPIC 147 / 755
Canadian Broadcast Standards Council 185 / 945
Consumers Council of Canada and the 214 / 1091
National Anti-Povery Organization
Canadian Cable Systems Alliance 242 / 1213
- v -
EXHIBITS / PIÈCES JUSTIFICATIVES
No. PAGE / PARA
CRTC-1 Chart representing the 84 / 414
Gatineau, Quebec / Gatineau, Québec
‑‑‑ Upon commencing on Wednesday, November 14, 2007
at 0935 / L'audience débute le mercredi 14
novembre 2007 à 0935
LISTNUM 1 \l 11 THE CHAIRPERSON: Okay, Madame Boulet.
LISTNUM 1 \l 12 LA SECRÉTAIRE : Bonjour, Monsieur le Président. Bonjour à tous.
LISTNUM 1 \l 13 Mr. Chairman, did you want to proceed with your remarks before I start with mine?
LISTNUM 1 \l 14 THE CHAIRPERSON: I am supposed to have opening remarks but I can't find them right now.
LISTNUM 1 \l 15 Basically, this is a hearing of the CCTS, as you know. By order in council the Minister asked the industry to set it up and the industry has responded and the hearing here is now to verify and see whether what you have put together actually meets the requirements of the Commission.
LISTNUM 1 \l 16 I am assisted today by Len Katz, the Vice‑President Telecom, and Michel Morin, National Commissioner.
LISTNUM 1 \l 17 Really, this hearing will focus on the following matter, whether membership in the consumer industry should be mandatory for all telecommunication service providers, whether the consumer industry's proposed government sector ensures its independence from the telecommunications industry and whether the consumer agency's proposed mandate is appropriate.
LISTNUM 1 \l 18 That is really all I have to say.
LISTNUM 1 \l 19 Madame Boulet, I turn it over to you.
LISTNUM 1 \l 110 LA SECRÉTAIRE : Merci, Monsieur le Président.
LISTNUM 1 \l 111 Bonjour à tous.
LISTNUM 1 \l 112 First, I would ask when you are in the hearing room to please turn off your BlackBerrys and your cell phones. We would appreciate your cooperation throughout this hearing.
LISTNUM 1 \l 113 Please note that the Commission members may ask questions in either English or French. You can obtain interpretation receivers from the commissionaire sitting at the entrance of the conference centre.
LISTNUM 1 \l 114 Le service d'interprétation simultanée est disponible durant cette audience. L'interprétation anglaise se trouve au canal 1, et l'interprétation française au canal 2.
LISTNUM 1 \l 115 We expect the hearing to be completed within the next two days. We will begin at 9:30 again tomorrow morning and adjourn each afternoon at approximately 4:30. We will take an hour for lunch and a break in the morning and in the afternoon.
LISTNUM 1 \l 116 All submissions heard at this public hearing will be transcribed and will form part of the public record of this proceeding.
LISTNUM 1 \l 117 Please note that the full transcript of this hearing will be made available on the Commission's website shortly after the conclusion of the hearing.
LISTNUM 1 \l 118 Anyone wishing to purchase a copy of the transcript may speak to the court reporter or the company Mediacopy.
LISTNUM 1 \l 119 Pendant toute la durée de l'audience, vous pourrez consulter les documents qui font partie du dossier public pour cette consultation dans la salle d'examen qui se trouve dans la Salle Papineau, à l'extérieur de la salle d'audience, à votre droite.
LISTNUM 1 \l 120 Any parties wishing to apply for an award of costs should file a request on or before January 7th, 2008, copying all other parties, and parties should reply by January 14, 2008. In doing so, parties are encouraged to identify the specific amount of costs for which they wish to apply and to file with the Commission all information necessary for the Commission to fix costs.
LISTNUM 1 \l 121 We will now proceed with the presentations in the order of appearance set out in Schedule A of the letter dated October 26 on the organization and conduct of this consultation.
LISTNUM 1 \l 122 Please note that due to unforeseen circumstances ARCH Disability Law Centre will make their presentation via videoconference at the end of the day today.
LISTNUM 1 \l 123 Copies of the revised order of appearance are available at the back of the room and the information is also posted on our website.
LISTNUM 1 \l 124 Each party will be granted 20 minutes for their presentation. Questions from the Commission will follow the presentation.
LISTNUM 1 \l 125 Parties are reminded that copies of their oral presentation are being provided for convenience only and do not form part of the public record of this proceeding.
LISTNUM 1 \l 126 I would now invite the representative of the CCTS Members to make their presentation.
LISTNUM 1 \l 127 Please introduce yourself for the record and then you will have 20 minutes for your presentation.
LISTNUM 1 \l 128 I believe, Mr. Bibic, you will be starting the presentation. Please go ahead.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 129 M. BIBIC : Bonjour, Monsieur le Président, conseillers.
LISTNUM 1 \l 130 Je m'appelle Mirko Bibic, et je suis le chef des Affaires réglementaires chez Bell Canada.
LISTNUM 1 \l 131 Mes collègues et moi représentons les fournisseurs de services de télécommunication membres du CPRST, Commissaire des plaintes relativement aux services de télécommunications.
LISTNUM 1 \l 132 Nous sommes très heureux de pouvoir vous parler du service de règlement des plaintes que nous avons créé ensemble en réponse au décret du 4 avril 2007.
LISTNUM 1 \l 133 Après avoir présenté les membres de notre panel et formulé des observations d'ordre général sur les exigences du décret, je passerai la parole à Dennis Béland de Quebecor Media qui discutera de certains enjeux spécifiques de cette instance.
LISTNUM 1 \l 134 With me this morning, as mentioned, Dennis Béland, Director, Regulatory Affairs, at the extreme right, for Quebecor Media.
LISTNUM 1 \l 135 To my right, I have Bill Abbott, Senior Counsel, Regulatory Affairs for Bell Canada.
LISTNUM 1 \l 136 To my left, Willie Grieve, Vice‑President, Telecom Policy and Regulatory Affairs for TELUS.
LISTNUM 1 \l 137 To Willie's left, Craig McTaggart, Director, Regulatory Affairs, TELUS.
LISTNUM 1 \l 138 And to the extreme left, Jennifer Crowe, Counsel, Regulatory Affairs for MTS Allstream.
LISTNUM 1 \l 139 Our colleague Joe Parent from Vonage Canada had previously been identified as a member of our representative panel but was unfortunately unable to join us today.
LISTNUM 1 \l 140 Seated in the row behind me, we have David McKendry, Interim Commissioner, CCTS.
LISTNUM 1 \l 141 To David's right, we have Peter Paul, a Bell Canada employee seconded to CCTS as its Interim Executive Director until a permanent commissioner is appointed.
LISTNUM 1 \l 142 And to David's left, we have Scott Fletcher of Gowling Lafleur Henderson, Counsel to CCTS.
LISTNUM 1 \l 143 Mr. McKendry is not part of the Members' panel per se but rather is here to speak to the current operations of CCTS and also to share his experience as the former Ombudsman for Long Distance Telecommunications Services.
LISTNUM 1 \l 144 While Mr. McKendry functions independently of the Members in his role as Interim Commissioner, we felt it would be most efficient if he were to make himself available to the Commission for questioning at the same time as this panel.
LISTNUM 1 \l 145 Mr. Paul and Mr. Fletcher are also not formally part of the Members' panel but rather are here to support Mr. McKendry and the rest of us as necessary.
LISTNUM 1 \l 146 Mes collègues et moi, nous présentons devant vous, au nom du collectif des Membres du CPRST.
LISTNUM 1 \l 147 Le nombre d'entreprises membres est récemment passé à 13, car NorthwestTel et Télébec ont récemment accepté de se joindre à Bell Aliant, Bell Canada, Bragg Communications, Cogeco, MTS Allstream, Rogers, SaskTel, TELUS, Vidéotron, Virgin Mobile Canada et Vonage Canada.
LISTNUM 1 \l 148 Nous sommes extrêmement fiers de cette réalisation car nous avons créé le CPRST à partir de rien, en moins de cinq mois, en réponse à la demande que la Gouverneur en conseil a faite à l'industrie de créer un organisme indépendant qui aurait le mandat de régler les plaintes faites par les particuliers et les petites entreprises de détail. De l'avis des Membres, le CPRST respecte toutes les exigences du décret.
LISTNUM 1 \l 149 Mr. Chairman, I want to spend a moment on the order in council in itself and the kind of body that it requires.
LISTNUM 1 \l 150 Most obviously, the Members note that the primary requirement of the OIC is for the Commission to make a report once per year regarding complaints that it receives from individual and small business retail customers regarding services provided by TSPs until it approves a body established by industry.
LISTNUM 1 \l 151 In the preamble clauses, the Governor in council describes the attributes of an independent industry‑created complaints resolution body that was viewed as an integral component of a deregulated telecom market.
LISTNUM 1 \l 152 The link between the preamble and the operative clause in the OIC is that the Commission is to continue to make reports until such time as a consumer agency has been established by industry and approved by this Commission.
LISTNUM 1 \l 153 The task facing the Commission in this proceeding is to therefore determine whether to approve the CCTS' structure and mandate and consequently not to make any such reports.
LISTNUM 1 \l 154 In the Members' view, the OIC sets out the government's expectation that the industry will establish and fund an independent dispute resolution mechanism. It did not dictate the specific characteristics of the dispute resolution mechanism nor did it direct the Commission to do so or to micromanage its attributes and operations.
LISTNUM 1 \l 155 Consistent with the Governor in council's view that the Commission should rely on market forces to the maximum extent feasible as the means of achieving the Telecom Policy objectives and that when relying on regulation the Commission should use measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary, the Governor in council entrusted the task of defining the features of the dispute resolution mechanism to the industry.
LISTNUM 1 \l 156 Some parties appear to have misconstrued the nature of the proceeding and offer their views as to the ideal design of a comprehensive self‑regulatory body of a kind that could only be created or mandated by statute. The OIC describes a more focused industry‑established body and that is what we have created.
LISTNUM 1 \l 157 It is important to start from the understanding that the OIC does not establish a statutory body, regulator or policy‑maker. Rather, it calls for an independent complaints‑resolution body.
LISTNUM 1 \l 158 The Governor in council's reference to deregulated telecom markets is also significant. It highlights the fact that the services in question are forborne services already determined by the Commission to be subject to competitive forces that are sufficient to protect the interests of users.
LISTNUM 1 \l 159 In the Members' view, the Governor in council conceived of this service as part of a competitive marketplace, not a substitute for it.
LISTNUM 1 \l 160 The CCTS is a valuable new avenue of recourse for consumers and small businesses with respect to unresolved complaints. Funded entirely by the industry and operated without charge to complainants, it has been designed to be independent, impartial, accessible and an efficient alternative to the courts for individuals and small business customers.
LISTNUM 1 \l 161 It is emphatically not a substitute for the courts nor for the operation of market forces which will continue to protect users.
LISTNUM 1 \l 162 Under the mechanism designed by the Members, if attempts to resolve a complaint through a direct communication between a complainant and a TSP have proven unsuccessful, then the CCTS is available to facilitate resolution of the complaint.
LISTNUM 1 \l 163 If the Commissioner is not successful in bringing the parties to an agreed upon outcome, then the Commissioner has been empowered, first, to recommend a solution to the complaint.
LISTNUM 1 \l 164 If the parties are unable to agree regarding the recommendation, the Members have also given the Commissioner the ability to render a decision that is binding on the TSP in question if the complainant accepts it.
LISTNUM 1 \l 165 TSP Members agree as a condition of membership to abide by such decisions from which they have no right of appeal and which are made public.
LISTNUM 1 \l 166 Je demanderais maintenant à Dennis Béland de parler de certains enjeux précis qui, de l'avis du Conseil, lui serviront à déterminer si la structure et le mandat du CPRST respectent les exigences du décret.
LISTNUM 1 \l 167 Dennis.
LISTNUM 1 \l 168 M. BÉLAND : Merci, Mirko.
LISTNUM 1 \l 169 Dans une lettre datée du 17 octobre 2007, le personnel du Conseil a demandé aux parties de structurer leurs soumissions selon certaines voies. C'est ce que je vais faire, en offrant la position des Membres sur plusieurs des enjeux que le personnel a mentionnés.
LISTNUM 1 \l 170 D'abord, les Membres.
LISTNUM 1 \l 171 Comme les Membres l'ont indiqué dans leurs commentaires écrits du 1er octobre 2007, nous ne croyons pas qu'il faille imposer l'adhésion au CPRST. Même si nous voyons des avantages à ce que la totalité ou la quasi‑totalité des FST en fasse partie, les Membres croient que dans un marché concurrentiel, la décision de se joindre au CPRST devrait revenir à chaque FST.
LISTNUM 1 \l 172 Les Membres ont estimé qu'il était intéressant pour eux d'adhérer au CPRST et de donner à leurs clients particuliers et petites entreprises de détail l'accès au service de règlement des plaintes qu'il fourni. Certains FST peuvent avoir leur raison de ne pas devenir membre, et les Membres considèrent que cette différence dans les offres des fournisseurs est une des marques d'un marché concurrentiel.
LISTNUM 1 \l 173 Les Membres font observer qu'ils sont 13 des plus grands FST au Canada, et que, ensemble, ils desservent la vaste majorité des clients de résidence et des petites entreprises de détail au pays. Par conséquent, les intérêts de la plupart des clients sont déjà protégés sans qu'il soit nécessaire d'imposer l'adhésion au CPRST.
LISTNUM 1 \l 174 Le financement.
LISTNUM 1 \l 175 Concernant la structure de financement, les Membres ont pris soin de créer un modèle qui pourrait accommoder un nombre indéterminé de FST de toute taille.
LISTNUM 1 \l 176 Les Membres comprennent que les groupes qui représentent les petits FST se préoccupent du fait que les frais d'adhésion non‑récurrents proposés seraient trop élevés pour de très petits fournisseurs de services.
LISTNUM 1 \l 177 Les Membres ont l'intention de consulter ces groupes en vue d'établir des catégories à frais moins élevés pour encourage l'adhésion des petits fournisseurs.
LISTNUM 1 \l 178 Les Membres fourniront les détails de cette nouvelle structure de frais dans leur réplique écrite du 23 novembre 2007, mais ils envisagent de ramener les frais non‑récurrents les moins élevés à $1 000.
LISTNUM 1 \l 179 Next, governance structure. The working group that put together the CCTS made the CCTS's independence from the industry their guiding principle.
LISTNUM 1 \l 180 In their comments to the Commission, some parties have alleged that the CCTS lacks the independence required by the Order in Council. These comments, however, are focused almost entirely upon the composition of the CCTS's board of directors and not on the CCTS's complaints resolution procedures.
LISTNUM 1 \l 181 In the members' view, those comments are misguided. The raison d'être of the CCTS is the resolution of complaints, which will be performed by a commissioner who is completely independent of the industry and of any other groups or interests. It is useful to recall that the directors are barred from having any involvement in or any exposure whatsoever to the resolution of individual complaints.
LISTNUM 1 \l 182 Industry directors constitute a minority on the board and can thus be outvoted by the independent directors on most matters that come before the board.
LISTNUM 1 \l 183 Further, detailed oversight of a number of matters has been delegated to a committee comprised solely of the independent directors. I want to emphasize that the provisional board plays no role in the selection of the initial independent directors.
LISTNUM 1 \l 184 The CCTS's by‑laws provide that the three initial independent directors are to be recruited by an independent ad hoc nominating committee operating at arm's length from the provisional board. The ad hoc nominating committee is comprised of three highly respected Canadians with no ties to the telecommunications industry: Denis Desautels, Al Hatton and David Zussman.
LISTNUM 1 \l 185 More information about this committee and its work can be found in a letter filed by the members yesterday.
LISTNUM 1 \l 186 The provisional board must appoint the three candidates whom the nominating committee recommends. It has no discretion in the matter. Thereafter, the group of independent directors will be self‑perpetuating. The provisional board will step down as soon as possible after the CCTS is approved and its permanent board is in place.
LISTNUM 1 \l 187 To ensure accountability in relation to funding, the members have, in a completely transparent way, reserved certain protections for those entities that fund the CCTS with respect to the narrow range of fundamental corporal and financial matters. As an independent organization that the members by definition cannot control, yet must fund, it is entirely reasonable for the CCTS's governance structure to contain such protections.
LISTNUM 1 \l 188 The measures contained in the CCTS's constating documents that ensure financial and management discipline on the part of the CCTS are not inconsistent with the independence of the commissioner in all matters related to complaint resolution.
LISTNUM 1 \l 189 Mandate. Turning to the CCTS's mandate, considerable effort was devoted by the members to define the services that are in and out of scope. In setting out the CCTS's mandate, the members focused on the Order in Council's request for a complaint resolution mechanism in relation to forborne retail telecommunications services. Until the Commission forbears, it should continue to handle the adjudication of complaints relating to regulated services and conditions of service.
LISTNUM 1 \l 190 Similarly, only retail services are in scope, and complaints by TSPs against other TSPs should not be entertained.
LISTNUM 1 \l 191 Third, the service in question must be a telecommunications service.
LISTNUM 1 \l 192 Finally, complaints relating to the sale or provision of equipment are not in the scope.
LISTNUM 1 \l 193 Le Conseil a déjà demandé aux Membres et aux autres parties s'ils étaient d'avis que le CPRST devrait traiter les plaintes liées aux services réglementés et aux règles sur les télécommunications non sollicitées.
LISTNUM 1 \l 194 Pour ce qui touche le traitement par le CPRST des plaintes liées aux services réglementés, au‑delà du risque évident de chevauchement des compétences, les Membres considèrent qu'en élargissant le mandat du CPRST, on dépasserait les intentions du décret.
LISTNUM 1 \l 195 Quant aux plaintes liées aux règles sur les télécommunications non sollicitées ou le télémarketing, les Membres font observer qu'aucune partie n'a appuyé l'idée que le CPRST fasse enquête sur ce type de plainte.
LISTNUM 1 \l 196 Franchement, les Membres ne comprennent pas comment les plaintes concernant le télémarketing pourraient être traitées par une agence du secteur des télécommunications, ni pourquoi elles devraient l'être. Ce sont des secteurs entièrement différents, et les entreprises qui verseraient des frais ne seraient pas du tout les mêmes. Une agence hybride serait très difficile à concevoir, surtout à cette étape de l'évolution du CPRST.
LISTNUM 1 \l 197 Je termine ici, et je passerai la parole à Mirko pour la conclusion.
LISTNUM 1 \l 198 MR. BIBIC: Thank you, Dennis.
LISTNUM 1 \l 199 The members would like to conclude by reiterating their view that the issue before the Commission in this proceeding is whether the CCTS meets the requirements of the Order in Council. We believe it does, and that the Commission should approve its structure and mandate.
LISTNUM 1 \l 1100 It is our view that modifications should only be required to the extent aspects of the CCTS do not conform with the requirements of the OIC. The members took great care to design the CCTS to meet the Governor in Council's explicit expectations and conducted consultations with stakeholders along the way to make sure they had the complete picture.
LISTNUM 1 \l 1101 Mr. Chairman, Commissioners, it is frankly remarkable that 13 of the country's largest TSPs have been able to come together so quickly and amicably to create something powerful for their customers. As I mentioned at the start, the members are proud of the hard work put in by our employees and team members in creating the CCTS in a very short time frame and doing so openly, in consultation with many TSPs and other stakeholders.
LISTNUM 1 \l 1102 The benefits of this approach have been obvious. We now have up to 13 members.
LISTNUM 1 \l 1103 Consultations resulted in accommodating several suggestions from consumer groups and the CRTC was kept apprised of developments each step of the way.
LISTNUM 1 \l 1104 The members urge the Commission to let the CCTS continue to develop as a voluntary body without responsibility for complaints related to regulated services or telemarketing. In the members' view, that model is the one that is most consistent with the requirement and the policy direction requiring the Commission to rely on market forces to the maximum extent feasible.
LISTNUM 1 \l 1105 Thank you for this opportunity to present our position.
LISTNUM 1 \l 1106 Before we move to answering questions, I would like to ask CCTS's interim Commissioner, David McKendry, to provide a very brief report on how the CCTS's first three months of operations have gone.
LISTNUM 1 \l 1107 MR. LAWFORD: Mr. Chairman, I would like to object. It is John Lawford from the Consumer Groups.
LISTNUM 1 \l 1108 We just note that the interim Commissioner is not a party to this proceeding, and we had no advance notice that he would be making a statement here today.
LISTNUM 1 \l 1109 You can certainly ask him questions, if you wish, and you can certainly let him make a statement if you wish, but that is our objection.
LISTNUM 1 \l 1110 THE CHAIRPERSON: I asked for Mr. McKendry to be here because I want to hear from him firsthand how the CCTS operation is running so far and what his experience has been.
LISTNUM 1 \l 1111 As you know, he was Commissioner and long distance ombudsman, so it is very relevant experience, and I think it will benefit all parties to understand. That is what he is here for, to tell us what his experience has been so far.
LISTNUM 1 \l 1112 We have something provisionally operational. I want to know how it functions. This would be to your benefit to hear this. You will hear his answers and questions too, and to the extent that you want, you can obviously use it in your comments to us.
LISTNUM 1 \l 1113 MR. LAWFORD: I will just note that the questions that the panel could ask Mr. McKendry could be exactly what he has in his statement here, and in effect he gets to restate twice.
LISTNUM 1 \l 1114 Again, we weren't advised that he was going to be making a statement. That is my only objection. Thank you.
LISTNUM 1 \l 1115 THE CHAIRPERSON: I hear you. I think it will be to the benefit of everybody that we hear from Mr. McKendry before we question him.
LISTNUM 1 \l 1116 Mr. McKendry, would you please go ahead?
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 1117 INTERIM CCTS COMMISSIONER McKENDRY: Good morning, Mr. Chairman and Commissioners. I have the pleasure to be here today as the CCTS interim Commissioner, a position that I have held since July 23rd, 2007.
LISTNUM 1 \l 1118 I will hold this position until the first permanent Commissioner is appointed by the full independent board when it takes office.
LISTNUM 1 \l 1119 In addition to being a former CRTC Commissioner, I also previously held the position of ombudsman for telecommunications services. This industry self‑regulatory position was voluntarily created by new entrant long distance companies to address the slamming problem experienced in the early days of long distance competition.
LISTNUM 1 \l 1120 I was also the founding consumer representative on the former Cable Television Standards Council, a self‑regulatory body created by the cable television industry to deal with consumer complaints. As an aside, Mr. Chairman, when this three‑person council was created several years ago, the founding industry member was Elizabeth Duncan, who is now one of your colleagues at the Commission.
LISTNUM 1 \l 1121 I am here today to answer any questions the Commission may have about CCTS's current operations. In that regard, I am pleased to report the launch of CCTS has been very successful. We have handled well over 1,000 contacts since July 23rd. Virtually all of the complaints that we have dealt with have been resolved. Eighteen complaints have now reached the investigation stage and will require recommendations on my part. However, I expect that some of these complaints will be resolved amicably prior to my needing to issue a recommendation.
LISTNUM 1 \l 1122 No complaints have reached the binding decision stage yet, which is not surprising, considering the short time that CCTS has been in operation. Based on my experience, I expect that industry members will prefer to resolve complaints before they reach the final binding stage. In fact, in my time as the long distance ombudsman, I never had to issue a single formal decision.
LISTNUM 1 \l 1123 Of course, the scope of CCTS's mandate is broader, but I find that a phone call with the parties involved goes a long way towards resolving complaints.
LISTNUM 1 \l 1124 CCTS staff tell me that we have been receiving very positive feedback in the service. Our staff is trained to answer most inquiries that individual and small business customers may have with regards to their dispute resolution rights. Consumers are happy to be able to talk to a live person when they call, and if CCTS cannot deal with their complaint, CCTS staff generally try to refer the complainant to another agency or tribunal that might be able to help.
LISTNUM 1 \l 1125 Accessibility of our procedures is of great concern to me and CCTS's members. I have read with interest the submissions of ARCH and the Canadian Association of the Deaf. We have already taken steps such as ensuring that our website is WC3 compliant, but there is more to do and I intend to consult with ARCH and the Canadian Association of the Deaf and other groups to ensure the accessibility of CCTS to all who may need it.
LISTNUM 1 \l 1126 I look forward to your questions about the CCTS's operations and my experience as interim Commissioner. Let me now turn it back to Mr. Bibic.
LISTNUM 1 \l 1127 MR. BIBIC: Mr. Chairman, we are available for questions.
LISTNUM 1 \l 1128 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 1129 Mr. Bibic, I see you filed yesterday an extra letter of clarification regarding the constating documents. Can you walk us through those changes? What are those quantificational changes that you filed yesterday?
LISTNUM 1 \l 1130 MR. BIBIC: Certainly. I will turn it over to Craig McTaggart to walk you through that letter, Mr. Chairman.
LISTNUM 1 \l 1131 MR. McTAGGART: It is my pleasure, Mr. Chairman.
LISTNUM 1 \l 1132 This letter explains certain changes, in fact all of the changes that have been made to the constating documents of the CCTS since the original versions were filed with the Commission on the 23rd of July. I will just go through them one by one. They are quite minor changes.
LISTNUM 1 \l 1133 The first one is a change to the French name of the corporation. As the letter says, it was brought to our attention early on and, indeed, Commission staff were perhaps the most helpful with regards to this point. We decided that it would be in the best interest of the company to change the name in French, and we did that quite promptly and received supplementary letters patent on August 3.
LISTNUM 1 \l 1134 The second change was to correct an error in the by‑law that I think parties will recognize was inconsistent with the rest of the materials filed on the 23rd of July. In the section of the by‑law relating to the eligibility of government employees or, more accurately, those who have recently be government employees to serve as independent directors, the three‑year, what we call cooling off period was incorrectly indicated to apply to recent government employees. There is no three‑year cooling off period for those who have recently served as a government employee that would otherwise make them ineligible to serve as an independent director.
LISTNUM 1 \l 1135 The next change relates to the timing of the constituting of the full board of directors. Parties will understand that in the by‑law, the members made specific provision for the ending of the life of the provisional board and the constituting of the full independent board within 90 days of the start of the CCTS. When the public notice was issued, we felt that it would be prudent to stop the process of populating the board, given the uncertainty with respect to its final form. So, a technical amendment was required to the by‑law to simply move that 90 day time period to 90 days out from the Commission's decision in the proceeding, instead of 90 days from the start of the CCTS.
LISTNUM 1 \l 1136 The next changes relate to the membership agreement. So, a separate document. The first one described as modification to forborne revenue reporting mechanism is really kind of an internal funding matter of the members, but, again, the membership provided a particular mechanism by which the cost sharing mechanism process would work. It did not prove possible to implement the mechanism that we originally planned. We had to come up with an alternative. That alternative was agreed to by all the members and certain changes with required to the membership agreement.
LISTNUM 1 \l 1137 I can go into those in detail later if there is interest, but I don't expect that I need to right now.
LISTNUM 1 \l 1138 The next change is described as clarification regarding single start‑up cost fee for affiliates, simply clarifying that corporations that are affiliates of each other need not pay a separate start‑up cost fee every time one joins. Again, this change was consented to by the members.
LISTNUM 1 \l 1139 The next clarification relates to the effective date of new membership. This simply clarifies that a member becomes a member of the CCTS upon executing the membership agreement, clarifying a clause that was originally in the membership agreement. It made it unclear whether membership was effective immediately or on the first day of the following quarter. That actually applies to the funding obligation, not the membership currency. So, again, just a bit of an internal clarification matter for the members.
LISTNUM 1 \l 1140 The final point, and this is a change that was just made last week because the potential inconsistency in the documents only came to our attention last week. This is the one entitled "Clarification regarding publication of decisions rendered by Commissioner." Despite the documents having been reviewed by many people over the course of several months, one of our members pointed out that by operation of section 15.3 of the procedural code, decisions of two types would be made public.
LISTNUM 1 \l 1141 It has been the intention of the members since early summer when, on the recommendation from the consumer groups who we met with in June, we made provision for final decisions of the Commissioner to be made public. In the procedural code, it is provided that recommendations of the Commissioner that are accepted by the parties become decisions. That was put in place more with an eye to enforcement of the decision against the member than with respect to publication. Frankly, we didn't think about how that might operate to suggest that accepted recommendations will become public as well.
LISTNUM 1 \l 1142 That was not the intention of the members and that is inconsistent with the materials that the members have provided to date.
LISTNUM 1 \l 1143 So, this last change merely indicates by way of a change to section 15.3 of the procedural code that only decisions that are rendered by the Commissioner following an unsuccessful recommendation stage, only those decisions would be made public, not decisions that only became decisions by operation of the procedural code, but really were accepted recommendations.
LISTNUM 1 \l 1144 THE CHAIRPERSON: Run that by me again.
LISTNUM 1 \l 1145 MR. McTAGGART: Remember that at the recommendation stage the Commissioner is still trying to facilitate a solution among the parties that they can both agree to. If either party rejects that recommendation, then the matter moves to the final binding decision stage. But if both of the parties accept it, that resolves the matter; that ends the matter, but by operation of the procedural code, that accepted recommendation becomes a decision.
LISTNUM 1 \l 1146 As I say, that was done mainly so that it could be enforced against the member like any other decision. It wasn't done with the purpose of making that accepted recommendation public. The intention was only that the final rendered formal decisions of the Commissioner would be made public.
LISTNUM 1 \l 1147 THE CHAIRPERSON: In short, only the decisions that are imposed by the Commissioner will be made public?
LISTNUM 1 \l 1148 MR. McTAGGART: That is right, and that is exactly the change that was made in that last clause.
LISTNUM 1 \l 1149 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 1150 First of all, Mr. Bibic and other members of the panel, I am delighted that we have a CCTS and it is up and running.
LISTNUM 1 \l 1151 As you know, at the telecom summit, I challenged industry to put it up and have it operational before the first forbearance order would become effective, and you managed to meet that challenge and put it up and in operation.
LISTNUM 1 \l 1152 I am delighted to hear from Mr. McKendry that it seems to be working rather well.
LISTNUM 1 \l 1153 That being said, obviously we have to now look in detail whether this temporary creature meets all the requirements of the Order in Council and is the best way to resolve these issues.
LISTNUM 1 \l 1154 I am going to ask you some questions on governments and remedies; my colleague, Len Katz, on membership and operation; and Michel Morin on mandate and delegation. They don't fall that neatly into categories and there will be certain overlap, et cetera.
LISTNUM 1 \l 1155 Let's start off with membership. Len.
LISTNUM 1 \l 1156 COMMISSIONER KATZ: Thank you, Mr. Chairman.
LISTNUM 1 \l 1157 Can I take the panel to their page 8 on membership, and perhaps ask them, in the second sentence it says:
"While we can certainly see the advantages to all or substantially all TSPs being members..." (As read)
LISTNUM 1 \l 1158 Can you cite for us what some of those advantages that you have alluded to here would be?
LISTNUM 1 \l 1159 MR. BÉLAND: Yes. The principal advantage I guess would be a financial one, spreading the costs. Some of the costs of the Commissioner are fixed. Most are probably variable, but to the extent that there are some fixed costs and you have more members, you clearly spread those costs.
LISTNUM 1 \l 1160 COMMISSIONER KATZ: Are there any other ones?
LISTNUM 1 \l 1161 MR. BÉLAND: Perhaps related to visibility as well, but that is principally what we had in mind, is that sure, we would all be happy if more and more telecommunication service providers joined the organization, but once again, we are not of a view that that needs to be mandated.
LISTNUM 1 \l 1162 MR. BIBIC: From our perspective, I would harken back to my opening comments, which is it is the design of an agency of sorts; it is a powerful avenue for consumers to resolve their complaints and, at the end of the day, I am sure I will be speaking on behalf of all members here, that customer service is top priority for all TSPs, so this is another avenue to resolve complaints.
LISTNUM 1 \l 1163 From Bell Canada's part and Bell Aliant, we don't like to see bad press about customer service and when we can't address customer concerns on a bilateral relationship and this can provide an avenue to do that, I think that's a positive as well.
LISTNUM 1 \l 1164 COMMISSIONER KATZ: But to the extent that it is an avenue for customers, for some customers where the company has joined the CCTS; it is not an avenue for other customers who do not have availability of the CCTS because their underlying carrier has not joined.
LISTNUM 1 \l 1165 MR. BIBIC: And I think over time I could see the possibility that certain TSPs would seek to differentiate their global service offerings by virtue of the fact that they are a member and some others aren't.
LISTNUM 1 \l 1166 It is a bit difficult to answer that particular question from where we sit, Mr. Katz, because I mean you are asking us about mandatory membership when we voluntarily signed up to this thing and are quite willing to fund it and to proceed with it.
LISTNUM 1 \l 1167 None of the members here are members that have refused to sign on so kind of difficult to answer the question from the perspective of those who have chosen not to.
LISTNUM 1 \l 1168 THE CHAIRPERSON: Surely you can answer a conceptual question: Why should the consumer suffer just because one of his TSPs has decided not to become a member of CCTS? I mean, what's the rationale?
LISTNUM 1 \l 1169 You said in your opening this should be part of a competitive marketplace. So we have a competitive market making sure that the consumer doesn't suffer. We have CCTS. Why should it then depend on the voluntary joining of ‑‑ I mean, you can answer that question, notwithstanding that you have decided to join.
LISTNUM 1 \l 1170 MR. BIBIC: I suppose I could, Mr. Chairman. From my perspective ‑‑ right now I am going to speak for Bell Canada and Bell Aliant.
LISTNUM 1 \l 1171 From my perspective I don't feel very strongly about voluntary versus mandatory. I don't think it's necessary, but one way or the other I don't feel strongly. We are in, and if you choose to make membership mandatory I think we are getting into questions of jurisdiction and elegance of regulatory solutions of which I do have use, actually.
LISTNUM 1 \l 1172 Perhaps, Willie, you do too.
LISTNUM 1 \l 1173 MR. GRIEVE: Yes, we are in the same position. We don't really have any objection to it being made mandatory. We just have a problem with how it would actually be enforced ‑‑ enforced being, you know, jurisdiction and enforcement of making such a membership mandatory would be our major concern.
LISTNUM 1 \l 1174 And even if you pass the jurisdictional test how do you find 81 wireless ISPs in Alberta? How do you make it compulsory for people like every single carrier across the country ‑‑ not carrier ‑‑ every single TSP and how do you enforce it on TSPs?
LISTNUM 1 \l 1175 I know the Commission has asked these questions but even if you could find every one I'm not sure how you would enforce it. I was thinking this morning, for example, Shaw has decided not to join. I mean, you couldn't really disconnect Shaw for not joining.
LISTNUM 1 \l 1176 COMMISSIONER KATZ: I mean, it begs the question if someone has joined, the service provider has joined and the underlying network provider from whom they buy services has voluntarily opted out and a complaint comes in, I'm not sure how that small business ‑‑ that consumer can get adequate relief from the CCTS, given that they will look at it ‑‑ they will look at the service provider and say, "Well, you bought services from somebody else. Unfortunately, that party is not a member here so we can't investigate it" and the small business guy is just out.
LISTNUM 1 \l 1177 MR. BIBIC: Yes, it's a competitive market and they have the option of switching providers or other industry bodies like this and other industries, even in industries under the jurisdiction of the CRTC which are voluntary.
LISTNUM 1 \l 1178 At the end of the day; again, for Bell Canada and Bell Aliant, and others can subscribe to my view if they wish, but our principle concern is with enforcement of mandatory membership. The principle of making membership mandatory doesn't concern us all that much. It's how you go about enforcing it.
LISTNUM 1 \l 1179 Under the Telecom Act, as it is constructed today, the Commission has to take the very inelegant regulatory solution of indirectly making Canadian carriers responsible for the behaviour of those which are not subject to their direct jurisdiction.
LISTNUM 1 \l 1180 And the last thing we would want from a policy and practical perspective from our end, Bell Canada and Bell Aliant, is being forced to investigate whether or not the multitude of TSPs that are out there, and wireless ISPs and basic local phone service providers, are members and what to do if they are not.
LISTNUM 1 \l 1181 Would it be encumbent on us to then file applications with the CRTC to disconnect, for example ‑‑ just as an example ‑‑ some of these carriers or providers who aren't members because they are not members?
LISTNUM 1 \l 1182 I mean, those are the kinds of things that I would be very reluctant to engage into. But the concept doesn't disturb us.
LISTNUM 1 \l 1183 THE CHAIRPERSON: I am unclear now. In your opening statement you say it is voluntary. Now, I hear you, Mr. Grieve, saying you are indifferent as to whether it is made mandatory or not.
LISTNUM 1 \l 1184 Do the founding members have a position or not?
LISTNUM 1 \l 1185 MR. BIBIC: We can all agree that voluntary is the best way to go and when we ‑‑ when you start asking questions about mandatory membership I spoke on behalf of Bell Canada and Bell Aliant and TELUS spoke on ‑‑ Willie spoke on TELUS' behalf.
LISTNUM 1 \l 1186 THE CHAIRPERSON: Well, can I hear from Quebecor and MTS?
LISTNUM 1 \l 1187 MR. B_LAND: Yes, I think if we step back just a moment, you know, and I will maybe address the thought process by which Videotron joined this organization.
LISTNUM 1 \l 1188 The major ILECs came to us at a certain point with a proposition for the creation of the Commissioner for Complaints. We didn't consider that we had any obligation to join this organization.
LISTNUM 1 \l 1189 We looked at the proposal. We were interested in particular about whether it would provide in our view concrete value to our customers, and we saw that in the proposal. It's a very tightly‑focussed organization on the resolution of complaints. We saw that as being valuable to our customers and we saw that also as being valuable to ourselves because we will be able to say to our customers that they have that backup.
LISTNUM 1 \l 1190 We also looked at issues of financial accountability. We wanted to make sure that the structure was one which would have appropriate financial controls. We wanted to focus ‑‑ we looked very closely at the scope of the organization to ensure that it is truly a complaints resolution organization rather than some sort of new regulatory body that would be replacing the CRTC.
LISTNUM 1 \l 1191 So all that put together, our decision to adhere was actually relatively easy and we adhered with enthusiasm.
LISTNUM 1 \l 1192 That being said, if other people in our own market or in other markets of Canada choose not to adhere for their own particular reasons ‑‑ perhaps they have doubts about the ultimate effectiveness of the organization ‑‑ we don't see that refusal on their part to adhere as being necessarily inconsistent with the broader context in which we are operating here.
LISTNUM 1 \l 1193 We are operating in a broader context of competition. We are dealing with services where the Commission has foreborne from regulation because competition can serve the interests of consumers. We are dealing with an order in council; with a government who has issued numerous directives in recent years, clearly focussed on a belief in the power of market forces, on regulatory intervention that is limited and proportional to the objectives.
LISTNUM 1 \l 1194 Ultimately, we believe once again that consumers will see value in this organization. Service providers that adhere to this organization will benefit from that and will gain value themselves. But in a broader context of a philosophy where market forces protect the interest of consumers, we don't see any inconsistency with saying that service providers have a choice as to whether to join the organization.
LISTNUM 1 \l 1195 COMMISSIONER KATZ: Well, let me take this in two stages.
LISTNUM 1 \l 1196 Sorry, go ahead.
LISTNUM 1 \l 1197 MS CROWE: MTS Allstream is, you know, of a similar opinion. We voluntarily agreed to join the CCTS because we see a value to our customers in doing so and having an effective and a cooperative means of dealing with customer complaints as forebearance is rolled out.
LISTNUM 1 \l 1198 But saying that, I think it's important to realize that we have voluntarily agreed to things that we, you know, might have more problems with if they were mandated or if it was mandated by the Commission to join the CCTS. There are things that we have voluntarily agreed to in a cooperative ‑‑ to be cooperative and to create an effective CCTS.
LISTNUM 1 \l 1199 For instance, right now the Commissioner can award monetary awards of up to $1,000 for loss, damage or inconvenience but it's questionable whether the CRTC would have the authority to require membership in an organization that could impose that. There is also no appeal right for TSPs right now from a final decision of the CCTS and that's something we would certainly, you know, think about again if it were a mandated organization.
LISTNUM 1 \l 1200 I just also add that one of our members who isn't here today, SaskTel ‑‑ I can't speak for SaskTel but they are very much of the opinion that membership should be voluntary. I believe they just filed a letter to that effect and, you know, feel that there are other avenues for their customers besides the CCTS.
LISTNUM 1 \l 1201 COMMISSIONER KATZ: Can I take this in two trenches? One is the notion that some people who aren't members today and haven't signed up, and I heard what you had to say. The other is what I call the "opt out provision" for the members themselves.
LISTNUM 1 \l 1202 Do you as a membership group feel that you absolutely need an opt out provision so that it is voluntary and if you are not happy you can leave, or are you comfortable with the fact that you are all there and you have no problem with membership being mandated for you?
LISTNUM 1 \l 1203 MR. BIBIC: On the issue of opt out, and we have all entered this in good faith to do the right thing by the consumer and to meet the requirements of the OIC, so as I sit as here today we certainly have no plans to exit, but we all need to recognize that the world evolves. And I don't know how it will evolve but it could be that down the road, some period of time down the road, the body is no longer necessary or a particular member is dissatisfied with the way the agency is being run, and if a group like this is still necessary I wouldn't foreclose the possibility of any member or group of members wishing to start another more effective one.
LISTNUM 1 \l 1204 So there are a number of reasons why parties may want to opt out but, again, that is not in our contemplation as we sit here today before you.
LISTNUM 1 \l 1205 COMMISSIONER KATZ: If you were would you foresee an application to the CRTC suggesting a change in the composition of the CCTS, or would each member just be free to come and go as they will?
LISTNUM 1 \l 1206 MR. BIBIC: Well, the way I see it is if membership remains voluntary and a number of members opt out down the road and the Commission still feels that the state of the market is such that an agency like this is required, then I think it is certainly open to the Commission to re‑evaluate the issue of voluntary versus mandatory. So I think that's how I would see it unfold if membership today were voluntary.
LISTNUM 1 \l 1207 If the Commission were to impose mandatory membership today and circumstances were to change in the future, such that parties felt that it should no longer be mandatory, then in that world I would envision a member or group of members choosing to file an application with the CRTC saying: Look, the world has changed and this is no longer necessary, or membership is no longer ‑‑ it's no longer necessary to have membership mandatory.
LISTNUM 1 \l 1208 So, it depends where we start from, but I think either way we all need to recognize that the world will undoubtedly evolve and we will all adjust accordingly.
LISTNUM 1 \l 1209 COMMISSIONER KATZ: I guess, you indicated early on what the views of the members are and what you are trying to represent. One of the things the CRTC's role is to look at for the small business and consumers as well. And obviously the direction, or the order asked us to oversee the creation of this as well and that was post the policy direction where the government basically indicated they wanted to see competition sped up as well.
LISTNUM 1 \l 1210 So, I don't see them in disarray at all. Maybe what I am hearing, and maybe I am confusing it too, but is the membership saying or the members saying that the reason that you believe it has to be voluntary is because of the way the policy direction has been framed and utilizing the least intrusive avenue?
LISTNUM 1 \l 1211 MR. BIBIC: We don't think mandatory membership would be necessarily in conflict with the policy direction, but we also believe that voluntary membership is more in keeping with the principles in the policy direction. That's how I would answer that.
LISTNUM 1 \l 1212 But again, I mean, the biggest concern some of the members have is really with how you make mandatory membership operational.
LISTNUM 1 \l 1213 MR. GRIEVE: There's one other point that was raised by Shaw in its submission, that was, mandatory membership brings with it mandatory funding.
LISTNUM 1 \l 1214 And in Shaw's view there's a problem, a jurisdictional problem with that in the sense that the Commission doesn't have the authority to order someone to make a contribution except to funding a particular body, except for the contribution mechanism provisions of the Act.
LISTNUM 1 \l 1215 So, you know, I think it's sort of ‑‑ you might mandate membership in an already existing body, but then you'd fall short or you may fall short on the funding requirements.
LISTNUM 1 \l 1216 COMMISSIONER KATZ: I am not sure I got an answer to my question.
LISTNUM 1 \l 1217 How would the membership deal with, or how would, I guess, Mr. McKendry in his acting position deal with a complaint that was directed from a service provider who was actually buying facilities from a third party who wasn't a member?
LISTNUM 1 \l 1218 MR. BÉLAND: Yeah. I wanted to come back to that point in fact because I didn't want it to stay out there without a response.
LISTNUM 1 \l 1219 The Commissioner of Complaints' tasks are focused resolutely on the retail contractual relationship between a service provider and the retail customer. Whatever suppliers or inputs the service provider may have behind that are not at all the affair of the Commissioner.
LISTNUM 1 \l 1220 You've given one example of maybe one telecommunications service provider using telecommunications services of another provider in an underlying sort of capacity. Probably everyone at this table uses those sorts of arrangements in some way or another.
LISTNUM 1 \l 1221 You could even extend it though to equipment. Videotron, we may one day find that we purchase lousy modems and they're causing complaints. No one, I don't think, would suggest that our modem supplier should somehow be pulled into this process as a party to resolving those complaints.
LISTNUM 1 \l 1222 So, the view of the members is that when the Commissioner is faced with a particular complaint related to a particular retail service, the Commissioner looks at the engagements effectively that the service provider has taken in the service contract with that customer and evaluates whether the service provider has adhered to those engagements.
LISTNUM 1 \l 1223 If the service provider has made bad choices in terms of buying faulty T‑1s from another telecommunications service provider or buying faulty modems from an equipment supplier or, for that matter, if Bell Canada has failed to port a number, a telephone number to Videotron on time, that's really Videotron's problem. In the context of a retail/consumer complaint, it's our responsibility to deal with our suppliers in the background.
LISTNUM 1 \l 1224 So, I don't think the concerns about underlying providers need at all drive the notion of a mandatory membership.
LISTNUM 1 \l 1225 COMMISSIONER KATZ: Thank you. Those are all my questions, Mr. Chairman.
LISTNUM 1 \l 1226 THE CHAIRMAN: Mr. Bibic, you said your biggest concern was whether the Commission has the ability to make membership mandatory?
LISTNUM 1 \l 1227 MR. BIBIC: Well, there's a question about jurisdiction, but the biggest concern is actually how we make it operational.
LISTNUM 1 \l 1228 So, if the Commission were to say, yes, membership is mandatory, how does one do that for providers who are not subject to the direct jurisdiction of the CRTC under the Telecom Act?
LISTNUM 1 \l 1229 The way one can do that is the way it's done in other contexts, which is to say, well, you know, those carriers who are subject to our jurisdiction have to amend their terms of conditions of whichever service it is that they provide to those who we don't regulate, then we get into a situation of enforcement.
LISTNUM 1 \l 1230 So, take one of Telus' ‑‑ one of the ISPs out in Alberta, they're small and tiny who may not be subject to your direction jurisdiction, although they probably would be, but take another reseller, for example.
LISTNUM 1 \l 1231 THE CHAIRMAN: Yes.
LISTNUM 1 \l 1232 MR. BIBIC: What happens if the reseller doesn't join? Who does what to whom in the context of forcing mandatory membership? Is it up to us to enforce, is it up to us to disconnect, is it up to us to file an application with you to say we will disconnect, or is it up to the Commission to police and enforce?
LISTNUM 1 \l 1233 I mean, that's an issue that does definitely concern us.
LISTNUM 1 \l 1234 THE CHAIRMAN: Yes, and we specifically asked you to comment on that and I am trying to find out ‑‑ you say you don't like the idea, but didn't we ask you specifically to say whether it is doable and how and what would be the most efficacious way of doing it?
LISTNUM 1 \l 1235 MR. BIBIC: Okay. Well, let's take it into two chunks. I'll turn it over to Mr. Grieve to talk about whether or not you can do it and perhaps I can go back at whether or not it's a good way of doing it.
LISTNUM 1 \l 1236 THE CHAIRMAN: Okay.
LISTNUM 1 \l 1237 MR. GRIEVE: The Commission asked about three sections of the Act, the connection of facilities section, section 40, whether that would be a jurisdictional basis for imposing mandatory membership in the CCTS.
LISTNUM 1 \l 1238 And we've looked at that section a number of times, of course, over the years and it really does deal with, on the plain reading, interconnection and connection of facilities and you would expect that any conditions that were made would have something to do with compensation or something related to the interconnection or connection itself.
LISTNUM 1 \l 1239 I will come back to section 40 in a moment though.
LISTNUM 1 \l 1240 So, I don't think you could find it there. And 32(g) under general powers it says:
"The Commission may, for the purposes of this part, in the absence of any applicable provision in this part, determine any matter and make any order relating to rates, tariffs or telecommunication services." (As read)
LISTNUM 1 \l 1241 MR. GRIEVE: And it seems to me that's really conditions of service, the definitions of the service, quality of service, those kinds of things in addition to the rates. So, I don't believe this section would contemplate something like that.
LISTNUM 1 \l 1242 The one that comes closest for you I think is section 24, conditions of service, and the Commission has used section 24 in the past. It says:
"The offering and provision of any telecommunication service by a Canadian carrier are subject to any conditions imposed by the Commission or included in a tariff approved by the Commission." (As read)
LISTNUM 1 \l 1243 MR. GRIEVE: I think the key word here is, "...the offering of any telecommunication service...", the actual going into the business because that's really what you're talking about here is imposing something that would be akin to a licence condition, you can't do business unless you're part of this thing.
LISTNUM 1 \l 1244 And so, you know, what the Commission has done in the past to enforce that in the day when everyone ‑‑ well, when the ILECs had tariffs and everyone would connect using tariffs was, it would put in conditions of an interconnection tariff based on section 24 or they put as a condition of forbearance based on section 34, using section 24, things like compliance with confidentiality terms, alternate billing formats, competitor access to MDUs, unsolicited communications, cable company ‑‑ in the fact the cable company obligation to provide TPIA service at a discount finds itself in section 24 and the no bypass rule in section 34 ‑‑ that came out of section 34, section 24 was used for that.
LISTNUM 1 \l 1245 And then section 24 has been used to assign all of those responsibilities to resellers as a term and condition of those resellers using the tariff services of the carrier.
LISTNUM 1 \l 1246 Now, you know, like a lot of these ‑‑ or all of these really have to do with the actual terms and conditions of services, things that you do as part of the term and condition of service. Of course, section 24 has never been judicially considered, so I can't turn you to any case law on it.
LISTNUM 1 \l 1247 You know, you might be able to go after compulsory membership under section 24. I don't know where you would put the condition for carriers that are forborne across all of their services. You would probably have to put it as a condition imposed on interconnection tariffs and, of course, some carriers have asked that interconnection tariffs not be required, so then you'd have to find another way of imposing the condition and I'm not sure how you would do that other than a specific rule‑making under the Act, and I'm not aware that the Commission has actually employed its specific rule‑making function for any purpose.
LISTNUM 1 \l 1248 So, now we're down to ‑‑ let's say you do it and now we're into the enforcement question.
LISTNUM 1 \l 1249 THE CHAIRMAN: Can you speak closer to the mike, please.
LISTNUM 1 \l 1250 MR. GRIEVE: Sorry.
LISTNUM 1 \l 1251 THE CHAIRMAN: Just pull it up a bit.
LISTNUM 1 \l 1252 MR. GRIEVE: Yeah. So, assuming we get past section 24, then you're really into the enforcement question and Mr. Bibic has indicated that one of the difficulties that he says Bell Canada has expressed about using section 24 to impose a lot of service conditions on resellers is that it puts ‑‑ and by the way, TELUS has expressed the same concerns over the years ‑‑ it puts in this case the ILEC or at least the carrier in the position of having to police its tariffs because we are responsible to make sure people are complying with those tariffs.
LISTNUM 1 \l 1253 Then it is a question of what is the remedy. We have talked about this internally many times. So what if we find out that a reseller isn't complying with these things? The Commission is never going to let us disconnect a competitor. Why would they do that? They would try to find some other way to do it.
LISTNUM 1 \l 1254 So, I just think it gets very messy, Mr. Chairman, and I am not sure that you need to get that messy, at least at the outset.
LISTNUM 1 \l 1255 Mr. Bibic said a moment ago that he thought that we could let it go on a voluntary basis for a time, and see how it works out. If it becomes a problem, if there is a real need and people are opting out or people aren't joining who should be joining and it becomes a problem, then in that particular situation, you might look for a way to make it mandatory. The cleanest way, obviously, would be a legislative change to do that or to allow that kind of an order to be made.
LISTNUM 1 \l 1256 But I think at this point the membership is sitting back saying we are not sure about the jurisdiction. Even if you had the jurisdiction to do it, which you might, then how do you actually enforce it, how do you enforce payment of the membership fees which, as I mentioned before, is an issue raised by Shaw. How do we do all of these things in a way that is even reasonably efficient, and I think it just gets very messy.
LISTNUM 1 \l 1257 Once again, we are saying give it a try.
LISTNUM 1 \l 1258 THE CHAIRPERSON: Do you have anything to add, Mr. Bibic?
LISTNUM 1 \l 1259 MR. BIBIC: No. Mr. Grieve answered the operational ‑‑
LISTNUM 1 \l 1260 THE CHAIRPERSON: I hear what you are saying about jurisdiction has never been exercised this way. That doesn't mean it can't.
LISTNUM 1 \l 1261 On the assumption that I disagree with you, I don't see why one consumer should have more rights than another just because his TSP decides to join or not.
LISTNUM 1 \l 1262 Assume for argument's sake that if challenged, we are successful in maintaining it, we can do it, what would be a practical way of doing it so as to not impose upon you ‑‑ because enforcement, as you suggested, will be indirect ‑‑ an undue burden or make your operations more difficult than they have to be? What would be the cleanest way of doing it?
LISTNUM 1 \l 1263 MR. GRIEVE: I am not sure there is anything the Commission could do to make it cleaner for us.
LISTNUM 1 \l 1264 If we find ourselves in a situation where we are the ones required to enforce a rule against a reseller, a rule of mandatory membership, I am not sure there is anything the Commission can do in a mandatory order that would make it easier on us.
LISTNUM 1 \l 1265 If the Commission said all ISPs registered with the Commission, assuming that all ISPs are registered, because in fact we can probably be assured that there are ISPs and Canadian carriers out there that don't even know that they need to register, so assuming we could say all registered ISPs must be members, somebody has to take the next step, somebody has to go out and contact every one of those ISPs.
LISTNUM 1 \l 1266 So, let's say they were all contacted, the Commission made some sort of an effort there, first of all, is it the CCTS that goes and contacts them? Then the CCTS has to find out if they refuse to join or if they fail to join, has to figure out what is the remedy now for this? Do we disconnect them? What if it is an ISP not even connected to the public internet through a Canadian facility? What if they are connecting through an American facility along the border say in Vancouver or something like that, but they are operating in Canada?
LISTNUM 1 \l 1267 There are so many things that we would have to find out in order to go and even come back to the Commission with a proposed remedy. As I said, I don't know that there is anything the Commission could do in an order unless Mr. Bibic can think of anything that would make life any easier for the CCTS and its members to enforce that.
LISTNUM 1 \l 1268 THE CHAIRPERSON: You went into all sorts of other points from an operational point, but I started off from the very simple point that if we say it is mandatory and there is somebody who does not join and, as I say, we tie it to section 24, et cetera, I think we need to think it through. Mr. Bibic says give it a try and see if in six months it doesn't work, maybe then you have to do it. Well, the issue will be the same then as now, whether we make it mandatory up front or whether we make it in six months. I think it behooves us to think through how could this be done, et cetera.
LISTNUM 1 \l 1269 That is why we posed the question to you. I must say I am somewhat disappointed that I have just got an answer that it should be voluntary, not some concrete suggestions of how it could be done. Then it is obviously for us to say in light of this, is it worthwhile or not?
LISTNUM 1 \l 1270 But to decide it on the abstract is not having a good grasp of the practical implications. It makes it more difficult for us. Maybe you can think about it and as a follow up give us some suggestions on that point.
LISTNUM 1 \l 1271 MS CROWE: One thing that could be done, and I still think much of the effectiveness of the current structure of the CCTS could be impacted negatively if it were mandated, but one thing that could be done is there would be a communications plan when the CCTS is fully launched, whatever form it is in. So, presumably customers would be aware when they contacted the CCTS and the CCTS found that the TSP they were complaining about was not a member, presumably that member could be identified at that point, just in terms of identifying TSPs that were non‑compliant, and then the Commission could decide how to handle it at that point.
LISTNUM 1 \l 1272 That is one thought.
LISTNUM 1 \l 1273 MR. BIBIC: Mr. Chairman, we will give it some more thought. We hear you.
LISTNUM 1 \l 1274 I have to say, though, that using Canadian carriers as indirect conduits to regulation of carriers who aren't subject to your direct jurisdiction isn't an issue that is just applicable to this. It is an issue we have had difficulties with before.
LISTNUM 1 \l 1275 I know this answer is not going to give you comfort, but certainly legislative change would be nice. But at the end of the day, I think if you could develop a solution, we will try to get more precise, but that just was reasonable and exercised good judgment.
LISTNUM 1 \l 1276 So, if the problem is Shaw, that is easy to identify. They are big. We can deal with that. But if it is a question of investigating and policing and scouring the country for every little TSP that may or may not have joined and figuring out what to do with them, I think now we are getting into a whole bunch of practical difficulties and costs which, I would submit from my perspective, probably outweighs the benefit.
LISTNUM 1 \l 1277 THE CHAIRPERSON: That is not the question I posed to you.
LISTNUM 1 \l 1278 This whole process is complaints driven. So, Mr. McKendry gets the complaint from somebody and you find out it is somebody who has not joined, what do we do at that point in time? Not scouring the country, as you put it, and finding unregistered ISPs. What would we do in that instance? How do we, in effect, get that person to sign up so that the dispute can be resolved by Mr. McKendry? That is the dynamics that I am looking at.
LISTNUM 1 \l 1279 MR. BIBIC: In that case, that gives me more comfort and perhaps we will come back to you with particular practical solutions as to how we can deal with that.
LISTNUM 1 \l 1280 THE CHAIRPERSON: Mr. Bibic, I look at it this way. The government clearly wants to see forbearance, tells us to use market principles and only regulate in case of market failure. We have done that.
LISTNUM 1 \l 1281 But at the same time, they said make sure the consumer is not left out, and they have suggested this in the Order in Council. You have read it; you have studied it in detail, et cetera.
LISTNUM 1 \l 1282 Clearly, it says consumers, not consumers of ISPs who have joined the CCTS. It talks about consumers generally. How do we reconcile those two things? That is our problem.
LISTNUM 1 \l 1283 In terms of membership, I think that covers it.
LISTNUM 1 \l 1284 Let's go over to governance. First of all, I see that for the independents, you have one consumer member to be nominated by some consumer groups, and then you have four independents. What I don't quite understand is with the definition of independents, I see your new letter which suggests that the nomination will be done by the nominating committee of three eminent Canadians, picking the nominees from a list found by a headhunter.
LISTNUM 1 \l 1285 But the qualification for these independents, if I understand it correctly, will, for instance, exclude former Commissioners. My colleague, Joan Pennyfather, no longer on the committee would not qualify the way I read it. It seems to me that anybody who has been here for the last three years, or did I get that wrong?
LISTNUM 1 \l 1286 MR. McTAGGART: Mr. Chairman, that is precisely one of the changes that I read this morning, the second one on that list. We had to make a correction to the documents regarding the eligibility of people who had previously been government employees.
LISTNUM 1 \l 1287 We eliminated what we call the three‑year cooling off period for those people. So, that has been changed. It was not the original intention to exclude them.
LISTNUM 1 \l 1288 THE CHAIRPERSON: I see. How did you come to the specific number of four independent and three industry for a total of seven? Any magic in why it was seven, why it was not nine or why there is just one more independent than there are industry? I would like you to explain what rationale led you to this decision.
LISTNUM 1 \l 1289 MR. McTAGGART: Mr. Chairman, the logic there started with the principle that industry directors had to be a minority. So that was the base line.
LISTNUM 1 \l 1290 Then the concept was that the majority would be comprised of individuals who are independent. We were inspired in that principle by the board of the Ombudsman for Banking Services and Investments, the OBSI, which uses the very same model of a majority of independents and a minority of individuals put forward by industry. So, the original concept was four independents, three industry.
LISTNUM 1 \l 1291 Following consultation with consumer groups in June, we agreed to designate one of the four independent director positions as a person who was put forward by consumer groups, and the concept there is that any consumer group that wants to participate in the process of nominating an individual can do so. The board will recognize them, and it is up to that group to put forward that name.
LISTNUM 1 \l 1292 I will stop there.
LISTNUM 1 \l 1293 THE CHAIRPERSON: But implicit in this is that a consumer is a different independent than the other three independents.
LISTNUM 1 \l 1294 I mean, the three independents to be nominated by the three wise men and then to become self‑perpetuating cannot be consumers. I am interested to know why you make that distinction. I would have thought a consumer is also an independent.
LISTNUM 1 \l 1295 MR. BIBIC: It is consumer groups, not consumers. Certainly the three independents will likely be consumers, we hope.
LISTNUM 1 \l 1296 We think that one board seat designated specifically to consumer group advocates is reflective of the role of consumer groups in the regulatory ecosystem, as it were, for telecommunications. It is reflective of their role. They would have a board seat.
LISTNUM 1 \l 1297 As for the other three, I think it is best for everyone concerned to have independents in the true sense of the word, independent from industry members and for those who participate quite actively in the ecosystem.
LISTNUM 1 \l 1298 THE CHAIRPERSON: Given the reality of this country, we have very active consumer groups in Quebec; we have some other groups who are outside Quebec, et cetera. If they can't agree on a joint one, would you be amenable to have two consumers and, therefore, enlarge the board so that you still get the numerical differentiation, but you allow in effect to have a French and an English consumer group representative?
LISTNUM 1 \l 1299 MR. BIBIC: There is some of us here, but the entire membership isn't here, so if you would allow me to consult with all the other members, perhaps we can get back to you, Mr. Chairman, on that one.
LISTNUM 1 \l 1300 THE CHAIRPERSON: The board sort of works, as I understand it, by either simple majority with special resolution, or by extraordinary resolution. My summary is basically simple majority is for the appointment of auditors, the appointment of secretary and treasurer and other business. But then special resolution, which is five out of seven, you need the approval of the annual report, election of independent directors, appointment of the share, removal of a TSP, removal of a director. Then you have those extraordinary resolutions for such things as approval and amendment of the annual budget and business plan, appointment of the CEO, approval and appeal of the amendment of by‑laws, approval and appeal of amendment of any provision of the procedural code, removal of the CEO, amendment of letter patents and approval of industry codes of standard.
LISTNUM 1 \l 1301 It strikes me that that is relatively restrictive. Extraordinary, you are saying you need two out of three TSPs, and just with a TSP not being there could basically block any one of these, and five out of seven for the special resolutions.
LISTNUM 1 \l 1302 The subject matter, some of them I understand very clearly, are of concern, like the appointment of the CEO, which is obviously key. There is no question there.
LISTNUM 1 \l 1303 But let's go to a special resolution. Approval of the annual report. Why do you require a special resolution for that? Surely that is a report of the board. Why do you need to have a special resolution?
LISTNUM 1 \l 1304 MR. BIBIC: Let's deal with that one first. I look at it the other way, which it only takes one industry director to approve for it to pass.
LISTNUM 1 \l 1305 With respect to annual reports specifically, the primary concern there, to put it quite bluntly, is that I think the TSPs would be concerned with how information is disclosed in terms of potential misleading disclosures and disclosure of competitively sensitive information. So, in our view, it is quite an appropriate and limited check on that.
LISTNUM 1 \l 1306 I note there was a party or two, and I can't remember who they were, in their submissions who suggested, quite apart from this, but just suggested that there should also be an exclusion of liability for the Commissioner in terms of statements made by him or her in good faith. I think this would be one way of addressing that concern. It is just a very limited check where the TSP board members would say, is anything in here misleading or does it disclose something that is competitively sensitive information.
LISTNUM 1 \l 1307 So it acts in a way as a protection for the TSP and also for the Commissioner in that regard.
LISTNUM 1 \l 1308 THE CHAIRPERSON: Isn't it essentially Mr. McKendry's report? I mean, the annual report is the Commissioner's activities, what he has done, et cetera. You approve it and it then goes out, but it seems to me he will be writing it, he will be stating it, et cetera.
LISTNUM 1 \l 1309 Surely he will be sensitive to the various issues that you mentioned.
LISTNUM 1 \l 1310 MR. BIBIC: Well, we hope. We have no intention of writing this report or of censoring the report. The main concern was really with those two items, Mr. Chairman: Misleading disclosures and disclosure of competitively sensitive information. That is what motivated special resolution power for the annual reports, not to dictate what is in that report or what will be said. It will be the Commissioner's report, with that I agree.
LISTNUM 1 \l 1311 THE CHAIRPERSON: Or the appointment of a Chair for board meetings, why do you need a special resolution for that?
LISTNUM 1 \l 1312 MR. BIBIC: For which one?
LISTNUM 1 \l 1313 THE CHAIRPERSON: When you have a board meeting, I understand somebody has to chair that meeting. Right?
LISTNUM 1 \l 1314 MR. BIBIC: Yes.
LISTNUM 1 \l 1315 THE CHAIRPERSON: The vote has to be a special resolution, i.e. five out of seven have to agree who is going to chair a meeting?
LISTNUM 1 \l 1316 MR. BIBIC: I think it is the Chair of the Commission itself, Chair of the board of the CCTS itself that requires a special resolution. That goes back to the same kind of philosophy ‑‑
LISTNUM 1 \l 1317 THE CHAIRPERSON: So, Chairman of the agency basically.
LISTNUM 1 \l 1318 MR. BIBIC: Yes. The philosophy there, Mr. Chairman, is not unlike what you have with the hiring of the Commissioner.
LISTNUM 1 \l 1319 The way I conceive of this is for this to really be effective and to work you need really two things. At a high level, you need to meet the requirements of the OIC, including independents, and the members also have to have fundamental confidence in the system for this to really be effective.
LISTNUM 1 \l 1320 So, with respect to the Chair, I would have thought that the Chair would want to know that he has the confidence of the board membership at large. It is as simple as that. The same thing with the appointment of the Commissioner. At the end of the day, I would expect that the Commissioner would want to know that all groups that he will have to work with on a day‑to‑day basis have his confidence.
LISTNUM 1 \l 1321 THE CHAIRPERSON: Aren't you worried that you are building that in the possibility of a deadlock too easily by putting such requirements in?
LISTNUM 1 \l 1322 MR. BIBIC: For an appointment of a Chair, I wouldn't think so at all, Mr. Chairman.
LISTNUM 1 \l 1323 MR. McTAGGART: Perhaps I could clarify. The Chair must be drawn from the independent directors group.
LISTNUM 1 \l 1324 THE CHAIRPERSON: I appreciate that.
LISTNUM 1 \l 1325 On the extraordinary resolutions, as I say, I can see that you want an extraordinary resolution for amendments of letters patent or the appointment of the CEO, but some of the other ones strike me as ‑‑ approval or amendment of the annual budget or business plan. Why do you need an extraordinary resolution for that?
LISTNUM 1 \l 1326 MR. BIBIC: Mr. Chairman, on costs I have to say that cost structures are critical to us. They absolutely are critical to us. Financial accountability is critical in every single business, especially for those who are going to fund it, and all we are looking for is a measure of accountability with respect to the cost structure of the organization.
LISTNUM 1 \l 1327 If the costs run rampant, again there is a fundamental risk that there will be a loss of confidence in the system. In fact, I would have been quite comfortable coming before you and making a case that cost structure requires unanimous approval of the industry. But in this case, two‑thirds is sufficient.
LISTNUM 1 \l 1328 It would take all TSP directors to veto a budget.
LISTNUM 1 \l 1329 THE CHAIRPERSON: Mr. Bibic, why in extraordinary was this a special one? If you made that subject to a special, you would still require the TSPs ‑‑ there is no way that the independents could impose on you costs that you don't want. But you are going one step further. You are notching it up one level and bringing it from special resolution to an extraordinary resolution.
LISTNUM 1 \l 1330 MR. BIBIC: There is three categories of industry directors. There is an ILEC category, I believe, the cableco category, and the other TSP category. It is not necessarily the case, and I suspect we will not all be ad idem on all issues.
LISTNUM 1 \l 1331 Funding and cost structures are a big issue for us, Mr. Chairman. They are a big issue for us internally. It drives practically every single one of our internal business decisions, and we don't think it is unreasonable at all for reasonable checks and balances on cost structure to be implemented in the regime.
LISTNUM 1 \l 1332 THE CHAIRPERSON: Can you just answer my specific question? I buy that; you carry the freight so clearly you won't have a say on that and you don't want to have costs imposed upon you that you feel are unreasonable. But you have your special resolution. Already you have that protection. You notched it up one level here by saying, no, actually two out of the three TSPs have to approve it. That is why I am trying to figure out why you feel that is so vital.
LISTNUM 1 \l 1333 MR. BIBIC: It is not two out of three TSPs. It the two out of three classes of TSPs. So, the category of other TSPs may not end up paying as much of the cost as the other two categories, in which case they may not be as vigilant with respect to the cost structure on the one hand, or I could conceive of a situation where the other category, the other TSPs, the smaller TSPs are causing most of the complaints and, therefore, have to fund their disproportionate share of the costs, and they may be tremendously concerned with the cost structure, whereas an ILEC who is bigger, larger, may be willing to pay less attention to the issue, could simply pass the cost structure through.
LISTNUM 1 \l 1334 So, we thought that two out of three was reasonable in this context.
LISTNUM 1 \l 1335 MR. BÉLAND: If I might add, Mr. Chair, to be frank, this was an issue of concern to Vidéotron and the other cable carriers that have joined the organization.
LISTNUM 1 \l 1336 The potential of having a situation where one class of TSPs alone could in effect secure passage of all budgetary matters was something of a concern to our particular class of TSPs, to be frank.
LISTNUM 1 \l 1337 THE CHAIRPERSON: Okay, thank you. This shows the value of hearings like this. That there might be different interests between different classes of TSPs, I must confess, hadn't occurred to me. Now, I see the rationale when you talk about costs.
LISTNUM 1 \l 1338 What about some of the others like approval of repeal or amendment of any provisions of the Procedural Code? Again, you think that should be subject to an extraordinary resolution.
LISTNUM 1 \l 1339 MR. BIBIC: In terms of the Procedural Code, Craig will take that one.
LISTNUM 1 \l 1340 MR. McTAGGART: Mr. Chairman, the rationale there is that the Letters Patent, the by‑laws, the Membership Agreement and the Procedural Code really constitute the fundamental documentation of the organization, the fundamental legal structure.
LISTNUM 1 \l 1341 The Procedural Code defines the scope or the mandate of the agency, what services are in and out, what matters are in and out. As you have heard some of our Members say already today, that they made a decision to adhere to the CCTS based on a very specific design for the agency, a very specific indication of what is inside and outside of its scope.
LISTNUM 1 \l 1342 So in our view, the Procedural Code is a fundamental corporate document of the organization and therefore, as in any corporation, that kind of document would require a high level of concurrence to amend.
LISTNUM 1 \l 1343 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 1344 Any questions on this?
LISTNUM 1 \l 1345 COMMISSIONER KATZ: No.
LISTNUM 1 \l 1346 THE CHAIRPERSON: Michel?
LISTNUM 1 \l 1347 CONSEILLER MORIN : Je ne voudrais pas revenir dans les détails, mais d'une manière générale, il y a des organismes de protection ou de réception des plaintes du consommateur, comme en Australie, par exemple, où on a, d'un côté, trois représentants des consommateurs, trois représentants de l'industrie, et puis un autre qui est nommé par les deux parties.
LISTNUM 1 \l 1348 Est‑ce que, pour vous, les propositions que vous faites, qui vous donnent peut‑être pas... vous me direz, peut‑être pas un avantage, mais vous êtes déjà trois, vous avez trois indépendants, et puis un autre représentant des consommateurs.
LISTNUM 1 \l 1349 Si on avait une structure, disons, trois consommateurs, trois représentants de l'industrie, est‑ce que, pour vous, c'est une question de principe ou d'efficacité qui vous amènerait à me refuser ce modèle là, par exemple?
LISTNUM 1 \l 1350 Je vous pose la question d'une manière très générale. Est‑ce que c'est une question d'efficacité ou de principe?
LISTNUM 1 \l 1351 M. BÉLAND : C'est plutôt une question d'efficacité, Monsieur Morin. Je vais vous dire qu'on a examiné la structure en Australie, et on a tiré des conclusions, et je vais laisser la parole à monsieur McTaggart, qui connaît plus les détails de l'Australie que moi.
LISTNUM 1 \l 1352 MR. McTAGGART: Mr. Commissioner, I hope you will indulge me with an answer in English.
LISTNUM 1 \l 1353 The working group that put together the CCTS did look very closely at several other models for corporate structures, the Australian Telecommunications Industry Ombudsman or TIO being one.
LISTNUM 1 \l 1354 We also looked very carefully at very similar organizations closer to home that operate under the same legal system the CCTS does and I will return to those shortly but I will speak to the Australian TIO first.
LISTNUM 1 \l 1355 First, it is important to note that the TIO is a very different kind of body. The TIO is a statutory body whose powers and mandate and membership are mandated by legislation.
LISTNUM 1 \l 1356 Here, we are creating an industry body in corporate form and also a body that must exist within the Canadian corporate law framework. So it wasn't as easy as simply importing a different model.
LISTNUM 1 \l 1357 But one thing I want to point out about the TIO model is that in the working group's deliberations, informed of course very much by legal counsel, we came to the view that the TIO model would not satisfy the independence requirement of the order in council.
LISTNUM 1 \l 1358 The TIO's structure involves a traditional corporate board at the highest level that is dominated by the TSP members and then a separate body called a council, which I believe, as you have described, is half industry, half consumer, with an independent chair.
LISTNUM 1 \l 1359 Our analysis was that given the power that was reserved to the corporate board at the top level, that type of structure would not satisfy the independence requirements of the order in council.
LISTNUM 1 \l 1360 So what we tried to do instead was ‑‑ as I say, we looked at successful functioning models closer to home, the Ombudsman for Banking Services and Investments, the OBSI, being the primary one but there are others, the General Life and Health Insurance Ombudsman and the General Insurance Ombudsman.
LISTNUM 1 \l 1361 These are industry bodies in federally regulated industries in Canada that perform a very similar function to what the CCTS does and for that reason we were attracted to the Canada Corporations Act Part II, Corporate Structure, and in particular we designed a single governing body because whenever we tried to work with the Australian TIO body model and tried to create a structure that would be sufficiently independent, we ended up foreseeing two bodies that have very similar membership profiles trying to achieve the same level of representation on each body and it soon became obvious that there was no justification for having two bodies with very similar profiles.
LISTNUM 1 \l 1362 Mr. Bibic mentioned the efficiency reason and that shouldn't be dismissed. With an organization of our size, it would simply be inefficient to have two separate governing bodies and all of the associated costs and also the difficulty of populating those boards and it shouldn't be underestimated, particularly in today's economy in Canada.
LISTNUM 1 \l 1363 It is not a simple matter to populate a board with qualified independent directors and for that reason we didn't want to create a large board nor two separate bodies that would each require being staffed.
LISTNUM 1 \l 1364 I will end there and let you continue your questions.
LISTNUM 1 \l 1365 CONSEILLER MORIN : Mais vous n'êtes quand même pas en train de me dire que vous ne pourriez pas strictement avoir une structure comme celle de l'Australie?
LISTNUM 1 \l 1366 Est‑ce que c'est ça que vous me dites, que vous ne pourriez pas vraiment avoir une structure qui, sans être exactement le modèle australien, ferait la part entre les consommateurs, d'une part, et l'industrie, d'autre part, sur un pied d'égalité, techniquement là?
LISTNUM 1 \l 1367 M. BIBIC : Techniquement, Monsieur Morin, on serait d'accord qu'il y a un nombre varié... il y a plusieurs façons qu'on aurait pu établir la structure qui rencontrerait l'obligation que la structure soit indépendante. Il y a un nombre potentiellement illimité de structures.
LISTNUM 1 \l 1368 La question fondamentale en bout de ligne, c'est celle‑ci : Est‑ce que la structure qui a été établie par les membres, est‑ce qu'elle est indépendante, est‑ce que c'est un organisme indépendant?
LISTNUM 1 \l 1369 Nous, on prétend que oui, et si vous êtes d'accord, voilà, vous devriez approuver, selon nous.
LISTNUM 1 \l 1370 CONSEILLER MORIN : Petite question, peut‑être pour le modèle australien encore.
LISTNUM 1 \l 1371 Est‑ce que... en Australie, vous avez évoqué tout à l'heure que ça pourrait conduire à une explosion des coûts, en tout cas, à un certain dérapage. J'ai compris ça dans vos mots.
LISTNUM 1 \l 1372 En Australie, parce que les consommateurs sont très présents, représentent la moitié, sont en parité, finalement, avec l'industrie, est‑ce qu'il y a eu beaucoup de... est‑ce qu'il y a eu des dérapages, des explosions de coûts en Australie parce que les consommateurs étaient présents au conseil dans un nombre beaucoup plus important que celui que vous proposez?
LISTNUM 1 \l 1373 MR. McTAGGART: No, Mr. Commissioner, that wasn't what I was intending to suggest earlier. It is not my understanding that the explicit participation of consumer group representatives has resulted in any cost control problems in the Australian body.
LISTNUM 1 \l 1374 M. BÉLAND : Si je peux faire un commentaire, et j'avoue ne pas être très familier avec le modèle australien, comme j'ai mentionné tantôt.
LISTNUM 1 \l 1375 Vidéotron a été embarqué dans ce processus là après l'élaboration de base du modèle. Donc, je ne faisais pas partie de l'analyse du modèle australien.
LISTNUM 1 \l 1376 La seule chose que je dirais sans hésitation, c'est qu'il faut regarder tout ce qui est proposé comme un package, dans son ensemble. Aller voir la composition du conseil indépendamment des règles de votation sur telle et telle et telle question serait, évidemment, dangereux.
LISTNUM 1 \l 1377 Nous, quand le modèle nous a été présenté chez Quebecor Media, chez Vidéotron, on a évalué le package dans son ensemble. On avait un couple d'exigences de base, et on a trouvé que le modèle satisfaisait à nos exigences.
LISTNUM 1 \l 1378 Une exigence de base, c'était la responsabilité financière. D'une façon ou d'une autre, ceux qui paient doivent avoir un mot à dire sur le budget de l'organisme. C'est clair, absolument clair pour nous.
LISTNUM 1 \l 1379 Une autre exigence fondamentale de la part de Vidéotron, c'était le contrôle sur l'évolution du mandat de l'organisme, que ça soit via le Code procédural, via d'autres expansions possibles.
LISTNUM 1 \l 1380 Ce qui est devant nous aujourd'hui, c'est un organisme, encore une fois, focussé de façon résolue sur le règlement de plaintes, dans un contexte contractuel, au détail entre un fournisseur et un client.
LISTNUM 1 \l 1381 Toute possibilité de dépassement de ce mandat là, si ça va dans le sens d'une agence de réglementation plutôt qu'une agence de règlement de plaintes, serait très inquiétante pour nous, et c'est de là que viennent les règles de votation extraordinaires sur certains sujets.
LISTNUM 1 \l 1382 Donc, je pourrais peut‑être commenter la mathématique de la composition du conseil d'administration, mais on ne peut pas l'isoler des règles de votation, puis des sujets qui sont assujettis à des règles de votation spéciales ou extraordinaires.
LISTNUM 1 \l 1383 CONSEILLER MORIN : Mais avec ces règles de votation, avec la nomination des membres au conseil, est‑ce qu'on peut dire que cet organisme est vraiment un organisme indépendant de l'industrie pour traiter des plaintes des consommateurs, parce que c'est l'argument qui va être soulevé par les consommateurs?
LISTNUM 1 \l 1384 Est‑ce que l'industrie n'a pas, finalement, une sorte de droit de veto sur les résolutions, sur le budget, sur le rapport annuel? C'est un peu ça.
LISTNUM 1 \l 1385 M. BIBIC : Monsieur Morin, en ce qui concerne le traitement des plaintes, il faut souligner que le président ou le commissaire, the Commissioner, opère complètement... d'une façon complètement indépendante des directeurs, of the directors.
LISTNUM 1 \l 1386 Le président ou le commissaire ne doit pas discuter des cas spécifiques avec le conseil d'administration ou aucun de ses membres. Donc, de cette façon là, on a protégé l'indépendance de l'organisme en ce qui concerne le traitement des plaintes spécifiques.
LISTNUM 1 \l 1387 CONSEILLER MORIN : Je vous donne un exemple sur les plaintes, puis on y reviendra tout à l'heure.
LISTNUM 1 \l 1388 Mais vous savez très bien, comme vous l'avez dit il y a quelques minutes, qu'il peut y avoir une évolution dans le mandat, et caetera, et si je comprends bien, c'est par la voie de résolution extraordinaire que vous pourriez éventuellement confier un mandat plus élargi au commissaire des plaintes, et sur ce mandat extraordinaire, avec le système des deux tiers, bien, vous avez quasiment une sorte de droit de veto.
LISTNUM 1 \l 1389 M. BIBIC : Si je peux répondre sur la question de l'expansion du mandat en anglais pour un moment, ça sera un peu plus facile pour moi.
LISTNUM 1 \l 1390 When it comes to the expansion of the mandate and examination of issues beyond the handling of specific complaints, our view is that the TSPs need a say at the board level because if, for example, some kind of substantive code or expansion of mandate is to be developed by this agency in a kind of self‑regulatory kind of way, clearly it is not going to work, fundamentally not going to work unless there is buy‑in from the industry. Otherwise, self‑regulation ‑‑ I mean self‑regulation, it is doomed to fail.
LISTNUM 1 \l 1391 And that is why, again, I would have been quite comfortable actually coming here and proposing that that kind of expansion of mandate should have been subject to unanimity. It is not. It is subject to two out of three of the industry directors.
LISTNUM 1 \l 1392 We are not foreclosing in any manner, shape or form the potential need down the road of development of, for example, a substantive code and we suspect that to the extent that there is a threat of direct CRTC regulation on a given issue, that that will be high motivation indeed for the members to agree to this.
LISTNUM 1 \l 1393 But there is not going to be any confidence in the system is there isn't buy‑in. How else can you develop a code or expand the mandate, whatever the issue might be?
LISTNUM 1 \l 1394 THE CHAIRPERSON: Okay, we will deal with the mandate after the break. Let's take a 10‑minute break.
LISTNUM 1 \l 1395 But before we do that I just would ask you to take a careful look at the subject matters which are for special and extraordinary resolution because as you will hear from the submissions later on, there are quite a few people who take issue with it and it seems to me one must say that you erred on the side of abundance of caution.
LISTNUM 1 \l 1396 There are a few things that can be moved without ‑‑ what I gather is your principal concern is that you have three different groups of TSPs and you want to make sure that all their interests are represented on the key decisions and that is, I think, perfectly legitimate. I just wonder whether you have to go as far as you did.
LISTNUM 1 \l 1397 Anyway, let's take a 10‑minute break and then we will continue. Thank you.
‑‑‑ Recessed at 1116 / Suspension à 1116
‑‑‑ Resumed at 1132 / Reprise à 1132
LISTNUM 1 \l 1398 THE CHAIRPERSON: Let's just go back one second.
LISTNUM 1 \l 1399 There is another provision in there which ‑‑ when we are talking about the adoption or even the consideration of a new code by the CCTS, the provision is that only a TSP can put that forward. There is no provision that either we or the Commission could put it forward or another member of the board.
LISTNUM 1 \l 1400 I can understand you not wanting to be overburdened with a lot of extra work and therefore anything that is put forward obviously is subject to a vote and you have it right now as an extraordinary resolution. But why a member of the board ‑‑ you have four members there, one representing consumer groups; three ‑‑ they are independent people selected by your procedure. They can't even put something forward. Isn't that somewhat harsh?
LISTNUM 1 \l 1401 I mean, you can vote it down but it seems to me if somebody says they really do need a code on whatever or we should expand the present code to cover that, isn't that a legitimate exercise of his or her duties as a member of the board?
LISTNUM 1 \l 1402 MR. McTAGGART: Let me first just make sure we are clear that your understanding ‑‑ and this is drawn from section 86 of the bylaw that only ‑‑ that the development of industry codes of conduct and standards must be initiated by request by the TSP members.
LISTNUM 1 \l 1403 THE CHAIRPERSON: Right.
LISTNUM 1 \l 1404 MR. McTAGGART: And subsequently approved by way of extraordinary resolution.
LISTNUM 1 \l 1405 THE CHAIRPERSON: Thank you for putting it so precisely.
LISTNUM 1 \l 1406 MR. BIBIC: Well, I hesitated because I wasn't sure if we were talking about the codes or the identification of trends, Mr. Chairman.
LISTNUM 1 \l 1407 I think this is one where we probably also will have to come back to you with a collective members' view. I could certainly answer on my own company's behalf but I can't ‑‑ I have to say that I don't know what the membership's views would be on your specific proposition.
LISTNUM 1 \l 1408 THE CHAIRPERSON: There is some issue out there which needs to be addressed and if you four representatives feel very strongly about it, they should be able to share it with their colleagues and get a discussion going. You can also vote it down because if you keep this present provision all they are going to do is they are going to petition us and we are going to ask you to look into it.
LISTNUM 1 \l 1409 So why are we doing this? This is supposed to be an industry self‑regulatory issue. It's something of considerable concern that these folks feel needs to be raised at the board level, I think they have a ‑‑
LISTNUM 1 \l 1410 MR. BIBIC: Certainly, on behalf of Bell Canada, and I suspect the others would likely agree, that at that stage I can't see anything wrong with another director bringing forward an issue and if the ‑‑ without affecting the voting rights of the industry directors on whether or not the agency proceeds with the development of such a code.
LISTNUM 1 \l 1411 I think there is a distinction between the two and the point you make we have heard loud and clear.
LISTNUM 1 \l 1412 THE CHAIRPERSON: Okay.
LISTNUM 1 \l 1413 Then just as a procedural point, we send you a letter to which we attached this chart, which sort of graphically represents the nomination process as we understand it subject to the modification which was in your recent letter that the provisional board of three people, I have no choice but to accept the selection of the three wise men from the head hunter to appointment.
LISTNUM 1 \l 1414 But I gather this represents the way the nomination process works. If so, I would like to introduce it as CRTC Exhibit 1 so that I can use it in future cross‑examination or examination of other witnesses.
EXHIBIT CRTC‑1: Chart representing the nomination process
LISTNUM 1 \l 1415 MR. BIBIC: Yes, Mr. Chairman. You know, there might be some technical niceties in terms of the corporate language involved, but the members are comfortable that the diagram accurately describes the process.
LISTNUM 1 \l 1416 THE CHAIRPERSON: All right.
LISTNUM 1 \l 1417 Okay, then let's go on to mandate.
LISTNUM 1 \l 1418 Michel, I think you have some questions.
LISTNUM 1 \l 1419 CONSEILLER MORIN : Monsieur Bibic, vous avez dit dans votre présentation que vous avez consulté plusieurs intervenants pour avoir une vue d'ensemble, et ces intervenants là, je pense bien que ça devait être principalement les consommateurs.
LISTNUM 1 \l 1420 J'aimerais simplement, pour établir la discussion...
LISTNUM 1 \l 1421 Quel genre de consultation vous avez fait? Est‑ce que c'était une consultation formelle sur des points précis de fonctionnement de mandat avec les consommateurs ou si c'était, comme vous le dites, quelque chose d'ensemble?
LISTNUM 1 \l 1422 M. BIBIC : C'était... on a consulté... au tout début, il y avait les plus grosses entreprises titulaires qui se sont rassemblées pour commencer le développement de cet organisme. Il y avait Bell Canada, Bell Aliant, SaskTel, TELUS, évidemment, et on a développé une structure qu'on a ensuite présentée à plusieurs groupes.
LISTNUM 1 \l 1423 On a rencontré les câblos. Ils ont ensuite... comme vous le savez, il y en a plusieurs d'entre eux qui se sont joints à nous.
LISTNUM 1 \l 1424 On a rencontré d'autres fournisseurs tels que MTS Allstream et Primus et Vonage.
LISTNUM 1 \l 1425 Et on a eu une troisième rencontre avec plusieurs groupes qui représentent les consommateurs. Il y en avait plusieurs.
LISTNUM 1 \l 1426 Et dans ces rencontres là, on leur a dévoilé la structure que, plus ou moins, vous voyez devant vous aujourd'hui. On a ajusté quelques aspects de la proposition en fonction des commentaires qu'on a reçus.
LISTNUM 1 \l 1427 Mais c'était, d'après moi, en tout cas ‑‑ j'étais là ‑‑ des consultations assez détaillées sur des éléments de la structure assez précis. Et voilà!
LISTNUM 1 \l 1428 CONSEILLER MORIN : Est‑ce qu'il y avait, par exemple, un questionnaire précis où des gens devaient cocher pour être bien sûr de l'opinion de chacun ou si c'était une discussion générale?
LISTNUM 1 \l 1429 M. BIBIC : Non, non. C'était une discussion ouverte et générale sur plusieurs aspects de la proposition. Il y avait un agenda, et caetera.
LISTNUM 1 \l 1430 CONSEILLER MORIN : Les consommateurs dans leurs mémoires, certains là, sans les citer, il y en a qui prétendent que les entreprises de télécommunication pourraient, par contrat, limiter éventuellement la portée des sujets abordés par le commissaire des plaintes.
LISTNUM 1 \l 1431 Ce que j'aimerais savoir, est‑ce que... On peut concevoir que les contrats sont différents d'entreprise à entreprise, mais est‑ce que, à partir du moment où les gens font partie du CPRST, est‑ce que, à ce moment là, leur contrat peut être élargi de manière à soustraire des plaintes au Commissaire des plaintes?
LISTNUM 1 \l 1432 Autrement dit, est‑ce que les contrats, à partir d'aujourd'hui, sont gelés dans le sens restrictif du terme?
LISTNUM 1 \l 1433 M. BIBIC : D'après nous, ce serait inapproprié qu'un fournisseur qui s'engage à l'organisme devrait laisser tomber ses droits contractuels.
LISTNUM 1 \l 1434 Malgré ça, les Membres qui se sont joints à l'organisme sont d'accord que durant l'examination du dossier par l'organisme, par le commissaire, qu'il serait acceptable pour que le commissaire suggère une résolution au problème qui dépasse les sections formelles ou les droits formels du contrat en ce qui concerne, par exemple, la limitation monétaire. Mais ça, ça serait aux fins d'essayer de résoudre le problème.
LISTNUM 1 \l 1435 Si la résolution proposée par le commissaire n'est pas acceptable au consommateur ou au fournisseur et le commissaire se doit d'émettre une décision formelle, à ce point là, on est d'avis que le commissaire devrait et doit respecter les termes contractuels auxquels le fournisseur et le consommateur de sont engagés au début.
LISTNUM 1 \l 1436 Les cours le font. Les cours respectent les droits contractuels des deux parties. Le CRTC le fait aussi. Et d'après nous, il serait approprié que le commissaire le fasse aussi.
LISTNUM 1 \l 1437 CONSEILLER MORIN : D'une manière générale, une des craintes... vous avez dit tout à l'heure que vous avez déjà reçu un certain nombre de plaintes.
LISTNUM 1 \l 1438 Est‑ce que vous avez un plan qui consisterait à faire connaître le CCTS auprès de l'ensemble des consommateurs? Est‑ce qu'il y a un plan... et avant que vous me parliez de votre plan, j'aimerais vous poser la question suivante.
LISTNUM 1 \l 1439 Est‑ce que la meilleure façon d'informer le consommateur que votre organisme existe ne serait pas de faire en sorte que ce soit sur la facture du client, que sur la facture du client, on puisse retrouver la possibilité de faire une plainte par courriel, par fax, par le site internet ou d'une façon orale ‑‑ on en reparlera tout à l'heure ‑‑ ?
LISTNUM 1 \l 1440 Mais est‑ce que la façon, finalement, de faire cette publicité ou en tout cas d'annoncer la création d'un commissaire des plaintes, ce ne serait pas que, mois après mois, d'une manière récurrente, que le consommateur, quand il lit sa facture de téléphone, il sait qu'il peut s'adresser à un organisme?
LISTNUM 1 \l 1441 M. BIBIC : Je vais répondre à la question en partie, et ensuite, je vais donner la parole à mademoiselle Crowe de MTS.
LISTNUM 1 \l 1442 Mais en ce qui concerne la facturation, les entreprises titulaires qui ont été déréglementées récemment ont dû indiquer sur la facture, au moment de la déréglementation, que l'organisme était, je crois... que l'organisme existe, et c'était un des éléments requis par le conseil en ce qui concerne le plan de communication autour de la question de déréglementation. Donc, ça été fait à un certain niveau déjà.
LISTNUM 1 \l 1443 Il faut aussi apprécier que c'est très... de notre point de vue, c'est très, très dispendieux d'inclure des messages de cette sorte sur les factures, beaucoup plus dispendieux, je crois, que les gens imaginent, et aussi, on utilise ces espaces là pour d'autres messages promotionnels. Donc, si c'était une question de le faire mois après mois, ça serait une question très difficile pour nous d'implémenter.
LISTNUM 1 \l 1444 Mais en ce qui concerne le plan en général... Oui.
LISTNUM 1 \l 1445 CONSEILLER MORIN : Mais, dans le fond, est‑ce que ce ne serait pas moins dispendieux de l'incorporer carrément à la facture et que ce soit de façon récurrente, donc, ce ne soit pas à modifier de mois en mois?
LISTNUM 1 \l 1446 Plutôt que d'ajouter un feuillet de temps à autre, si c'était incorporé à la facture, est‑ce qu'on n'aurait pas là une façon directe, parce qu'un mois, un consommateur peut se plaindre, mais après, pendant 12 mois, il n'a aucune plainte contre sa compagnie, mais vient le 13e mois, et là, oops, c'était où?
LISTNUM 1 \l 1447 Alors, voyez‑vous, c'est cette difficulté que...
LISTNUM 1 \l 1448 M. BIBIC : Oui.
LISTNUM 1 \l 1449 CONSEILLER MORIN : ...je mets en...
LISTNUM 1 \l 1450 M. BIBIC : Monsieur Morin, il y a beaucoup de... d'après moi, il y aurait plusieurs autres façons de le faire qui seraient aussi efficaces, sinon plus efficaces.
LISTNUM 1 \l 1451 Les consommateurs recherchent la simplicité en ce qui concerne la facturation. Il y a beaucoup de consommateurs, et de plus en plus à chaque mois, qui optent pour la facturation électronique.
LISTNUM 1 \l 1452 Inclure ces messages là sur les factures qui sont émises en papier, c'est très, très, très dispendieux, et, d'après moi, il y aurait d'autres façons de s'assurer que les consommateurs sont au courant de leurs options en ce qui concerne la résolution de leur plainte, et je préférerais qu'on examine ces autres options là que d'exiger que sur chaque facture, à chaque mois, on prenne plus de place encore.
LISTNUM 1 \l 1453 Les factures sont déjà détaillées et je crois, pour la simplicité, il faudrait trouver d'autres façons qui seraient plus efficaces.
LISTNUM 1 \l 1454 CONSEILLER MORIN : Est‑ce qu'on pourrait peut‑être éventuellement avoir des suggestions plus précises, éventuellement peut‑être, parce que sur le site internet, il pourrait y avoir ce même message aussi?
LISTNUM 1 \l 1455 Évidemment, dans la mesure où les gens paient par voie électronique, on comprend qu'ils ne regardent pas nécessairement la facture, mais sur le site internet, ils pourraient le faire.
LISTNUM 1 \l 1456 M. BIBIC : Ah! Absolument, ils pourraient le faire.
LISTNUM 1 \l 1457 MS CROWE: I think I will jump in here. Pardon me for speaking in English but the other issue with putting the CCTS contact information or any procedural information on a customer's invoice is we don't want the CCTS getting every customer question about the bill itself and that is a risk if the CCTS information is on every customer invoice. There is the risk that that is the first person the customer will call with every question they have. That wouldn't be an appropriate use of the CCTS' resources and as a service provider we want the first crack at making it right for the customer. It is very much in our interest to get things right.
LISTNUM 1 \l 1458 That being said, a lot has already ‑‑ well, there's a lot of people who have already noticed the existence of the CCTS. As you already heard, there have been over 1,000 customers who have contacted the CCTS when there hasn't been a very big communications effort made. So I think that is a good sign.
LISTNUM 1 \l 1459 In the future, once we know exactly what the CCTS is going to look like, further communications ‑‑ Mirko has talked about some of them ‑‑ are indeed websites. Most people do turn to the internet now to figure out how to deal with any issue they have.
LISTNUM 1 \l 1460 The CRTC itself already has a linkup to the CCTS and that is useful. Members certainly should do the same. There could be a line in our directories.
LISTNUM 1 \l 1461 The permanent CCTS Commissioner, I am sure, will also be talking to the media as the bigger launch is done and have a plan of his or her own as well.
LISTNUM 1 \l 1462 CONSEILLER MORIN : Évidemment, on peut dire ça, mais en Australie, par exemple, le commissaire des plaintes, l'Ombudsman là‑bas, se plaint qu'on ne fait pas assez sa promotion, enfin, qu'il n'arrive pas nécessairement à rejoindre tous les consommateurs qui veulent se plaindre. Alors, c'est pour ça que je faisais allusion à une formule toute simple.
LISTNUM 1 \l 1463 Maintenant, en ce qui concerne votre site internet, justement, je suis allé sur votre site internet, Commissaire aux plaintes relatives aux services de télécommunications, et je vois, parmi les services en dehors de la portée de l'Ombudsman, que les personnes handicapées, ce ne serait pas votre affaire. Évidemment, vous avez fait des remarques ce matin.
LISTNUM 1 \l 1464 J'aimerais m'assurer auprès de vous, en ce qui concerne les aveugles, les sourds, quelle est votre position exactement?
LISTNUM 1 \l 1465 Actuellement, je comprends qu'on peut adresser une plainte via un fax, via votre site internet ‑‑ c'est très bien fait, d'ailleurs. Au niveau de votre site internet, on peut remplir, et c'est tout simple ‑‑ et par écrit. Bon!
LISTNUM 1 \l 1466 Mais aujourd'hui, pour un groupe qui représente l'industrie des télécommunications, le courriel, c'est très efficace. J'ai Sympatico à la ville et à la campagne, et ça fonctionne très bien.
LISTNUM 1 \l 1467 Est‑ce que le courriel ne pourrait pas faire partie des façons de communiquer? Est‑ce que le téléphone ne pourrait pas faire partie des façons de communiquer? Est‑ce que le TTY aussi, les aveugles, et finalement, le contact oral, simplement de parler?
LISTNUM 1 \l 1468 Alors, au lieu de trois, comme vous le suggérez, est‑ce qu'on ne pourrait pas en avoir sept?
LISTNUM 1 \l 1469 M. BIBIC : Je cède la parole à monsieur Abbott.
LISTNUM 1 \l 1470 MR. ABBOTT: Good morning, Mr. Commissioner.
LISTNUM 1 \l 1471 The choice of ‑‑ I'm responding in English, obviously. The choice of having complaints submitted primarily in writing is a matter of efficiency, it allows the complainant to turn their mind to the complaint and to present all the facts and arguments that they believe are relevant and a web form has been provided online to assist the complainant to be able to provide their complaint.
LISTNUM 1 \l 1472 Now, your question as I understand it was, what about those who may not have access to the Internet or may not be able to submit a complaint in writing, and that is an excellent question.
LISTNUM 1 \l 1473 As the Commissioner, the Interim Commissioner has indicated the accessibility of the complaints handling process is extremely important both to the Commissioner and to the members.
LISTNUM 1 \l 1474 And I think it was quite a legitimate observation made by Arch and other parties that writing may exclude individuals, either because they're illiterate or they may have some disability that impedes that and, in that respect, the members have requested that the Interim ‑‑ well, the members plan to amend the procedures to give the Interim Commissioner, the Commissioner the discretion to accept complaints in non‑written form in the appropriate situation.
LISTNUM 1 \l 1475 But I think by and large the basic mode of taking complaints should be in writing and that will allow the process to be as efficient as possible.
LISTNUM 1 \l 1476 I would note that the website is W3C‑compliant. So if, for example, a blind user has say a JAWS Browser that allows the blind to interact with Internet content, they can indeed hear what the content is and may also have the facility to fill out the form.
LISTNUM 1 \l 1477 Similarly, we do have TTY capability at the ‑‑ or the CCTS has TTY capability and in the appropriate circumstances can take, as I mentioned, complaints in other than written form. That's certainly a change we plan to make very soon.
LISTNUM 1 \l 1478 CONSEILLER MORIN : Est‑ce que vous pourriez préciser exactement qu'est‑ce qu'il en est pour les personnes handicapées, les gens atteints de surdité, et les aveugles?
LISTNUM 1 \l 1479 Qu'est‑ce qui arrive? Et pour les gens aussi... par exemple, je pense aux immigrants. Bien, les immigrants, ils ne peuvent pas nécessairement écrire toujours correctement ou exprimer leur plainte à l'égard de leur fournisseur de services en télécommunications. Donc, la présentation orale, à ce moment là, peut être intéressante.
LISTNUM 1 \l 1480 THE CHAIRPERSON: Can I just add to this. It is somewhat strange, we are talking about telephone and I can't make a complaint by telephone.
LISTNUM 1 \l 1481 If I have a problem with Bell, I pick up the phone, sooner or later I get ‑‑ after waiting half an hour I finally get some live voice and I can complain with them and can deal with it orally. That is what Commissioner Morin is saying.
LISTNUM 1 \l 1482 You are saying no, unless you are handicapped we need it in writing. Frankly, I don't quite follow the logic here.
LISTNUM 1 \l 1483 MR. BIBIC: When you said 30 minutes you meant TELUS, I believe.
‑‑‑ Laughter / Rires
LISTNUM 1 \l 1484 THE CHAIRPERSON: Whoever. I wasn't trying to blame anything on Bell.
LISTNUM 1 \l 1485 MR. ABBOTT: Thank you, Mr. Chairman.
LISTNUM 1 \l 1486 With respect to the original question about what arrangements are currently in place for people with disabilities and what may be planned, I think that's most appropriately responded to by the Interim Commissioner as the CCTS is his organization to run as he sees appropriate.
LISTNUM 1 \l 1487 Well, with respect to complaints primarily being in writing, I think that it's certainly not an unusual way amongst other complaints handling bodies to take complaints. It's quite reasonable to have individuals focus their minds and put forward the facts and the arguments that they feel are relevant. I don't see it as a ‑‑ personally don't see it as a significant bar to submitting a complaint.
LISTNUM 1 \l 1488 And let's remember that the average ‑‑ any consumer can deal with the CCTS in a number of fashions if they have an inquiry or they need assistance in submitting their complaint. It's only the complaint itself that needs to be in writing. They can consult, make inquiries, do whatever they want orally.
LISTNUM 1 \l 1489 But at this point with respect to arrangements for access by the particular individuals referenced by Commissioner Morin, I'll turn it over to Commissioner McKendry.
LISTNUM 1 \l 1490 THE CHAIRPERSON: You haven't answered my question. You realize that, of course.
LISTNUM 1 \l 1491 I mean, if I have a problem with the telephone company, whichever one it be, I won't single out a single one, I can deal with it on the telephone.
LISTNUM 1 \l 1492 If I deal with the Commissioner of Complaints on telephones, I have to do it in writing.
Yes, you have got to explain to me why.
LISTNUM 1 \l 1493 MR. GRIEVE: Well, Mr. Chairman ‑‑
LISTNUM 1 \l 1494 THE CHAIRPERSON: You are talking about costs, is that the issue? I mean, if so, say so.
LISTNUM 1 \l 1495 MR. GRIEVE: No, no, I don't think it's an issue of costs, it's just a practicality that when we have a series of processes, if there's no written record of the complaint, then how do you go to the next stage and the next stage?
LISTNUM 1 \l 1496 It's not like dealing with a service rep on the phone who's going to try to fix the problem for you right there. There has to be a record of the complaint so that it can go through all the processes.
LISTNUM 1 \l 1497 If there's a way to ‑‑ you know, what we'd have to do is, if you want to take the ‑‑ give the option to everyone to give the complaints orally, then you have to write it down, you have to make sure it's right, maybe send it to them, make sure they agree or read it back to them or something like that.
LISTNUM 1 \l 1498 I think it's a practical matter of having a record of the dispute for the purposes of going through the process.
LISTNUM 1 \l 1499 MR. BIBIC: So, in cases where an able bodied complainant with access to all these mechanisms, in those cases ‑‑ it does relate to costs as well though in terms of if a person is able bodied has access, the most efficient way of making sure there's a record and of transmitting the complaint to the TSP is to do it this way.
LISTNUM 1 \l 1500 Now, recognizing, of course, that there is some constituency that may be illiterate or disabled, in which case it's an absolutely fair point that there needs to be accommodation there at some level. And at that level perhaps we can turn it over to Mr. McKendry.
LISTNUM 1 \l 1501 THE CHAIRPERSON: Mr. McKendry.
LISTNUM 1 \l 1502 INTERIM CCTS COMMISSIONER McKENDRY: Thank you. Well, we will do whatever it takes to help people make complaints.
LISTNUM 1 \l 1503 As Mr. Grieve pointed out, it's important where possible there be a written record because when a complaint comes up to me for investigation because it couldn't be resolved between the consumer and the company and the staff have not been able to facilitate that process, it's important to me to have a clear written statement from the person that's complaining about what the nature of their complaint is and what the issues are from their perspective.
LISTNUM 1 \l 1504 That being said, I do call the complainant in that situation and discuss their complaint with them to make sure that I have ‑‑ that they feel that they've captured all of their complaint and what's gone in writing.
LISTNUM 1 \l 1505 But if somebody for some reason has difficulty to put their complaint in writing, they have a literacy issue or some other issue, some other disability, we will do whatever it takes to help them get it into writing, we'll do it for them if we have to; or, if there needs to be a translator, for example, because French or English aren't their first language and they feel more comfortable in another language, we'll get a translator for them too.
LISTNUM 1 \l 1506 So, the bottom line here is whatever needs to be done we'll make sure it's done but, where possible, we want a written record because it really facilitates my job when I have to investigate and adjudicate.
LISTNUM 1 \l 1507 CONSEILLER MORIN : Alors, si j'ai bien compris, Monsieur Grieve, the cost is no issue as far as the complaints are concerned?
LISTNUM 1 \l 1508 MR. GRIEVE: I'm not sure...
LISTNUM 1 \l 1509 CONSEILLER MORIN: You have said that it is not an issue as far as the costs are concerned for the deaf and blind people.
LISTNUM 1 \l 1510 MR. GRIEVE: I mean, there will always be cost issues but we're not going to deny access because of a cost issue, we'll do these ‑‑ make sure there's access and do it in the most efficient way we can.
LISTNUM 1 \l 1511 My reference before was when the Chair was asking about whether the requirement for a written record was a cost issue, I said no, it's more an issue of record keeping than a cost issue.
LISTNUM 1 \l 1512 THE CHAIRPERSON: But can I sum this up. If I understand what I have heard it is slightly different than what the documentation says. What Mr. McKendry says, he prefers to have the complaint written by mail or by fax, by ear, by Internet but, if necessary, that's a preference, it's not a requirement, he will take complaints orally and deal with them especially where the person is either handicapped or has a language difficulty.
LISTNUM 1 \l 1513 Is that a correct summary, Mr. McKendry?
LISTNUM 1 \l 1514 INTERIM CCTS COMMISSIONER McKENDRY: That's a correct summary and we will help them put it into writing and ensure it's correct.
LISTNUM 1 \l 1515 And I want to emphasize that in all cases I call the complainant when I make an investigation to ensure that the written record reflects their true concerns.
LISTNUM 1 \l 1516 THE CHAIRPERSON: And you have sufficient operators who take telephone calls?
LISTNUM 1 \l 1517 INTERIM CCTS COMMISSIONER McKENDRY: We do at this stage. We have expanded since we started. We started with one. Now, we have two and we are in the process of trying to decide when we should move up to three.
LISTNUM 1 \l 1518 THE CHAIRPERSON: Okay.
LISTNUM 1 \l 1519 CONSEILLER MORIN : On parle de réduction de coûts, puis je pense que vous êtes dans votre droit de surveiller de très près les coûts.
LISTNUM 1 \l 1520 Est‑ce que les plaintes collectives... parce qu'on parle, par exemple, d'un condominium où il y aurait un problème de service au niveau d'une entreprise de télécommunications.
LISTNUM 1 \l 1521 Est‑ce que vous êtes prêt à accepter des plaintes collectives, ce qui pourrait réduire les coûts, au lieu de 200 appels, 200 plaintes, vous n'en auriez qu'une? Est‑ce que ça fait partie, parce que je n'ai rien vu nulle part, mais peut‑être ça fait partie de vos propositions, dans le fond?
LISTNUM 1 \l 1522 MR. ABBOTT: Commissioner Morin, if I can respond to that question.
LISTNUM 1 \l 1523 I believe what you are describing is akin to a class action and the rules of procedure specifically address that, the concept of a class action or one complaint being brought on the part of multiple individuals.
LISTNUM 1 \l 1524 The challenge with that is that class actions have a high level of ‑‑ there are a number of procedures to ensure that in fact the claims are all the same, that the parties have similar interests, that they arise from similar facts.
LISTNUM 1 \l 1525 The procedural safeguards required to properly conduct a class action or representative type of action are significant and don't really fit within the more informal consumer‑friendly Procedural Code that has been developed for the CCTS.
LISTNUM 1 \l 1526 CONSEILLER MORIN : Mais je n'en suis pas au recours collectif. Le mot " recours collectif ", c'est vous qui l'utilisez.
LISTNUM 1 \l 1527 Je parle d'une plainte dans un édifice de 200 appartements qui ont exactement le même problème, et au lieu d'envoyer 200 plaintes, d'encombrer le commissaire, on en envoie qu'une qui traite du problème qu'a rencontré l'ensemble des propriétaires du condominium relativement à la compagnie. Je ne parle pas de recours, je parle d'une plainte.
LISTNUM 1 \l 1528 M. BIBIC: Si c'était une plainte qui aurait... une plainte qui pourrait devenir ou serait en nature d'un recours collectif, la réponse, vous l'avez.
LISTNUM 1 \l 1529 Si c'est une question des mêmes... des faits assez spécifiques qui s'appliquent à plusieurs abonnés, j'imagine que ça serait possible, dans certains cas, pour le commissaire d'examiner la plainte. Mais une fois qu'il y aurait question que cette plainte là pourrait devenir une question à un recours collectif, ça serait complètement inapproprié.
LISTNUM 1 \l 1530 CONSEILLER MORIN : Le CRTC dispose d'une procédure accélérée pour traiter les plaintes lorsqu'il y a des questions urgentes comme le débranchement, par exemple.
LISTNUM 1 \l 1531 Est‑ce que vous avez prévu une procédure accélérée dans votre projet pour répondre aux plaintes des consommateurs?
LISTNUM 1 \l 1532 M. BIBIC : Dans ces cas‑là, il ne faut pas oublier non plus que le premier point de contact pour le consommateur ou l'abonné serait, sans doute, le fournisseur directement, et on espère que, dans la grande majorité des cas, le problème serait corrigé de cette façon.
LISTNUM 1 \l 1533 Mais une fois que la plainte se doit d'être élevée au niveau de l'organisme, on est d'avis qu'on a établi des procédures qui seront efficaces et quand même assez rapides.
LISTNUM 1 \l 1534 Dans certains cas...
LISTNUM 1 \l 1535 Peut‑être je pourrais céder la parole à monsieur McKendry pour expliquer ce qu'il ferait dans ces cas là.
LISTNUM 1 \l 1536 INTERIM CCTS COMMISSIONER McKENDRY: Well certainly, if there was a degree of emergency about the situation we would try and deal with it more quickly than we would otherwise.
LISTNUM 1 \l 1537 We do not have an explicit procedure in place but remember, when you contact us, you reach a real person and if that real person is seized of the fact that this is an emergency or an extremely critical situation, they would bring it to Mr. Paul's attention and to my attention and certainly we are perfectly capable of dealing with it on an urgent basis.
LISTNUM 1 \l 1538 It doesn't have to go into a queue and wait till we have done the other things that are ahead of it if there is some reason we should deal with it right away.
LISTNUM 1 \l 1539 COMMISSIONER KATZ: Mr. McKendry, on that issue, the likelihood is that people who are about to be disconnected would likely use the last recourse they have, which would be the CCTS, to call up and say the phone company or the provider is about to cut me off of whatever service. Let's assume they are literate and have got all the skills and capabilities to explain themselves.
LISTNUM 1 \l 1540 Would the response back be please put it in writing and we will take a look at it when it comes in the mail or would you have an expedited process to look at it, take it over the phone and deal with it on a timely basis?
LISTNUM 1 \l 1541 INTERIM CCTS COMMISSIONER McKENDRY: If we were seized of the fact that it is an emergency and an urgent situation, we would ask that it be put in writing but we would immediately contact the company to see what the situation was and what could be done about it.
LISTNUM 1 \l 1542 MR. BIBIC: Commissioners, we certainly understand the nature of the questions and they are good questions and they are positing situations that are worst‑case scenarios but we are certainly all entering this thing with the best of intentions to resolve problems.
LISTNUM 1 \l 1543 Obviously, we think it is critical for an organization like this to have firm procedures so that everybody knows what the rules of engagement are going to be, recognizing that this thing has to be flexible enough to address concerns as they arise because we can't predict every single eventuality as we sit here today.
LISTNUM 1 \l 1544 CONSEILLER MORIN : Mais ce que je veux dire actuellement, c'est que vous n'avez pas, comme telle, prévu une procédure accélérée, pour le moment? Ça fait du sens peut‑être d'en avoir une, mais pour le moment, il n'y a rien d'arrêter à ce niveau là, c'est ce que vous nous dites?
LISTNUM 1 \l 1545 M. BIBIC : On n'a pas de procédure formelle de cette façon, vous avez raison, et la plupart des plaintes peuvent être examinées ou analysées selon les procédures qui ont été établies jusqu'à date.
LISTNUM 1 \l 1546 CONSEILLER MORIN : En ce qui concerne le commissaire des plaintes, est‑ce que le commissaire aura le droit d'enquêter, de faire des recommandations à l'égard d'enjeux systémiques, disons, de contrats douteux, de pratiques de prix?
LISTNUM 1 \l 1547 Jusqu'à quel point il aura la liberté de faire ça? Pour autant que le modèle que vous proposez serait accepté là, avec le deux tiers, est‑ce que le commissaire pourra faire exécuter, parce que c'est un peu le mandat aussi du commissaire des plaintes que de voir un peu en avant qu'est‑ce qui se dessine selon l'information qu'il a ou qu'il n'a pas?
LISTNUM 1 \l 1548 MR. BIBIC: Mr. Morin, I think this would be a similar issue to the discussion we had a little bit earlier before the break about the expansion of the mandate.
LISTNUM 1 \l 1549 In terms of trends, the way we have designed the CCTS now, the TSP would ask the CCTS to initiate an examination or identify a trend, and again, it is for the same fundamental reason that it will be a fruitless identification or a fruitless examination if the industry doesn't buy into the issue. So that would be kind of an answer at one level.
LISTNUM 1 \l 1550 The second part of my answer would be that when it comes to the identification of trends, the primary concern we would have is that the trends relate to industry trends and not trends within one particular provider and the trends would have to be with respect to questions that are within the mandate of the CCTS, within its scope and not things that are outside its scope, for example, broadcasting trends. For example, broadcasting is not within the CCTS' scope.
LISTNUM 1 \l 1551 CONSEILLER MORIN : Mais je voudrais vous soumettre, simplement, deux faits.
LISTNUM 1 \l 1552 Je pense que vous avez commandé un sondage, et ce sondage, auprès de l'ensemble du public canadien, révèle que 90 pour cent des Canadiens voudraient que le commissaire des plaintes, l'ombudsman des consommateurs, puisse se livrer à de telles initiatives.
LISTNUM 1 \l 1553 Le deuxième point, c'est que c'est la volonté du gouvernement de mettre en place une agence, ce commissaire indépendant de l'industrie, qui n'aurait pas à demander trop de permissions, si vous me permettez, entre parenthèses, à l'industrie pour initier ou, enfin, développer son mandat.
LISTNUM 1 \l 1554 C'est deux faits que je soumets à votre attention. Je ne sais pas si vous avez des commentaires là‑dessus.
LISTNUM 1 \l 1555 M. BIBIC : En ce qui concerne le sondage, je crois que vous faites référence à un sondage qui a été fait en 2005 pour TELUS, Bell Canada et PIAC.
LISTNUM 1 \l 1556 CONSEILLER MORIN : Mm‑hmm.
LISTNUM 1 \l 1557 M. BIBIC : Il faudrait que j'examine le sondage. Je ne l'ai pas devant moi, et je ne me souviens pas de toutes les particularités ou les détails du sondage.
LISTNUM 1 \l 1558 En ce qui concerne le mandat, en général, de l'organisme, on ne croit pas, on n'est pas d'accord que le gouvernement avait l'intention de créer un autre organisme réglementaire pour remplacer... ou pas remplacer, en plus du CRTC.
LISTNUM 1 \l 1559 On croit que le gouvernement exige qu'il y ait une façon efficace de répondre aux plaintes des consommateurs, et on croit fermement que cet objectif là a été accompli avec la création du CCTS.
LISTNUM 1 \l 1560 CONSEILLER MORIN : J'aimerais avoir quelques précisions sur votre rapport annuel, ce qu'il contiendra.
LISTNUM 1 \l 1561 Peut‑être votre réflexion n'est pas à ce niveau‑là jusqu'ici, mais je suis allé sur le site australien, et on donne pas mal d'information, suivant les compagnies, suivant le niveau de résolution du problème. Soit qu'on est à l'étape un, où il y a une plainte qui est adressée au commissaire, qui la retourne à la compagnie. Ça, c'est le niveau un.
LISTNUM 1 \l 1562 On constate aussi que la plupart, la grande majorité des plaintes sont résolues au niveau un, mais il y en a quand même quatre, et on peut voir que certaines compagnies prennent plus de temps que d'autres relativement à résoudre le problème.
LISTNUM 1 \l 1563 J'aimerais savoir si, à votre avis, on devrait avoir, dans le rapport annuel ou sur le site internet, ce genre d'information où on aurait tout le détail des différentes entreprises de télécommunications au Canada, avec le nombre de plaintes qui sont faites chaque année pour chacune des compagnies, et l'étape de résolution, autrement dit, est‑ce qu'elles sont résolues très rapidement ou si ça prend du temps?
LISTNUM 1 \l 1564 Est‑ce que ce genre d'information là, vous verriez ça d'un bon oeil dans le rapport annuel du commissaire des plaintes?
LISTNUM 1 \l 1565 M. BIBIC : Je vais demander à monsieur McKendry de répondre parce qu'aucun des membres a l'intention d'avoir une influence indue ou de rédiger ou de contrôler ce qui va être dans le rapport annuel. Donc, je vais demander à monsieur McKendry de répondre.
LISTNUM 1 \l 1566 INTERIM CCTS COMMISSIONER McKENDRY: Thank you.
LISTNUM 1 \l 1567 If I understand the question correctly, certainly, statistical analysis of complaints is something that I would anticipate the permanent commissioner would want to include in the annual report and the statistical analysis would be around the types of complaints, the numbers of complaints, subject matters of the complaints and so on.
LISTNUM 1 \l 1568 In terms of performance standards in dealing with complaints, we have set out time limits for companies to respond and deal with complaints and so on. I expect that we would report on that as well. We track that information.
LISTNUM 1 \l 1569 I am not sure whether that completely answers your question or not.
LISTNUM 1 \l 1570 CONSEILLER MORIN : Ce que je veux dire, c'est que les tableaux... Vous avez, sans doute, consulté le site du TIO australien.
LISTNUM 1 \l 1571 Est‑ce que ce genre de tableau, avec les quatre étapes et chacune des compagnies, suivant le nombre de plaintes qui ont été faites pour chacune des entreprises, est‑ce que vous seriez confortable...
LISTNUM 1 \l 1572 Dans l'intérêt du consommateur... moi, je suis l'abonné d'une compagnie Clear Networks, par exemple, en Australie. Bien, il y a eu 70 plaintes. Il y en a eu 50 qui ont été résolues au premier niveau, 13 au deuxième niveau, puis finalement, à la fin, toutes les plaintes ont été résolues au niveau quatre. Cette compagnie là, semble‑t‑il, s'organise pour que les plaintes soient traitées effectivement, puis qu'on s'entende.
LISTNUM 1 \l 1573 Si les Canadiens avaient ce genre de tableau qui apparaît sur le site du TIO australien, bien, on aurait tout de suite une image de Bell, de TELUS, jusqu'à quel point ça vaut la peine de s'adresser au commissaire des plaintes et jusqu'à quel point l'entreprise s'efforce de résoudre le problème qu'elle a avec un certain nombre de plaintes.
LISTNUM 1 \l 1574 Je pense que c'est assez indicatif, finalement, pour le consommateur quand il a à choisir une compagnie ou une autre. Il sait que s'il a une plainte, bien, s'il fait partie de la moyenne, ça va se résoudre assez facilement son problème.
LISTNUM 1 \l 1575 Est‑ce que, donc, ce genre d'information là, ce serait quelque chose qui vous rendrait confortable?
LISTNUM 1 \l 1576 MR. McTAGGART: Commissioner Morin, if I could, I am happy to be able to tell you that what you are referring to is very much in line with what the Members view the annual report looking like and in fact on this particular point the Governor in council has given very specific direction and we have implemented that direction in the documentation.
LISTNUM 1 \l 1577 The order in council requires the organization to publish an annual report on the nature, number and resolution of complaints received for each telecommunication service provider, the implication being TSPs that are Members of the organization, and I think what you have described, a list of Members, the nature of the complaints, the level at which they have been resolved, we do contemplate a somewhat similar four‑level process.
LISTNUM 1 \l 1578 So I think the Members are comfortable with an annual report that would look very much like you have described, without having the document in front of me.
LISTNUM 1 \l 1579 INTERIM CCTS COMMISSIONER McKENDRY: And, Commissioner, we are tracking the information since we have started that would enable us to do that.
LISTNUM 1 \l 1580 CONSEILLER MORIN : Donc, est‑ce que... aussi, je regardais sur le site australien. Je vous donne ça parce qu'on le voit. Ils ont, par exemple, des descriptions de cas avec des entreprises.
LISTNUM 1 \l 1581 Est‑ce que ce genre de choses là aussi pourrait faire partie du rapport annuel?
LISTNUM 1 \l 1582 MR. McTAGGART: On that point I can answer that, as I described earlier, the intention is that final decisions of the commissioner are made public. For instance, they would be posted on the website and therefore become public information, identifying the TSP but never the complainant for privacy reasons.
LISTNUM 1 \l 1583 I think it would be open to the commissioner to look upon the body of decisions made in the previous year and highlight them in the annual report.
LISTNUM 1 \l 1584 THE CHAIRPERSON: I presume nothing prevents him from generalizing, saying we have received this type of complaint, from where it is coming and this is how we resolved it, respecting people's privacy and their identity.
LISTNUM 1 \l 1585 But I presume, Mr. McKendry, you will give sort of a generic description of what you have done and how you have resolved it?
LISTNUM 1 \l 1586 INTERIM CCTS COMMISSIONER McKENDRY: Yes, and I think it could be useful to have some examples of complaints we have dealt with, assuming they are not at the binding decision stage, without mentioning the company or the individual involved because I think they can be helpful to readers of the annual report to understand how we operate and some of the issues that we are facing.
LISTNUM 1 \l 1587 CONSEILLER MORIN : Je peux comprendre, donc, en fait, que vous êtes pour la transparence et qu'on pourra s'attendre éventuellement à un rapport annuel où toutes ces choses là seront évoquées dans beaucoup de détail.
LISTNUM 1 \l 1588 Un point que j'aimerais souligner, mais je ne sais pas si vous avez un point de vue là‑dessus, si une entreprise systématiquement ‑‑ je présume que ce serait la minorité chez vous ‑‑ ne collabore pas avec le commissaire aux plaintes, comment vous entendez traiter de la question, rendre compte de la question dans le rapport annuel?
LISTNUM 1 \l 1589 Déjà, si vous publiez ces chiffres, on aura déjà une certaine idée de la réticence de certaines entreprises à traiter des plaintes, mais si... parce que c'est un modèle volontaire pour l'instant. Si une entreprise ne collabore pas avec le commissaire aux plaintes, qu'est‑ce qui se passe?
LISTNUM 1 \l 1590 Comment verriez‑vous le commissaire des plaintes rendre compte de cette situation, parce que, au final, c'est le consommateur qui pourrait en payer la facture?
LISTNUM 1 \l 1591 MR. McTAGGART: Commissioner Morin, that is something that the Members have made specific provision for in the documents.
LISTNUM 1 \l 1592 First, as a general matter, by agreeing to join the CCTS, the TSP Members commit to abide by the decisions of the commissioner, in fact, without a right of appeal. It is a very solemn promise.
LISTNUM 1 \l 1593 If a Member is consistently uncooperative with the CCTS investigators, for example, at the investigation stage, that information would make its way to the board and there is provision for specific disciplining of TSP Members.
LISTNUM 1 \l 1594 If a Member refuses to abide by a decision rendered by the commissioner, that, as a corporate matter, constitutes an event of default and puts that TSP Member at risk of expulsion from the corporation.
LISTNUM 1 \l 1595 But looking at the issue from the consumer's perspective, I can tell you that, again, we made specific provision in the documentation that if the commissioner makes an award against a TSP Member but the TSP Member refuses to abide by it, the other TSP Members or the corporation itself can in fact give the consumer the requested remedy if that is possible and then pursue the matter against the Member itself.
LISTNUM 1 \l 1596 So we have tried to provide a remedy for the consumer as much as we can in that unlikely event.
LISTNUM 1 \l 1597 M. BIBIC : Aussi, Monsieur Morin...
LISTNUM 1 \l 1598 CONSEILLER MORIN : Dans les services qui sont sous la portée du... excusez.
LISTNUM 1 \l 1599 M. BIBIC : Je veux juste ajouter un petit point, Monsieur Morin.
LISTNUM 1 \l 1600 C'est que le fournisseur doit absorber les coûts des enquêtes du CCTS, et les coûts deviennent... les coûts sont élevés. Ça devient plus dispendieux à chaque niveau de l'enquête.
LISTNUM 1 \l 1601 Donc, si un fournisseur ne collabore pas, et, à chaque fois, la plainte doit se rendre au dernier niveau, qui est une décision formelle du commissaire, les coûts du fournisseur vont être plus élevés en comparaison avec les coûts de ses collègues au sein de l'organisation.
LISTNUM 1 \l 1602 CONSEILLER MORIN : Toujours sur le site internet, on voit qu'il y a des services qui sont en dehors de la portée du commissaire pour ce qui concerne les plaintes.
LISTNUM 1 \l 1603 Là, je vois, par exemple ‑‑ j'ai du mal à comprendre ‑‑ le prix, ce ne serait pas l'objet d'une plainte. Alors, on a le prix. On a les plaintes... les services d'urgence, ça ne ferait pas partie des sujets possibles de plaintes. Il y a aussi le télémarketing ou messages non sollicités. On en a parlé un peu plus tôt ce matin.
LISTNUM 1 \l 1604 Mais est‑ce que ces choses là sont révisibles? Est‑ce que le prix pourra être l'objet d'une plainte?
LISTNUM 1 \l 1605 M. BIBIC : Bien, en ce qui concerne le prix, les prix doivent être établis...
LISTNUM 1 \l 1606 CONSEILLER MORIN : Par contrat.
LISTNUM 1 \l 1607 M. BIBIC : ...par le marché.
LISTNUM 1 \l 1608 CONSEILLER MORIN : O.K.
LISTNUM 1 \l 1609 M. BIBIC : C'est le marché qui détermine les prix. Ça ne serait pas approprié pour un consommateur de se présenter auprès du CCTS et dire que : Je veux payer $15 pour mon service internet et non $20. Pourriez‑vous nous donner votre avis, Monsieur le Commissaire?
LISTNUM 1 \l 1610 Par contre, si le consommateur se présente auprès du commissaire et indique que : On m'a promis de me facturer $15, et, en effet, on m'a facturé $20, et ce n'est pas l'engagement dès le début, bien là, le commissaire pourrait, bien évidemment, résoudre le problème en indiquant que la preuve est que vous lui avez promis $15 et non $20, il faut faire un remboursement.
LISTNUM 1 \l 1611 Donc, le prix tel quel n'est pas dans le mandat du CCTS, mais la facturation l'est.
LISTNUM 1 \l 1612 En ce qui concerne les services d'urgence et le télémarketing, je demanderais à monsieur Abbott de répondre à votre question.
LISTNUM 1 \l 1613 MR. ABBOTT: Before I answer that question, perhaps if I could give a bit of an overview that might help you ‑‑
LISTNUM 1 \l 1614 THE CHAIRPERSON: Could we try to be a bit more precise in our answers? We are really running out of time.
LISTNUM 1 \l 1615 MR. ABBOTT: Certainly.
LISTNUM 1 \l 1616 THE CHAIRPERSON: So just answer the question, please.
LISTNUM 1 \l 1617 MR. ABBOTT: All right, I will answer the specific question.
LISTNUM 1 \l 1618 Emergency services like 9‑1‑1 are directly regulated by the CRTC and we have focussed on forborne telecommunication services. Complaints relating to them will be handled by the CCTS.
LISTNUM 1 \l 1619 CONSEILLER MORIN : Il y en a un autre que je n'ai pas évoqué, mais pratiques générales d'opération non couvertes dans les contrats ou les engagements avec le client. C'est une porte ouverte. Je ne le sais pas, ça m'apparaît...
LISTNUM 1 \l 1620 Est‑ce que ça, ça ne pourrait pas être l'objet de plaintes, les pratiques générales d'opération? Puis là, vous indiquez non couvertes. Si les pratiques générales sont couvertes, pourquoi... en tout cas.
LISTNUM 1 \l 1621 M. BIBIC : Si on décide comme fournisseur qu'on va envoyer un technicien chez l'abonné dans une période... un délai de 24 heures ou de sept heures ou de 12 heures, c'est à nous de déterminer et non au commissaire, au CCTS de déterminer ce que seraient nos pratiques d'opération, et voilà pourquoi on exige que ces pratiques là ne soient pas dans le mandat du CCTS.
LISTNUM 1 \l 1622 Je vous donne un exemple très concret pour répondre à la question rapidement.
LISTNUM 1 \l 1623 CONSEILLER MORIN : Dernière question.
LISTNUM 1 \l 1624 Vous vous donnez un mandat aujourd'hui, mais on sait ‑‑ et ce n'est pas moi qui vais vous l'apprendre, hein! ‑‑ que le monde des télécommunications évolue rapidement, et caetera.
LISTNUM 1 \l 1625 Est‑ce que, actuellement, vous avez prévu formellement une révision du mandat du commissaire aux plaintes, parce que ce serait peut‑être bien qu'il y ait quelque chose de prévu, que le mandat puisse être révisé éventuellement, et dans quel délai, est‑ce que c'est dans 10 ans ou on n'ouvre pas la porte du tout à une révision du mandat?
LISTNUM 1 \l 1626 MR. McTAGGART: Commissioner Morin, I will give the basic answer, which is that we have not made explicit provision for a review of the mandate.
LISTNUM 1 \l 1627 That being said, I referred earlier to the means by which the fundamental documents of the organization, including the procedural code where its mandate is to find ‑‑ there is a procedure for amending those documents but it is one of the matters that requires a very high level of concurrence among the voting members.
LISTNUM 1 \l 1628 But if at some point down the road the members feel that they would derive benefit from providing their consumers access to the CCTS with respect to new services or matters, then I don't think there would be any hesitation to take advantage of the CCTS at that point.
LISTNUM 1 \l 1629 M. BÉLAND : Monsieur le Président, j'aimerais juste noter qu'on n'a pas répondu à la question de monsieur Morin sur le télémarketing. Je sais que c'est une des questions précises que le Conseil a posées.
LISTNUM 1 \l 1630 THE CHAIRPERSON: I am coming there.
LISTNUM 1 \l 1631 M. BÉLAND : Je suis prêt à répondre.
LISTNUM 1 \l 1632 THE CHAIRPERSON: I am coming there. So a couple of things.
LISTNUM 1 \l 1633 Your position is that the Commissioner should only deal with forborne services, right, and not with regulated services. And I just want to understand that. I just want to understand the practicality. For if the consumer doesn't know what he is complaining about, is it a forborne service or not?
LISTNUM 1 \l 1634 So Mr. McKendry, have I understood it correctly? Somebody complains to you, you do first a triage to see whether it is forborne or not? If it's not forborne presumably you send it to us and say this is part of the regulated service. But you are not sending ‑‑ I hope you are not sending it back to the consumer but you are telling the consumer, "This is actually a matter that is within the CRTC's purview. We have sent your complaint forward. You will hear from them" rather than saying, "No, this is not mine. Go to the CRTC".
LISTNUM 1 \l 1635 Is that how you handle it?
LISTNUM 1 \l 1636 INTERIM CCTS COMMISSIONER McKENDRY: When a consumer calls in that situation we refer them to the CRTC. We don't forward their complaint to the CRTC and, similarly, we would refer them to other bodies. If, for example, it was a privacy complaint we would refer them to the privacy commissioner and we would tell them how to get in touch with the CRTC or the privacy commissioner.
LISTNUM 1 \l 1637 THE CHAIRPERSON: Yes, that's assuming that it is a live voice, but since you want to have most of your complaints in written format ‑‑ so assume you get a fax or something like that, what is your ‑‑ what are you doing then?
LISTNUM 1 \l 1638 INTERIM CCTS COMMISSIONER McKENDRY: We reply in writing with the same information to the consumer that we would had they called in.
LISTNUM 1 \l 1639 THE CHAIRPERSON: Why are you being so unhelpful? Why would you not send the complaint directly to us and tell the consumer, "This is actually a matter for the CRTC. We have forwarded it to the CRTC".
LISTNUM 1 \l 1640 INTERIM CCTS COMMISSIONER McKENDRY: Well, the problem is we are not sure that that is what the consumer would want us to do and we wouldn't want to act on the consumer's behalf without an instruction from them.
LISTNUM 1 \l 1641 And secondly, there is a privacy issue in terms of distributing personal information we have received to another body.
LISTNUM 1 \l 1642 THE CHAIRPERSON: Okay.
LISTNUM 1 \l 1643 Mr. McTaggart, did you want to add something too?
LISTNUM 1 \l 1644 So it's the privacy that is preventing you from it?
LISTNUM 1 \l 1645 INTERIM CCTS COMMISSIONER McKENDRY: I would say it is certainly privacy and not distributing personal information that we haven't been authorized to distribute by the individual. But it's also the individual hasn't asked us to do it either.
LISTNUM 1 \l 1646 THE CHAIRPERSON: But he wants his complaint resolved. He is turning to you for help and rather than sending the complaint to the person who can hopefully resolve it you are turning it back to them. I don't quite understand where the privacy is here. The consumer has already shared his complaint with you. So clearly he wants this issue resolved.
LISTNUM 1 \l 1647 INTERIM CCTS COMMISSIONER McKENDRY: He shared personal information with us for the specific purpose of having CCTS deal with that. That's what he or she gave their consent to. They didn't, when they approached us, consent to us giving that personal information to another party. And in order to protect their privacy and, I would think, to be consistent with the privacy legislation as well, unless they give specific consent for us to distribute the information to ‑‑ their personal information to another party, we shouldn't do that and we don't do that.
LISTNUM 1 \l 1648 But we do try and be helpful. We do try and ‑‑ we do point out to them who we think they should be in touch with if they want to.
LISTNUM 1 \l 1649 THE CHAIRPERSON: But if you adopted a procedure along the way that I suggested, and we sanctioned that procedure, surely in that case you have all the protection that you need because the consumer by going there is buying into your mandate and your mandate specifically specifies that you will refer those complaints that are not within your limit over to us.
LISTNUM 1 \l 1650 INTERIM CCTS COMMISSIONER McKENDRY: Well, there would have to be a mechanism in place for the individual to give their express consent for us to distribute the personal information to another body.
LISTNUM 1 \l 1651 I suppose we could set up a procedure for that. It would have to be a written procedure. It seems to me ‑‑ my first reaction to it is that that would be cumbersome and, in fact, it might be easier for the consumer to just know where to go and go there rather than have us doing it for them and obtaining their express consent.
LISTNUM 1 \l 1652 THE CHAIRPERSON: Well, he obviously doesn't know where to go. Otherwise, he wouldn't have come to you in the first place.
LISTNUM 1 \l 1653 INTERIM CCTS COMMISSIONER McKENDRY: Well ‑‑
LISTNUM 1 \l 1654 THE CHAIRPERSON: That's not part of your mandate.
LISTNUM 1 \l 1655 INTERIM CCTS COMMISSIONER McKENDRY: Well, I guess what I am saying is that; one, we are happy to tell them where they should be going. That's the service we can provide. And two, without their consent to distribute that information to somebody else, we can't do it. I suppose a procedure could be put in place to obtain their written consent or their informed consent, but we don't have that procedure in place now. I would have to think about how we would actually do that.
LISTNUM 1 \l 1656 COMMISSIONER KATZ: Mr. McKendry, do we not today, the CRTC, routinely refer calls that come to us direct to you for complaints that are in the nature of CCTS complaints?
LISTNUM 1 \l 1657 INTERIM CCTS COMMISSIONER McKENDRY: Subject to Mr. Paul expanding on what I'm about to say, my impression is that people that call you are told they can get in touch with us and given the number. They are not ‑‑ the complaint itself isn't transferred to us.
LISTNUM 1 \l 1658 THE CHAIRPERSON: Which takes me to the second issue, which is do not call. That's obviously one of the great concerns of consumers right now and, as you know, there is specific legislation for starting up a do not call list and then for investigation.
LISTNUM 1 \l 1659 One of the questions we ask whether ‑‑ given your expertise, given your knowledge of the consumer, given hopefully the visibility that you will have as you get going, wouldn't it make sense to be one‑stop shopping for those complaints to be investigated by you as well? Obviously, that should not be paid for by the TSPs. They are going to have to find a separate funding mechanism but, in effect, a separate activity but very akin to it.
LISTNUM 1 \l 1660 I gather the absolute unanimous response is "No". Can somebody explain to me why?
LISTNUM 1 \l 1661 MR. BÉLAND: Sure, I will explain briefly.
LISTNUM 1 \l 1662 Our concern, basically, is that the nature of the complaint is very different in the case of telemarketing than in the case of other complaints that would be before the Commissioner and the types of skills that are needed to investigate ‑‑ pursue ‑‑ to resolve that complaint are very different as well.
LISTNUM 1 \l 1663 So once again, the body that we have established here is focussed resolutely on a retail relationship between a provider and a consumer and they have a disagreement about how that contract is functioning and should be interpreted in a particular case.
LISTNUM 1 \l 1664 In a telemarketing complaint context you have a consumer who ‑‑ that some third party is trying to contact or bother him and so you are no longer resolving an issue between two parties. You are trying to figure out who, to begin with this third party is, that's trying to bother one of these parties passing through whom ‑‑ may be passing through multiple telecommunications providers to get to the consumer, possibly even concealing ‑‑ actively concealing their identity. Let's be frank. That happens in telemarketing, things like calling ID, spoofing and so on.
LISTNUM 1 \l 1665 So the nature of the complaint is different. It doesn't touch the contractual relationship between the provider and the consumer. The investigation of the complaint requires much different skills.
LISTNUM 1 \l 1666 To give you an example, the two companies that I have worked in personally; telemarketing complaints often tend to land on our security department which is a department that is staffed to a large extent by retired police officers. I don't think Mr. McKendry is hiring a lot of retired police officers.
LISTNUM 1 \l 1667 So the skills are different, the investigation is different and then, of course, as you mentioned, I don't think the ‑‑ it's clear that telecommunication service providers wouldn't want to pay for that activity and it's clear to me as well that the telemarketers wouldn't want us having the responsibility of determining necessarily how that activity is undertaken either, to see their point of view.
LISTNUM 1 \l 1668 THE CHAIRPERSON: Okay. On telemarketing, a somewhat tangential issue but just you were both aware, you and Mr. Grieve, when we had the essential services hearing a week ago, and to my great surprise I found out that there may be sort of a technological solution to this.
LISTNUM 1 \l 1669 In effect, one of your competitors had said that they offer this service. You get a list of all the telemarketers locally. You check off the ones you don't want to be called from. They block those numbers and then you have the facilities. You get another call from somebody whom you don't like, you just push "*22" or whatever it is, and that number also gets blocked. They offer that service.
LISTNUM 1 \l 1670 Is either one of your companies offering something like that? In effect, the consumer, rather than having an agency, every time the consumer gets a call he deals with this issue.
LISTNUM 1 \l 1671 MR. BIBIC: I am going to, if you will permit me, get back to you on that one.
LISTNUM 1 \l 1672 All I can say is when one party professed to have created this magnificent innovation, I received an e‑mail from one of my colleagues saying, we have had this for 15 years. But that is a very general answer.
LISTNUM 1 \l 1673 I didn't pursue any further, so I am going to get an answer to that very specific question, if possible.
LISTNUM 1 \l 1674 THE CHAIRPERSON: It has nothing to do with this hearing. It is just for our general information in terms of what is there technologically to solve some of the issues we deal with. I would appreciate it if you both could get right back to me on that.
LISTNUM 1 \l 1675 MR. McTAGGART: We will do that.
LISTNUM 1 \l 1676 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 1677 The only other point I think we need to cover is remedies. When I look at what you are proposing, it is remedies of up to $1,000, while most other intervenors suggest, first of all, it should be $10,000.
LISTNUM 1 \l 1678 The other thing is you have a provision of saying a pre‑existing limitation of liabilities identified will be honoured. I don't quite understand what that means because, as I understand it, the compensation on pre‑existing contracts is usually limited to a very small amount. So, would that not make any compensation that the Commissioner can award really be a bit illusory, that most of the times the contract limitation would apply.
LISTNUM 1 \l 1679 MR. BIBIC: Those are two separate issues that do merge together.
LISTNUM 1 \l 1680 THE CHAIRPERSON: Have I mixed them up?
LISTNUM 1 \l 1681 MR. BIBIC: You haven't. They are two separate issues that do merge together at some point.
LISTNUM 1 \l 1682 On the limitation of liability, I think as I mentioned before in response to a question, the appropriate level of those limitations of liability should be determined by the market. Courts enforce them. The CRTC, in the regulated terms of service, there are limitations of liability, and we don't think it is for the CCTS to displace those. So, that is on the limitation of liability.
LISTNUM 1 \l 1683 Putting that aside, going to the $1,000 limit, the members have contractually engaged themselves to allow the Commissioner to investigate complaints and to make recommendations for compensation up to $1,000; in essence, recommend that a resolution be put forward that goes over and above what may be contained within the four corners of the contract between the provider and the customer.
LISTNUM 1 \l 1684 THE CHAIRPERSON: So those have become ‑‑
LISTNUM 1 \l 1685 MR. BIBIC: They could be.
LISTNUM 1 \l 1686 Then it is up to the provider to decide, in this particular case, let's not enforce the strict terms of the contract; let's make this particular customer happy, let's accept the recommendation, in which case, when that is done, the matter is over. This is also one of the reasons why the procedures have been set up such that those decisions, so a recommendation that goes beyond the four corners of the contract that gets accepted by both sides, we suggest shouldn't be made public because publication will act as a disincentive to accept these recommendations.
LISTNUM 1 \l 1687 In cases where the complainant or the TSP doesn't accept the recommendation, and it goes to a formal decision stage, because then it is binding, it is at that point that we feel the Commissioner or the CCTS should be making rules based on the contract.
LISTNUM 1 \l 1688 Back to the recommendation stage, if we get to levels that are above $1,000 and get to $5,000 or $10,000, we are getting into a financial territory where it is more akin to small claims court and there are procedural safeguards and procedural trappings there that protect both sides, which we think should be appropriate, if that is the kind of thing that is envisioned.
LISTNUM 1 \l 1689 THE CHAIRPERSON: I am confused here. We are going to the decision stage. He made a recommendation that is not accepted. He then makes a decision. The decision is you should pay ‑‑ let's say he stays within the $1,000 ‑‑ he says pay them $900, but the limitation of liability is actually much lower, what happens? Does the TSP have to pay the $900, or can it say, no, under that contract the maximum amount that I am liable for is $50, so I will pay $50.
LISTNUM 1 \l 1690 MR. BIBIC: It would be the latter, keeping in mind, however ‑‑ this is an important point.
LISTNUM 1 \l 1691 THE CHAIRPERSON: That is exactly my point. So his award is illusory.
LISTNUM 1 \l 1692 MR. BIBIC: It is not illusory, Mr. Chairman. If the customer went to court, unless the contract were invalid, the Court would enforce the contract. I don't think that the Order in Council was suggesting that the CCTS should make awards which displace contractual rights of either party in those circumstances.
LISTNUM 1 \l 1693 THE CHAIRPERSON: No, but he is primarily a problem resolver. You have chosen him, together with the other members. He tries to work something out, and that will be 90 per cent of the time, we know that.
LISTNUM 1 \l 1694 The few times where he actually has to make a decision, he does it based on his best understanding of the situation, having looked at all of the factors. There you say, TSP, we are not obligated to abide by it, but, however, the decision is over the limit, so we will only pay the liability limit.
LISTNUM 1 \l 1695 That is lousy public relations, but having set up this, having gone through it, since you put the limit relatively low, at $1,000, shouldn't you at least live up to that limit?
LISTNUM 1 \l 1696 MR. BIBIC: As a membership, we actually think that we have done the right thing by the consumer here because what we are saying is we trust the Commissioner, we trust him to make recommendations. In most of the cases we are going to want to make the customer happy. So, in that context, forget the limitation of liability, go up to $1,000 and in most cases, as you point out, I suspect that will end up resolving the matter.
LISTNUM 1 \l 1697 But if we get to a stage where an individual, with no statutory authority, no procedural safeguards of any manner, shape or form in terms of things like discovery and cross‑examination, et cetera, would start making binding rulings that go well beyond what is in the contract, we feel that that would be inappropriate.
LISTNUM 1 \l 1698 Also, I would like to point out, in case it is not clear, the $1,000 limit wouldn't apply to things like obvious billing error. So, if over three months we have misbilled a customer to the tune of $1200, that doesn't form part of the limitation of liability and doesn't form part of the restriction on the Commissioner at the final decision stage.
LISTNUM 1 \l 1699 If there has been an improper billing error, if the complaint is properly borne out, then obviously the customer should be refunded for those costs.
LISTNUM 1 \l 1700 MR. McTAGGART: If I could just add, you mentioned that that kind of a result, the publication of a decision in which the TSP, it looks like they are trying to hide behind a contractual term when the Commissioner otherwise feels that a different remedy would be appropriate, you mentioned that that would be lousy public relations. I don't think we should underestimate the severity of that kind of a result in the marketplace.
LISTNUM 1 \l 1701 On that point, I would just point out that the Broadcast Standards Council, its primary tool is that very kind of public bad publicity.
LISTNUM 1 \l 1702 THE CHAIRPERSON: I understand that. My whole point was that lots of people feel the limit is too low. I thought the defence of the limit was that you will abide by it. You have said if that is what the Commissioner says, we will pay the $1,000 even if we think he is wrong because that is part of the ‑‑ now I am going to say no, we will not pay the $1,000, even if he has said you should pay it because if the limitation is lower, we can choose, in effect, the lower of the two.
LISTNUM 1 \l 1703 It may be a rare example because Mr. McTaggart said it doesn't do much for your image, but I don't know why you would even build that in.
LISTNUM 1 \l 1704 MR. BIBIC: The membership isn't prepared to waive its contractual rights to a body that again hasn't any of these procedural safeguards. We are prepared to strongly consider recommendations.
LISTNUM 1 \l 1705 We also do not believe that the Governor in Council intended for us to waive any contractual rights.
LISTNUM 1 \l 1706 THE CHAIRPERSON: Did you have another point on this?
LISTNUM 1 \l 1707 COMMISSIONER KATZ: I have two follow‑up questions on this morning's discussion.
LISTNUM 1 \l 1708 Do you today or do you plan on recording calls that come in to your offices?
LISTNUM 1 \l 1709 INTERIM CCTS COMMISSIONER McKENDRY: We don't record calls, and we don't have any plans to record calls.
LISTNUM 1 \l 1710 COMMISSIONER KATZ: Do you have capability of hot transferring calls? I am sure you folks in telecom know how to transfer better than anybody else does in order to hot transfer calls, for example, between the CRTC and the CCTS. The customer is kept on the line live while the transfer takes place.
LISTNUM 1 \l 1711 INTERIM CCTS COMMISSIONER McKENDRY: No, we don't do that.
LISTNUM 1 \l 1712 COMMISSIONER KATZ: Would you do it if it made sense to do it?
LISTNUM 1 \l 1713 INTERIM CCTS COMMISSIONER McKENDRY: We would do anything that made sense to do, let me be clear about that.
LISTNUM 1 \l 1714 I am just trying to decide whether or not that would make any sense for us, particularly in terms of the privacy issue I raised up earlier. It doesn't seem to me if we have the consumer on the line and we are in a position to give them the CRTC's phone number that it is a difficult task for them to disconnect from us and call the CRTC. That is probably where I would come down.
LISTNUM 1 \l 1715 In any event, we don't have that technology in place today.
LISTNUM 1 \l 1716 THE CHAIRPERSON: Again, as part of being user friendly, if a consumer is on the line and you say this is a CRTC matter, do you wish me to transfer to the CRTC and he says yes, why wouldn't you do it?
LISTNUM 1 \l 1717 INTERIM CCTS COMMISSIONER McKENDRY: We will take that under consideration, Mr. Chairman. We certainly could do it technically and obviously we would obtain the permission of the caller to do it, which would be a simple thing to do, while they were on the line.
LISTNUM 1 \l 1718 So, we will take that under consideration.
LISTNUM 1 \l 1719 THE CHAIRPERSON: Mr. Bibic, I am sorry to backtrack, but this morning one point came up which was on the qualifications of membership, and you mentioned that you had modeled yourself on the OBSI.
LISTNUM 1 \l 1720 My staff points out that actually the OBSI is slightly different and it specifically requires that the independent members have a background in consumer and banking matters in that case, while here you seem to specifically exclude anybody who has a consumer background from qualifying as one of the three independent members.
LISTNUM 1 \l 1721 We look at the chart here. We see collectively appoint three independent directors based on, as I understand the criteria, you cannot have been a member of a consumer group, if I recall from memory, I don't know whether it is for a certain period of time. Why is there an exclusion of consumers from the independents?
LISTNUM 1 \l 1722 MR. BIBIC: Persons who were with consumer lobbying groups or who have consumer advocate backgrounds are not excluded per se. They are subject to the three‑year cooling off period that all other categories of potential candidates are, except for the government employees, as Mr. McTaggart identified earlier.
LISTNUM 1 \l 1723 So, there is one seat reserved for persons who are actually currently in that kind of role. Others, for example, if Mr. McKendry were not the interim Commissioner, he has a consumer advocate background, he could have been eligible for a seat on the board.
LISTNUM 1 \l 1724 THE CHAIRPERSON: The OBSI, just looking at the writing, says individuals with significant background in public and consumer affairs. So, somebody, for argument's sake, who was director of the Consumers' Association of Canada, would be eligible, as long as he wasn't that for the last three years.
LISTNUM 1 \l 1725 MR. BIBIC: That is correct.
LISTNUM 1 \l 1726 THE CHAIRPERSON: And that three‑year cooling off period is what you think is adequate so that he becomes a truly impartial member?
LISTNUM 1 \l 1727 MR. BIBIC: Correct. The same thing would apply to a direct officer or employee of any TSP member. So, myself, for example.
LISTNUM 1 \l 1728 COMMISSIONER KATZ: Just one or two more questions, if you don't mind. Bear with me here.
LISTNUM 1 \l 1729 I read the time lines that exist between when a complaint comes in to the CCTS and the time for the TSP to respond back again. What I didn't see, and maybe I missed it, is how long the CCTS would take to come up with a resolution one way or the other.
LISTNUM 1 \l 1730 Are there time lines for the deliberations within CCTS?
LISTNUM 1 \l 1731 MR. ABBOTT: Thank you, Commissioner Katz.
LISTNUM 1 \l 1732 No, there are not specific time lines set out, but I think it is important to remember that the Commissioner is there as an impartial body. He is also, in effect, an adjudicator and involved in investigations and he really needs to have the discretion to take the time that he feels is required to do his job.
LISTNUM 1 \l 1733 I think it would be probably inappropriate for the procedural code to say you only have ten days to do this, and if you run up against the end of the time, then you just don't get to consider any more.
LISTNUM 1 \l 1734 That being said, certainly there is a general obligation set out in the constating documents that the organization be run in an efficient, effective and quick and consumer‑friendly manner, which I believe would mean that the Commissioner and his staff would address things as soon as possible, and there would be no undue delay.
LISTNUM 1 \l 1735 INTERIM CCTS COMMISSIONER McKENDRY: Commissioner Katz, if I could just add something to that.
LISTNUM 1 \l 1736 It would be my view, and I don't know whether this will happen during the period of the interim Commissioner, but certainly the permanent Commissioner would want to consider putting in place performance standards for the office's work, and reporting on those performance standards is probably in the annual report. I think that would be a valuable tool, not only for the management of CCTS, but also in terms of showing the public that we are efficient and that we do work as quickly as we can.
LISTNUM 1 \l 1737 COMMISSIONER KATZ: We have been acclimatized to service standards at the CRTC as well.
LISTNUM 1 \l 1738 The only other question I have is the annual report, it is an annual report by definition so it comes out once a year. Is there a period of time within which the end of whatever fiscal year you operate it will be out, number one, and number two, along with that, are there interim reports that will be made available to, say, the CRTC just to see the trends and stuff or is this once a year annual report that you will see X number of days after the end of the fiscal year?
LISTNUM 1 \l 1739 MR. McTAGGART: I will be corrected by counsel if I misstate this, but, no, I don't believe there is a specific time frame within which the annual report must be issued, nor is there a provision made for interim reports other than to the members themselves during the course of the year.
LISTNUM 1 \l 1740 COMMISSIONER KATZ: Would the members consider making it available to the CRTC at the time that they see it?
LISTNUM 1 \l 1741 MR. McTAGGART: I have just been reminded with respect to the timing of the annual report, and I apologize, I will have to ask you to ask your question again, but with respect to the annual report, it is a matter that comes before the annual meeting of members. So, there is a certain amount of timing because it would be approved in its final form at the annual meeting of members. So that tells you the timing.
LISTNUM 1 \l 1742 I apologize, I didn't hear your follow‑up question.
LISTNUM 1 \l 1743 COMMISSIONER KATZ: Just whether there would be some availability of your interim reports that you present to your committees or your board as well. The reason I ask that question is we do get in the CRTC our statistics of calls coming in to the CRTC client services, as we call them, as well. So it would be a measure of comparison to just see how one is growing while one may not, as the case may be.
LISTNUM 1 \l 1744 MR. McTAGGART: That is not something on which I can commit the members to anything at the moment except to say that we will take it away and think about what kind of information sharing would be possible during the course of the year.
LISTNUM 1 \l 1745 COMMISSIONER KATZ: Thank you.
LISTNUM 1 \l 1746 THE CHAIRPERSON: One last question. My colleague, Commissioner Morin raised the issue of periodic reviews or a review of the whole thing in three years. You have said you hadn't planned it. But I presume you wouldn't be adverse if we were to mandate you to do that or we would reserve the right to ask you to review it to make sure that it does fulfil the function for which it was set up?
LISTNUM 1 \l 1747 MR. BIBIC: We have no objection.
LISTNUM 1 \l 1748 THE CHAIRPERSON: Thank you very much. We have been very critical of you and asked many questions because you set this thing up and you are paying the fare, so I apologize that we were overly harsh.
LISTNUM 1 \l 1749 I repeat what I said at the beginning. We are very impressed with the fact that you set it up, that it is working and it is there.
LISTNUM 1 \l 1750 We will break for lunch now. Then after lunch we will hear from others. Thank you very much. Let's take an hour break.
‑‑‑ Recessed at 1254 / Suspension à 1254
‑‑‑ Resumed at 1402 / Reprise à 1402
LISTNUM 1 \l 1751 THE CHAIRPERSON: Madam Secretary, who do we have today, or this afternoon?
LISTNUM 1 \l 1752 THE SECRETARY: Thank you, Mr. Chairman.
LISTNUM 1 \l 1753 We'll proceed with the next party which is the Canadian Internet Policy and Public Interest Clinic and I would ask Ms Philippa Lawson to introduce her colleague, after which you'll have 20 minutes for your presentation.
LISTNUM 1 \l 1754 Please go ahead.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 1755 MS LAWSON: Thank you very much.
LISTNUM 1 \l 1756 Good afternoon, Mr. Chairman.
LISTNUM 1 \l 1757 THE CHAIRPERSON: Good afternoon.
LISTNUM 1 \l 1758 MS LAWSON: Commissioners.
LISTNUM 1 \l 1759 Thank you for the opportunity to comment today on the design of a new Canadian Telecommunications consumer agency.
LISTNUM 1 \l 1760 My name is Philippa Lawson, I'm the Director of CIPPIC, the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, Faculty of Law.
LISTNUM 1 \l 1761 With me today is a student intern at CIPPIC, Michael de Santis, and I'd like to thank him as well as our articling student Jocelyne Cleary for their assistance in preparing CIPPIC's submissions today.
LISTNUM 1 \l 1762 Mr. Chairman, Commissioners, you have an opportunity through this proceeding to create an effective body for resolving consumer complaints and marketplace issues in an increasingly deregulated telecommunications market.
LISTNUM 1 \l 1763 The effectiveness of the body you create will depend on a number of factors, most importantly its mandate, its powers and its independence from industry.
LISTNUM 1 \l 1764 We have clear marching orders from Cabinet calling for an independent agency in which all telecommunication service providers participate with a mandate to look into systemic issues as well as individual complaints.
LISTNUM 1 \l 1765 We also have a model in operation, the industry created CCTS. The industry model goes some way towards establishing the independent and effective agency envisaged in Cabinet's Order‑in‑Council, however, in our view, a number of changes are critical if it is to meet Cabinet's direction and to be truly effective.
LISTNUM 1 \l 1766 These changes include the following seven:
LISTNUM 1 \l 1767 First, it should cover all telecommunication service providers, not just those who wish to join.
LISTNUM 1 \l 1768 Second, it should be truly independent of industry, especially with respect to such matters as reporting to the public and to the CRTC.
LISTNUM 1 \l 1769 Third, it should have an explicit mandate to deal with systemic issues as well as individual complaints.
LISTNUM 1 \l 1770 Fourth, it must be able to deal with the full range of issues that telecom consumers typically have with their providers, including such issues as customer service, unfair contract terms, sales tactics, misleading advertising and hidden fees.
LISTNUM 1 \l 1771 Fifth, it should publish statistics on all complaints by company, not just those that escalate to the final decision stage.
LISTNUM 1 \l 1772 Sixth, it should be empowered to order appropriate levels of compensation regardless of liability limitations that companies purport to impose on their customers by contract.
LISTNUM 1 \l 1773 And, finally, it should be named and actively promoted in such a way that consumers across Canada are aware of it, can easily find it when looking and are referred to it in all appropriate cases.
LISTNUM 1 \l 1774 I will now address the issues in the order requested.
LISTNUM 1 \l 1775 Membership. The Order‑in‑Council states, and I quote:
"All telecommunication service providers should participate in and contribute to the financing of an effective consumer agency." (As read)
LISTNUM 1 \l 1776 MS LAWSON: The Telecom Policy Review Panel (TPRP) as well recommended a mandatory model backed up with new CRTC enforcement powers. Well, we think that should be the end of the debate on this issue.
LISTNUM 1 \l 1777 My friends from the Companies have, at least until today, been putting up strong opposition. They would like a voluntary model under which companies are free to set up alternative complaints resolution bodies or not to offer consumers any recourse beyond their own complaints handling. Indeed, a number of players have chosen not to join.
LISTNUM 1 \l 1778 The Companies claim that market forces are sufficient to ensure that the CCTS continues to operate. This argument may seem attractive at first blush, but recall that the CCTS was not a voluntary initiative; industry was effectively ordered to set it up.
LISTNUM 1 \l 1779 Market forces are not driving this initiative and are unlikely to drive it in the future. This is because consumers don't generally think about dispute resolution when they sign up for service. Unlike price and fancy service features, it's not something that companies advertise.
LISTNUM 1 \l 1780 So, if it's voluntary it's likely never to be comprehensive and, indeed, may well leave consumers in certain geographic areas without any recourse beyond their TSP.
LISTNUM 1 \l 1781 If voluntary, there would be no guarantee that the agency would continue operations into the future. Like the Cable Television Standards Council and the Ombudsman for Long Distance Telecommunication Services, both of which were voluntary industry initiatives, it could well die a quiet death.
LISTNUM 1 \l 1782 Making it mandatory will have the added benefit of creating a barrier to entry by bad actors. If they're less likely to get away with poor service in Canada, they may decide to stay away.
LISTNUM 1 \l 1783 It will also ensure that consumers have a single point of contact for resolving telecom disputes. This, in our view, is more efficient than allowing two or more schemes to operate at the same time.
LISTNUM 1 \l 1784 I know you've asked the Broadcast Standards Council to appear today and we think they do a fine job as a voluntary body, but that is an entirely distinguishable enterprise from what we're talking about today on a number of counts; most notably, that complainants always have recourse to the CRTC, it's a regulated industry.
LISTNUM 1 \l 1785 Moreover, billing or other service disputes are of an entirely different nature than offensive content complaints. They are persistent, while offensive content is ephemeral. They involve money, not opinions. Complaints are about the service provider itself, not third party content. Remedies involve compensation, not just apologies and changing service providers is much more onerous for consumers than simply changing the channel.
LISTNUM 1 \l 1786 So, with great respect for Mr. Cohen and the CBSC, we feel its relevance to this proceeding is quite limited.
LISTNUM 1 \l 1787 Governance structure. Cabinet's order is clear that:
"The governance structure of an effective consumer agency should be designed to ensure its independence from the telecommunications industry." (As read)
LISTNUM 1 \l 1788 MS LAWSON: That was a quote.
LISTNUM 1 \l 1789 The CCTS model gives industry too much power over the agency and, therefore, does not, in our view, meet Cabinet's requirement of independence.
LISTNUM 1 \l 1790 First, although this is an agency designed to serve consumers, only one of the seven board spots is reserved for a consumer representative. In contrast, industry reserves three seats for itself. There should be at least as many seats on the board for informed consumer representatives as there is for industry, at least in order to balance the competing interests. If necessary, one tie‑breaking seat can be given to an independent director with no association with industry or consumer groups.
LISTNUM 1 \l 1791 Second, even if board membership is balanced, the industry has created a structure that ties the hands of the Commissioner in at least three critical ways.
LISTNUM 1 \l 1792 First, the Commissioner cannot report on systemic issues or initiate the development of industry codes of practice without being requested to do so by the industry members, and I refer to section 86 of the bylaws, yet these are critical functions that Cabinet explicitly set out for the new agency.
LISTNUM 1 \l 1793 Second, the Commissioner must get board approval in order to conduct research into complaint trends, and I refer to paragraph 13 of the Companies' July submission, or to work on industry codes of conduct or standards. Again, it's unclear what this achieves other than to keep the agency from doing the work it should be doing.
LISTNUM 1 \l 1794 And, third, board approval of the annual report requires a two‑thirds majority which equates to five out of seven board votes and, thus, allows the industry an effective veto over reporting that may put them in a bad light.
LISTNUM 1 \l 1795 Mr. Chairman, it's hardly a safeguard to give the very industry that is being disciplined by a supposedly independent Commissioner the power to prevent that Commissioner from reporting and working on issues he or she deems worthy of attention.
LISTNUM 1 \l 1796 In no case should industry have the right to interfere with, let alone have a veto over Commissioner publications, activities or determinations regarding marketplace issues or complaints.
LISTNUM 1 \l 1797 I'd also note that the TSPs, as you've pointed out this morning, set up the bylaws so that the procedural code and the bylaws cannot be changed without an extraordinary resolution, that including two‑thirds of industry members themselves.
LISTNUM 1 \l 1798 Given the novel nature of this initiative, the fact that the very industry subject to the agency orders has been tasked with designing it, there is a strong likelihood, in our view, that changes will be needed in the future to better serve the public.
LISTNUM 1 \l 1799 Such changes could involve expanding the mandate or changing procedural rules, but such changes may well meet industry objection because of their own self interest and, therefore, industry may block them under this model.
LISTNUM 1 \l 1800 And I'd point out that the Ombudsman for Banking Services and Investments recently had a review done which recently recommended enlarging its mandate to include systemic issues. In that case I expect it to go through because their board includes seven independent members as opposed to three from industry.
LISTNUM 1 \l 1801 Moving on to issues of mandate. I'd like to talk first about systemic issues and then about eligible complaints.
LISTNUM 1 \l 1802 On systemic issues, quoting again from the Order‑in‑ Council:
"The mandate of an effective consumer agency should include, in addition to resolving complaints, the development or approval of related industry codes of conduct and standards, publishing an annual report on the nature, number and resolution of complaints received for each telecommunication service provider, and, as appropriate, identifying issues or trends that may warrant further attention by the Commission and the government." (As read)
LISTNUM 1 \l 1803 In spite of this clear direction from cabinet, the industry model focuses almost exclusively on individual complaints, providing the Commissioner with potentially no leeway to pursue these other equally important activities.
LISTNUM 1 \l 1804 As already mentioned, the industry has given itself the right to block publication of reports that it doesn't like, indeed to prevent the Commissioner from looking into systemic issues in the first place.
LISTNUM 1 \l 1805 The letters patent of the industry corporation limit its objects to individual complaints resolution and the publishing of annual reports. The procedural code deals only with complaints resolution, and the by‑laws give the Commissioner no powers to report on systemic issues or to develop industry codes of conduct except upon request by TSP members. I refer you to section 86 of the by‑law.
LISTNUM 1 \l 1806 Yet the agency's most valuable function, in our view, may be its ability to deal with and resolve recurring or broad based marketplace problems. In CIPPIC's view, the agency is going to be of very limited effectiveness if all it does is resolve individual consumer complaints on a largely confidential basis.
LISTNUM 1 \l 1807 Many of the issues coming before the agency will be of a systemic nature, requiring action or a company‑wide or even industry‑wide basis. For reasons of efficiency and effectiveness, the agency should be given explicit powers, indeed duties, to investigate and report on such issues.
LISTNUM 1 \l 1808 We agree with the TPRP that the agency should be empowered "to conduct research and analysis into significant or recurring consumer problems," and to refer such matters to the CRTC with a requirement for the CRTC to respond within six months or some other reasonable time.
LISTNUM 1 \l 1809 On to eligible complaints. First, matters of scope.
LISTNUM 1 \l 1810 An effective consumer agency should be empowered to deal with all consumer complaints involving telecommunication services other than those that involve non‑telecommunication services or services beyond the TSP's control that are being or will be resolved by another body, or that have to do with content, the setting of prices or general telecommunications policy more properly handled by the CRTC
LISTNUM 1 \l 1811 In particular, the agency should be empowered to deal with complaints about contract terms, customer service, misleading advertising, sales tactics and other operating practices, all of these being matters that the CCTS currently treats as outside its scope.
LISTNUM 1 \l 1812 Interestingly, complaints about customer service and unfair contract terms account for close to half of all complaints to the Australian telecommunications industry ombudsman. Common customer service complaints include failing to act on a customer's request, giving incorrect or inadequate advice or not being able to be contacted. Common complaints about contract terms include high termination fees, changing terms in mid contract and providing inadequate or misleading advice at point of sale.
LISTNUM 1 \l 1813 I have heard no good reason why the Canadian body shouldn't be likewise empowered to deal with these kinds of issues.
LISTNUM 1 \l 1814 Overlapping jurisdiction. Issues such as misleading advertising and privacy should not be treated as outside the agency's scope simply because another agency has jurisdiction over them. Consumers in this case must be assured of recourse from that other agency before they are abandoned. We all know that individual complaints about misleading advertising are rarely, if ever, acted upon by the Competition Bureau. The bureau is not a consumer protection agency and doesn't pretend to offer consumers recourse. For us to pretend that consumers have effective avenues of resource against companies for this kind of activity is to deny reality.
LISTNUM 1 \l 1815 Regulated services. We agree with the TPRP that regulated, as well as unregulated, services should be covered by the agency. There are a number of reasons why this makes sense.
LISTNUM 1 \l 1816 From the consumer perspective there is no difference. Telecom service is telecom service, and the same recourse should be available for poor service, whether it is regulated or not.
LISTNUM 1 \l 1817 Second, the category of regulated service is a moving target.
LISTNUM 1 \l 1818 Third, it is more efficient for one agency to deal with consumer complaints about all telecommunication services. In fact, having two agencies dealing with similar kinds of complaints risks, in our view, far more wasteful duplication of resources than that which the companies claim would result if complainants have recourse to the CRTC, should they not be happy with the agency's decision.
LISTNUM 1 \l 1819 Finally, mixed issues. Services and matters that are outside the agency's mandate need to be much more clearly defined than they currently are in the CCTS model. Even so, some issues will undoubtedly involve matters that can be seen as either in or out of the scope of the agency's mandate. The constating documents should state that wherever an issue can be reasonably interpreted as within the agency's scope, it should be treated as such.
LISTNUM 1 \l 1820 On to the issue of remedies. The TPRP recommended a maximum compensation limit of $10,000, and so do we. Similar limits are applied in both Australia and the UK. While the vast bulk of complaints are likely to involve losses of less than $1,000, there will realistically be at least some for which a higher level of compensation is justified. It is not clear to us why the agency should be restricted from ordering awards of higher than $1,000 in deserving cases.
LISTNUM 1 \l 1821 More importantly, however, telecom service providers should not be able to undermine the regime by inserting into their terms of service clauses that limit their liability for precisely the kind of behaviour that the new agency is meant to address. If contractual restrictions are allowed to take precedence over the agency's power to award compensation, it won't matter what the limit on awards is. Companies will simply, as they do now, ensure that their terms of service relieve them of any meaningful liability.
LISTNUM 1 \l 1822 We did a quick review of some of the CCTS's member terms of service, and found that they all contain liability limitation clauses that would, under the CCTS approach, neutralize the agency's ability to award compensation in a wide range of cases. Most deny liability whatsoever, zero; others limit it to $20 or possibly $100 in one case.
LISTNUM 1 \l 1823 It is important to note that these terms are not legally enforceable simply by virtue of being in the contract. Indeed, we would argue that they are invalid under both provincial consumer protection legislation and the common law doctrine of unconscionability.
LISTNUM 1 \l 1824 We are unaware of any case law in Canada upholding, for example, Bell's $20 liability limitation for breach of contract. We doubt that any court would uphold such limitations on consumer remedies in the deregulated context.
LISTNUM 1 \l 1825 The law does not prohibit companies from putting outrageously unfair terms into contracts. This is the problem. So of course they do, knowing full well that such terms will not be enforced but hoping that they might at least deter some consumers. So, unless confirmed by the courts as fair and enforceable, these clauses should be given no weight in the determination of appropriate remedies by the new agency.
LISTNUM 1 \l 1826 With respect to other contractual clauses such as time periods for bringing complaints, we recommend that the agency rules take precedence over conflicting contractual provisions.
LISTNUM 1 \l 1827 Operations. For the most part the CCTS procedures for complaint handling are fine. However, we do believe that a few changes are necessary.
LISTNUM 1 \l 1828 First, e‑mail complaints should be accepted.
LISTNUM 1 \l 1829 Secondly, web forms should not be used unless they automatically send a copy of the complaint back to the complainant so that the complainant has a record of what she sent in.
LISTNUM 1 \l 1830 Third, complaints should be accepted over the phone, as they are in Australia.
LISTNUM 1 \l 1831 Fourth, complaints should not be rejected simply because complainants failed to specify the result they would like to see, or their content to be bound by the agency's rules, which is currently a requirement in the procedural code.
LISTNUM 1 \l 1832 Fifth, complaints should not be rejected simply because they are filed by several complainants, and that is required under procedural code 6.14.
LISTNUM 1 \l 1833 Finally, 20 business days is too long for the initial company response, in our view, to a complaint from the agency. The time lines should be shortened.
LISTNUM 1 \l 1834 Now quickly on to other matters. First, confidentiality. As already noted, the Order in Council calls for the agency to publish an annual report on the nature, number and resolution of complaints received for each telecom service provider. It clearly, therefore, contemplates publication of reports identifying complaints by provider. Yet, the CCTS by‑laws, and again I refer to section 86, require that any reports on industry issues shall maintain the confidentiality of the TSP members, completely contradicting cabinet's direction.
LISTNUM 1 \l 1835 Publicity is a powerful compliance tool and can be used to encourage early stage complaint resolution. However, it is also important for general transparency and accountability purposes, key components of an effective marketplace. If the anonymity of TSPs is protected, except with respect to the few complaints that reach a binding decision stage, the Order in Council will not, in our view, have been fulfilled. The agency will be severely frustrated in its ability to inform the public and the CRTC, and the potential for this process to affect marketplace behaviour will be limited.
LISTNUM 1 \l 1836 The agency should therefore be empowered to name TSPs in all general statistics reporting by issue and by complaint level as is done in Australia, as Commissioner Morin has already pointed out.
LISTNUM 1 \l 1837 I have with me copies of the most recent Australian complaints reports for your review, which I can pass around, which just show how it is being done without any ill effect on the industry.
LISTNUM 1 \l 1838 Finally, Mr. Chairman, on the matter of promotion, in order for the agency to be effective, it must be well known among consumers and individual consumers must be referred to it in all appropriate cases. The CRTC should therefore ensure that all TSP members clearly and prominently advertise the agency on their websites, in their promotional literature and on all bill statements. Efforts should be made to ensure that search engine optimization occurs.
LISTNUM 1 \l 1839 Consideration should also be given, in our view, to a new name for the agency. While it is obvious that a lot of lawyers worked on this initiative, it doesn't seem to us that the companies put their considerable marketing resources to work on the name.
LISTNUM 1 \l 1840 In conclusion, Mr. Chairman, in short, consumers, cabinet and an expert panel established by the government are all calling for an independent effective agency with sufficient powers to influence market behaviour in the telecommunications industry, as well as to resolve individual complaints. The CCTS is not yet that agency.
LISTNUM 1 \l 1841 Thank you.
LISTNUM 1 \l 1842 THE CHAIRPERSON: Thank you very much, Ms Lawson.
LISTNUM 1 \l 1843 I didn't expect to see you so soon again before me, but it is always a pleasure to hear from you. That was certainly a very logical presentation.
LISTNUM 1 \l 1844 You really have approached this a little bit like legislation. If we legislated a consumer agency, what should be the power there? We are very much restrained here by the Order in Council.
LISTNUM 1 \l 1845 Your point four says it must be able to deal with a full range of issues that telecom consumers typically have from all providers, including customer service, sales tactics, misleading advertising and hidden fees. I can't see any basis for that in the Order in Council.
LISTNUM 1 \l 1846 Where is the authority in the Order of Council basically suggesting that the CCTS not only deal with complaints in the forborne area, but in effect become sort of the basket to assemble all consumer complaints. I don't deny that it would be wonderful to have that power, but what we are supposed to approve is something that is responsive to the Order in Council and, frankly, I just don't see what portion of the Order in Council you think allows us to exact this kind of provision from the industry, which after all is putting the CCTS into place.
LISTNUM 1 \l 1847 MS LAWSON: Mr. Chairman, the Order in Council calls for an effective consumer telecommunications agency.
LISTNUM 1 \l 1848 We are not suggesting that the mandate go any further than telecommunication services. I didn't mention, but small business obviously as well as consumer.
LISTNUM 1 \l 1849 What we are suggesting should be within the mandate of the organization are issues that are within the mandate of other organizations, such as the Australian telecommunications industry ombudsman. They go to the issue of effectiveness.
LISTNUM 1 \l 1850 These are all matters that occur in the forborne telecommunications marketplace. That is a separate issue from the regulated versus unregulated issue.
LISTNUM 1 \l 1851 THE CHAIRPERSON: You are losing me here.
LISTNUM 1 \l 1852 We are having forborne areas, and cabinet clearly said this is forborne, unregulated, make sure the consumer doesn't get left out. Now here you come and say, well, no, we want a comprehensive consumer agency, it should deal with regulated as well as forborne areas because the consumer doesn't know the difference, and there is a whole bunch of other things that the consumer has grievances about, such as sales tactics, misleading advertising, give it to them too.
LISTNUM 1 \l 1853 Frankly, I just don't see where the word effective means that we can mandate all of this kind of authority on to the CCTS.
LISTNUM 1 \l 1854 MS LAWSON: Again, we are not suggesting that you go beyond the Order in Council in any way at all. We are saying these are the kinds of complaints that consumers have about telecommunication services.
LISTNUM 1 \l 1855 As I pointed out, they make up close to half of the complaints dealt with in Australia. Let's put aside the issue of regulated versus unregulated. Let's just accept that we are going with forborne only.
LISTNUM 1 \l 1856 THE CHAIRPERSON: Okay.
LISTNUM 1 \l 1857 MS LAWSON: So, we are just talking about forborne telecommunication services. Then we are talking about what is in scope and what is out of scope.
LISTNUM 1 \l 1858 We have been looking at the industry's proposal. They have a nice chart here with the services and the matters that are within the scope, and the services and matters that are outside the scope.
LISTNUM 1 \l 1859 THE CHAIRPERSON: What document are you referring to?
LISTNUM 1 \l 1860 MS LAWSON: It is from their website. I think I printed this off from the website, the scope of the mandate. There is a chart and it appears at page 9 of the July 23rd submission. So, the proposal, the original proposal from the companies when they talk about eligible complaints. So, page 9, paragraph 35.
LISTNUM 1 \l 1861 THE CHAIRPERSON: Thank you.
LISTNUM 1 \l 1862 MS LAWSON: There is a nice chart there showing the proposal, the CCTS model. The services that are within scope and the services that are out of scope and then similarly with matters.
LISTNUM 1 \l 1863 We looked at this and we are looking at, okay, consumers are going to want to have as many of their complaints about telecommunication services as possible dealt with by this agency. So, we recognize that there are a number of things that should not be within the scope, but we find that many of the items listed here, such as contract terms, false or misleading advertising, policy matters stated just baldly, policy matters, general operating practices not covered in customer contract terms or commitments, there are many complaints that could be characterized as falling under those categories that we think should be dealt with by a Commissioner and that I would suggest cabinet expected this new agency to deal with as well, otherwise in our view it would not meet cabinet's requirement of an effective consumer agency.
LISTNUM 1 \l 1864 THE CHAIRPERSON: Let me turn it the other way around. Claims of false or misleading advertising is here clearly marked as outside the scope of the CCTS. You say this is one of the main complaints consumers have. Fine, that is accepted. That is what the Australian evidence says.
LISTNUM 1 \l 1865 Now I am turning to the Order in Council and I am saying where on earth is this covered, and I don't find it.
LISTNUM 1 \l 1866 MS LAWSON: No, the Order in Council doesn't get into that level of detail, nor does the Order in Council say that they should be outside the scope.
LISTNUM 1 \l 1867 I think the Order in Council doesn't help us at this level of detail. It doesn't push it in either direction. It just says it needs to be effective, and you have to decide what is the best result here to achieve an effective agency.
LISTNUM 1 \l 1868 THE CHAIRPERSON: You made a very eloquent point about systemic issues, trends, et cetera, which are specifically mentioned in the Order in Council and you fault the constating documents for basically depriving the Commissioner of any authority over that unless he has got the consent of the TSP. I think that is a very valid point. Cabinet asked for it, we can't deliver it without ‑‑ is that a proper restriction or not?
LISTNUM 1 \l 1869 I must say I am somewhat hard pressed to find sales tactics, misleading advertising or hidden fees all in the concept of an effective agency. Effective presumably to deal with a problem that is coming up, and the problem that is coming up, we are going to have forborne areas, which we didn't have before.
LISTNUM 1 \l 1870 MS LAWSON: And these are examples of the kinds of issues that consumers have in forborne telecommunications markets. They are coming to us right now. We have had a number of complaints about misleading advertising by internet service providers of highspeed internet service. The only recourse for consumers right now is to go to the courts on that.
LISTNUM 1 \l 1871 We think this is something that it would be very useful for the agency to be able to address. Absolutely cabinet did not get into this level of detail, but what we have here is a proposal from the industry that is frankly biased in their favour. They are cutting out as much as they possibly can here, and we think that it is too much.
LISTNUM 1 \l 1872 We went and looked at other models ‑‑ Australia, in particular ‑‑ to see what were the kinds of complaints that that body was receiving, and we found that many of the common complaints there would be outside the scope of this agency.
LISTNUM 1 \l 1873 THE CHAIRPERSON: I guess you and I differ here. You are saying it would be nice, they should have this. I don't necessarily dispute it, I am just saying I am trying to base myself, put myself in the Order in Council, and I have a difficulty there.
LISTNUM 1 \l 1874 What about regulated services, how do you see that the Order in Council allows us to also suggest that the CCTS deal with regulated services? You say you agree with the TPRP, which suggested that.
LISTNUM 1 \l 1875 MS LAWSON: The TPRP was quite clear. They addressed it.
LISTNUM 1 \l 1876 I don't think cabinet addressed it. There are a number of issues that cabinet has not addressed, but the Order in Council doesn't help you either way. It just says you need to create an effective agency.
LISTNUM 1 \l 1877 So, I don't think the Order in Council pushes it in one direction or the other.
LISTNUM 1 \l 1878 THE CHAIRPERSON: We heard Mr. McKendry this morning on this whole issue on which I asked him obviously a consumer doesn't know whether an area is forborne or not, et cetera. So, he will be the first point of contact. He will advertise himself, the ASTPs will advertise, we will advertise he exists. If I have a complaint, I call him up.
LISTNUM 1 \l 1879 Now, when he says he doesn't have authority, he essentially suggests that he will tell the people call the CRTC, here is a name, here is the number, here is their website.
LISTNUM 1 \l 1880 Consumers aren't going to be very happy about that. They will want somebody to address their problem, rather than being forwarded. Do you see any way that we can get around this, any practical way?
LISTNUM 1 \l 1881 MS LAWSON: That we can get, excuse me, around this?
LISTNUM 1 \l 1882 THE CHAIRPERSON: Yes. He has no authority for regulated services; we have, yet, he will be the recipient of all the complaints.
LISTNUM 1 \l 1883 MS LAWSON: You mean how do we operationalize the recommendation?
LISTNUM 1 \l 1884 THE CHAIRPERSON: Yes, right.
LISTNUM 1 \l 1885 MS LAWSON: My thinking is that the CRTC could delegate its powers the way it does to the Canadian Broadcast Standards Council right now. Those are all regulated matters that consumers can make their complaints about offensive content to the CRTC directly, but the CRTC allows those complaints to be dealt with first by the CBSC.
LISTNUM 1 \l 1886 THE CHAIRPERSON: It had unfortunately impact on the cost of those operations, which is one thing we would have to work out. But that is an interesting suggestion.
LISTNUM 1 \l 1887 On the remedies, and you were here this morning, you suggest, if I understand it correctly, (a), go to $1,000, and (b), that the contract limit, liability limitations are probably not enforceable in any event, but shouldn't be ignored here by the Commissioner.
LISTNUM 1 \l 1888 Again, how do we operationalize this?
MS LAWSON: In the rules of the constating documents, the telecom service provider members of the organization or the companies that are subject to it would agree to give the agency the power to award compensation and to apply rules that may be in conflict with terms that they choose to put in their contracts.
LISTNUM 1 \l 1889 THE CHAIRPERSON: Effectively, if we take your limit of $10,000, they would waive their contractual liability for any amount under $10,000? The TSP would basically say any award that you make under $10,000 we will accept and we will not exclude it on the basis of contract?
LISTNUM 1 \l 1890 MS LAWSON: Exactly.
LISTNUM 1 \l 1891 THE CHAIRPERSON: ‑‑ exclude it on the basis of ‑‑
LISTNUM 1 \l 1892 MS LAWSON: On contract, exactly, yes.
LISTNUM 1 \l 1893 Yes, I mean, as I said already, these are not necessarily enforceable terms and the point is the law doesn't prohibit companies from putting the terms in their ‑‑ they can put whatever they want in the contracts and then wait and see if it is legally enforceable. And in our view these are generally not legally enforceable.
LISTNUM 1 \l 1894 THE CHAIRPERSON: Now, on what you call other matters, confidentiality, you obviously believe very much in the power of shaming and naming people and pointing it out, et cetera, and feel the Commissioner should do that.
LISTNUM 1 \l 1895 Again, do you see that in the order in council, that there is a requirement to identify individual companies that are offside and to extend it there or is this again something that you feel is implicit in the order?
LISTNUM 1 \l 1896 MS LAWSON: I think it's pretty explicit in the order, but I would first just clarify our position on naming and shaming.
LISTNUM 1 \l 1897 We are ‑‑ and contrary to the written version and the comments that I submitted ‑‑ originally what is in there suggests that they should be publicizing recommendations by company. But we are willing to concede on that one and say, okay, with respect to individual complaints leave it to the final decisions.
LISTNUM 1 \l 1898 But when it comes to just general industry statistics that Commissioner Morin was referring to earlier this morning and for which I passed around some examples, that is just general information. That's hardly ‑‑ I mean, it's hardly even naming and shaming. It has got everyone named there and it just shows all of the complaints by the stage of complaint process or by the issue, and that to us is just very general marketplace issues that you should be aware of and that the public has the right to know about.
LISTNUM 1 \l 1899 THE CHAIRPERSON: But you are not going so far as to say with regard to TELUS there were 10,000 complaints, 5,000 were resolved at stage one and 4,000 at stage two, et cetera, or did you feel that's what the Commissioner should be doing?
LISTNUM 1 \l 1900 MS LAWSON: Yes, oh, yes. And sorry ‑‑ and to answer your question, the order in council is explicit about this where it says, "Whereas" ‑‑ in the seventh paragraph, "Whereas the Governor in Council considers that" and then the fourth line down:
"The mandate of an effective consumer agency should include; in addition to resolving complaints, publishing an annual report on the nature, number and resolution of complaints received for each telecommunication service provider." (As read)
LISTNUM 1 \l 1901 MS LAWSON: I think that's very clear.
LISTNUM 1 \l 1902 THE CHAIRPERSON: Okay. And you say that:
"CCTS performance report for the five last months is proof of this." (As read)
LISTNUM 1 \l 1903 THE CHAIRPERSON: I must confess I haven't read it, but in what way is the report deficient?
LISTNUM 1 \l 1904 MS LAWSON: Well, the report or just the report that you got today from Mr. McKendry. It's not deficient. It's just showing that they are doing an excellent job resolving complaints at the early stages, which is great from an individual complaint resolution perspective, but because of the rules that they are applying with respect to confidentiality and publicity we don't see anything.
LISTNUM 1 \l 1905 We have no information about telecommunication service provider complaint statistics.
LISTNUM 1 \l 1906 THE CHAIRPERSON: And lastly, a new name for the agency. I agree, the CCTS is not a very ‑‑
‑‑‑ Laughter / Rires
LISTNUM 1 \l 1907 THE CHAIRPERSON: Have you got any suggestions?
LISTNUM 1 \l 1908 MS LAWSON: Sorry. I wish we did. I think shorter would be good. It seems that telecommunications ombudsman seems to work in Australia and telecom consumer agency is the term that the TPRP has used. I think it needs to be a bit shorter and snappier.
LISTNUM 1 \l 1909 THE CHAIRPERSON: Yes, I also don't like the word "complaint" in there. It gives a negative as if every consumer is a complainant, you know, which may not be the case at all.
LISTNUM 1 \l 1910 MS LAWSON: Well, if I can say, I agree with you. I think a more positive name would be good.
LISTNUM 1 \l 1911 And also, it's not just about individual complaints. Again, if you read the order in council this is about systemic marketplace issues as well.
LISTNUM 1 \l 1912 THE CHAIRPERSON: Okay.
LISTNUM 1 \l 1913 Len.
LISTNUM 1 \l 1914 COMMISSIONER KATZ: Thank you, Mr. Chairman.
LISTNUM 1 \l 1915 Can I take you to page two of your comments where you talk about membership, and I will parallel that with your actual ‑‑ your evidence that you filed on October the 1st, 2007, paragraph 37 and 38 on membership as well?
LISTNUM 1 \l 1916 MS LAWSON: Sure.
LISTNUM 1 \l 1917 COMMISSIONER KATZ: You mention on page two that the order in council states ‑‑ and you have got a quote there ‑‑ that all service providers shall participate and contribute. And then you say the TPRP as well recommended a mandatory model backed up with new CRTC enforcement powers. And then in paragraph 38 of your submission of October 1st you talk about the CRTC using its powers in a section 24 or subsection 67(1)(d) to make membership in the consumer agency mandatory.
LISTNUM 1 \l 1918 This morning we heard from the members about the various scenarios that exist. Have you got any thoughts at all to respond to what they put forward?
LISTNUM 1 \l 1919 MS LAWSON: Yes. My thought first and foremost is we need a legislative amendment here. We really do. I mean, I think that is what it comes down to and I think that the Commission should be working with the Minister to accomplish that. It's been done for unsolicited communications. It's been done for the contribution scheme. It is not an impossible task.
LISTNUM 1 \l 1920 I think that would just clarify everything, give the Commission the jurisdiction and the powers that it needs to do this properly.
LISTNUM 1 \l 1921 COMMISSIONER KATZ: Notwithstanding that and until such time?
LISTNUM 1 \l 1922 MS LAWSON: Until such time I agree in large point with Mr. Grieve, other than on section 32(g). I think that you do have the power under section 32(g). I think we are talking about telecommunication services here and that you certainly would have general powers to make orders of the nature we are talking about under that provision.
LISTNUM 1 \l 1923 But I recognize all of the difficulties, legal and practical, that were discussed this morning. I don't think that makes it impossible. I think you can go ahead the way you have without having direct jurisdiction over re‑sellers to require the carriers to include in their contracts with re‑sellers the same kind of obligations that you are putting on them.
LISTNUM 1 \l 1924 It's interesting that in Australia, again, it's a mandatory model. Somehow they manage there. It would be interesting ‑‑ and I don't have the answer, but it would be interesting to talk with them and find out how they do it. I think it's largely legislatively but from a practical enforcement perspective, again, how do they ‑‑ how do they actually enforce the requirements?
LISTNUM 1 \l 1925 I think ultimately the CRTC needs new powers of enforcement, but I also think that in the interim short of disconnection which we all recognize is unlikely to happen in other than very extreme cases, there probably are a number of other measures that could be taken and maybe we just need to brainstorm a bit about that.
LISTNUM 1 \l 1926 Publicity; maybe the CRTC could even be involved here in warning consumers about, say, bad actors who are not joining or not complying.
LISTNUM 1 \l 1927 You know, until you have got the powers you need ‑‑ we should think about other ways that we can use, you know, market forces and self‑help mechanisms out there to achieve the results we are looking to achieve.
LISTNUM 1 \l 1928 COMMISSIONER KATZ: One of the things that I am not sure if it was Mr. Bibic or Mr. Grieve mentioned this morning, is the hundreds or maybe thousands of small little players that are out there, ISPs and search providers. If the Commission did decide to make membership mandatory, do you think it is an all or nothing proposition or should there or could there be exemptions under certain categories?
LISTNUM 1 \l 1929 MS LAWSON: I think there could be exemptions. I haven't thought that through but I wouldn't say it has to be all or nothing. I think we want this to be as comprehensive as possible.
LISTNUM 1 \l 1930 The optimum situation is that every one, every single small provider involved ‑‑ I think if it's structured so that they only pay on a complaint basis then that should solve the funding problem. But there may be good reason in some cases. There may be good reason for exempting certain carriers or certain situations and I think you should be willing to consider that.
LISTNUM 1 \l 1931 But I think the goal should be as comprehensive as possible.
LISTNUM 1 \l 1932 COMMISSIONER KATZ: Thank you.
LISTNUM 1 \l 1933 COMMISSIONER MORIN: Yes. In your ‑‑ at the end of your oral presentation you are saying that all TSP members must promote the existence of the CCTS on all bill statements. In my mind it's a very important proposition. We had the industry's answer this morning but do you have some examples of this way of doing things through other words?
LISTNUM 1 \l 1934 MS LAWSON: Good question, and I don't have ‑‑ excuse me.
LISTNUM 1 \l 1935 MS LAWSON: Yes, we think that this is done in Australia but we are not sure. My colleague, Mr. Lawford, can probably answer about the Australian approach.
LISTNUM 1 \l 1936 And I'm sorry. We would have to look, and I could certainly undertake to do some research and get back to you on that. No examples are coming to mind at the moment.
LISTNUM 1 \l 1937 But I would, you know, reject the suggestion that you heard this morning that it is simply too expensive to do. I think particularly if it's a standard notification on the bill then that should not be an overly onerous expense for the industry.
LISTNUM 1 \l 1938 COMMISSIONER MORIN: Thank you.
LISTNUM 1 \l 1939 THE CHAIRPERSON: Okay. Well, thank you very much for your contribution.
LISTNUM 1 \l 1940 MS LAWSON: Thank you.
LISTNUM 1 \l 1941 THE CHAIRPERSON: Madam Secretary.
LISTNUM 1 \l 1942 THE SECRETARY: Thank you, Mr. Chairman.
LISTNUM 1 \l 1943 I would just like to indicate for the record there will be a slight change in the order of appearance to accommodate the availability of the next participant.
LISTNUM 1 \l 1944 I would now ask Mr. Ronald Cohen of the Canadian Broadcast Standards Council to come forward to the presentation table.
PRESENTATION / PRÉSENTATION
LISTNUM 1 \l 1945 MR. COHEN: Mr. Chairman, Mr. Vice‑Chairman, Monsieur Conseiller, the CBSC is pleased to have the opportunity to appear before you today to discuss with you the CBSC's complaints resolution process.
LISTNUM 1 \l 1946 With me are our Executive Director, John McNab, and our Director of Policy, Teisha Gaylard.
LISTNUM 1 \l 1947 The present hearing deals with the establishment of an important institution for the public, namely the Commissioner of Complaints for Telecommunication Services, a self regulatory body which, like the CBSC, will be responsive to the express concerns of the public.
LISTNUM 1 \l 1948 The CBSC is pleased to have the opportunity to appear before you for the purpose of outlining its processes in the hope that they may be usefully illustrative to the Commission.
LISTNUM 1 \l 1949 While I expect that there will be many similarities between the CBSC and the CCTS, there may also be divergences which may reflect nothing more than the fact that the CCTS has been created to reflect the needs of the telecommunication services which can be reasonably expected to differ in some respects from those of private broadcasters.
LISTNUM 1 \l 1950 Among the more obvious underlying differences, I believe it is worth observing that the CBSC deals with complaints relating to content rather than to service.
LISTNUM 1 \l 1951 Consequently, one, the CBSC's decisions may take a dissimilar form from those that will ultimately be rendered by the Commissioner.
LISTNUM 1 \l 1952 Two, the Council's findings or conclusions may be of a different nature as there are no pecuniary or compensatory components to CBSC decisions.
LISTNUM 1 \l 1953 And, three, the written reasons for the CBSC's non‑quantifiable determinations may require more time to render.
LISTNUM 1 \l 1954 In any event, it is not our intention to make comments on the CCTS' proposed set‑up or to suggest that the extent to which it may not match that of the CBSC implies any deficiency of planning on their part.
LISTNUM 1 \l 1955 We will talk about the CBSC's experience in the hope it will be relevant and we will be glad to respond to any questions you may have in order to ensure that that is the case.
LISTNUM 1 \l 1956 This is a rather nuts and bolts presentation by the CBSC, bereft, therefore, of colourful or anecdotal components.
LISTNUM 1 \l 1957 So then, with that cautionary note, here is how the Canadian Broadcast Standards Council works.
LISTNUM 1 \l 1958 The CBSC has a Secretariat, adjudicating panels and a national executive which is our Board of Directors. The Secretariat which is based in Ottawa includes the National Chair and the Executive Director. There are also a Director of Policy, a Manager of the CBSC's ethnocultural outreach project and, as presently constituted, a complaints officer.
LISTNUM 1 \l 1959 All complaints from the public, whether sent directly or indirectly to the CBSC, generally via the CRTC, are dealt with in the Ottawa office. In fact, there is no other office, although we do have strong adjudicator representation around the country.
LISTNUM 1 \l 1960 While our personnel are, of course, responsive to the public, in order to inform complainants of our processes on a 24‑7 basis we rely heavily on our fulsome website.
LISTNUM 1 \l 1961 When adjudications are required ‑‑ and I'll say more about that shortly ‑‑ these are undertaken by our adjudicating panels. There are five regional panels and two national panels. Each may include up to six public adjudicators and six industry adjudicators.
LISTNUM 1 \l 1962 When adjudications occur, these are done by an equal number of public and industry adjudicators from the appropriate panel sitting as no fewer than four persons and no more than six, except in the case of national panels when, as National Chair, I sit as a seventh adjudicator.
LISTNUM 1 \l 1963 We have an additional group of up to 16 at large adjudicators who may sit on an ad hoc basis on any panel which is missing an adjudicator for the purposes of a given adjudication.
LISTNUM 1 \l 1964 Each regional panel has a chair and a vice‑chair. Each national panel ‑‑ there are two of those ‑‑ has an industry vice‑chair and two vice‑chairs are also selected from the overall complement of public adjudicators attached to those national panels. All of those chairs and vice‑chairs together with the National Chair make up the CBSC's National Executive.
LISTNUM 1 \l 1965 The CBSC currently administers four industry codes, the CAB Code of Ethics, the CAB Sexual Portrayal Code, the CAB Violence Code and the RTNDA, Radio‑Television News Directors Association of Canada, Association of Electronic Journalists, as it's currently known, Code of Journalistic Ethics.
LISTNUM 1 \l 1966 There are two additional codes currently under consideration by the CRTC one of which, the Journalistic Independence Code, was discussed at some length during the course of the recent diversity of voices hearing. The other is the CAB Equitable Portrayal Code for which public comments sought by the CRTC closed about two weeks ago.
LISTNUM 1 \l 1967 If and when approved, the latter code will replace the sexual portrayal code.
LISTNUM 1 \l 1968 The Council also ensures compliance with the membership obligations and standards which are set out in the CBSC manual.
LISTNUM 1 \l 1969 The CBSC publishes an annual report which outlines its activities in the past year, discusses its decisions, describes its ethnocultural outreach activities, summarizes the complaints statistics, identifies its own members ‑‑ broadcast members and adjudicators and anticipates some of the activities and trends it will engage in or encounter in the coming year.
LISTNUM 1 \l 1970 The CBSC applies the above‑mentioned codes and membership obligations and standards to its 625 members, which include conventional radio and television licensees, satellite radio services and specialty service television stations ‑‑ television services.
LISTNUM 1 \l 1971 Membership is entirely voluntary and while we have the great majority of private broadcaster licensees, the CBSC certainly does not have every last one of them.
LISTNUM 1 \l 1972 The CBSC's funding derives from the Canadian Association of Broadcasters on behalf of the CAB's members and directly from those few licensees which are members of the CBSC and not members of the CAB.
LISTNUM 1 \l 1973 The CBSC also has derived funding from significant benefits associated with private broadcaster transactions.
LISTNUM 1 \l 1974 In every material sense the CBSC operates at arms' length, that is to say independently from its broadcaster members. The reality is that the CAB and the CBSC's private broadcaster members make it a point to remain scrupulously distant from the entire adjudication process. Indeed the statistics mentioned at the diversity of voices hearing which you will remember make it very clear that about 75 per cent of the formal panel decisions go against broadcasters.
LISTNUM 1 \l 1975 As a matter of procedure, once the broadcaster has filed all of its responses and any supplementary documents, it has nothing more to do with the file. The next the station learns of the result is when it and the complainant receive the decision text the day before it is released to the general public.
LISTNUM 1 \l 1976 Anyone is entitled to file a complaint, provided he or she has heard or seen the actual broadcast about which the complaint is made. In other words, the CBSC does not consider that persons who have, for example, read a newspaper account of or heard a news broadcast about some allegedly offensive broadcast matter are eligible to file a complaint.
LISTNUM 1 \l 1977 Complaints must be submitted in writing. This encourages complainants to focus their concerns and facilitates the broadcaster's duty to respond to the complaint. Exceptions to this in writing principle are naturally made in circumstances in which the complainant is unable to do so on account of some disability.
LISTNUM 1 \l 1978 To be eligible, a complaint must be code relevant and specific. It must, in other words, identify the broadcaster and refer to a precise enough date and time that will enable the broadcaster and the CBSC to identify the challenged program.
LISTNUM 1 \l 1979 The complaint must also be addressed by a CBSC code. Thus, for example, a complaint about the clothes worn by the news anchor will not generally be addressed by the Council, although a complaint about a news anchor not wearing any clothes might well be.
LISTNUM 1 \l 1980 In the event that the complaint indicates that litigation or any other form of legal redress is contemplated by the complainant, or indeed by someone else with respect to that very broadcast, the CBSC will not deal with the file.
LISTNUM 1 \l 1981 Time demands are such that the council prefers to let forum shoppers not cut into scarce CBSC resources required for those committed to complaint resolution via the self‑regulatory process.
LISTNUM 1 \l 1982 The CBSC has a very active ethno‑cultural outreach program, and details about the CBSC and its codes and processes are provided either in hard copy brochures or on our website in 42 languages, in addition to English and French.
LISTNUM 1 \l 1983 Accordingly, complaints may be submitted to the CBSC in any language, although the council will respond in one of the two official languages. That said, when a decision is rendered about a third language program, the CBSC issues its press release in, of course, French and English, but also in the language in which the program was originally broadcast.
LISTNUM 1 \l 1984 The CBSC will shortly be publishing its codes in alternative formats, although only on the basis of Canada's official languages.
LISTNUM 1 \l 1985 The CBSC provides a toll‑free number to potential complainants. It also takes calls from members of the public in order to explain its processes and codes. As a matter of practice, the identity of complainants is not disclosed in CBSC decisions unless the complainant is an organization or an individual whose identity may be material to the filing of the complaint.
LISTNUM 1 \l 1986 Every piece of correspondence submitted to the council receives a response from the CBSC, which takes the opportunity, even when a complaint does not concern a CBSC code or member, to tell the writer about the Canadian Broadcast Standards Council and its processes. It is part of the CBCS's education mandate as anticipated in Public Notice CRTC‑1991‑90.
LISTNUM 1 \l 1987 Moreover, every incoming piece of correspondence that identifies a broadcaster is actually forwarded to that broadcaster, even though not all of them may be characterized as eligible complaints. Of these pieces of correspondence, the broadcaster is obliged to respond to every eligible complaint within 21 days. The broadcaster, in effect, provides its side of the story to the complainant, who advises within 14 days thereafter by the submission of a ruling request or equivalent document whether he or she wishes a CBSC panel to adjudicate the file.
LISTNUM 1 \l 1988 No reason or justification for this request by the complainant need be given. The process is user friendly, indeed dead simple.
LISTNUM 1 \l 1989 Nor does the CBSC require rigorous adherence to the deadlines I have just mentioned, but the failure of a broadcaster to respond at all after a reasonable lapse of time will result in a finding of breach against the station or service. It is only after the receipt of a ruling request that the CBSC's Director of Policy reviews the complaint and calls in recordings of the challenged program to determine if the file should be sent to a panel for an adjudication and a formal decision. In the event that the issue is one that, on the basis of the CBSC's jurisprudence would clearly be resolved in favour of the broadcaster, it will be dealt with by the CBSC's summary decision procedure. In such a case, a detailed letter from the national chair generally of four or five pages providing reasons and replete with jurisprudential references will be sent to the complainant.
LISTNUM 1 \l 1990 All CBSC formal decisions are released to the public and posted on the CBSC website. The drafting of decisions is generally not any simpler or more mathematical or predictable than the complex subjects treated. They are, of course, presented with written reason, which are meant to serve as precedents or guidelines for future decisions on content matters.
LISTNUM 1 \l 1991 The CBSC's goal, nonetheless, is to adjudicate, draft and release all formal decisions within six months of the date of the ruling request that triggers the council's investigative involvement in the first place.
LISTNUM 1 \l 1992 In the event of a decision upholding the complaint, the broadcaster is required to air a CBSC‑worded announcement of the decision result on two occasions.
LISTNUM 1 \l 1993 In the case of radio, once during the time period when the challenged broadcast was first aired and once during peak listening hours.