On February 15, 2012, an $18,000 “administrative monetary penalty” or “AMP” was imposed by the CRTC on a British Columbia telemarketing company, Imperial Data Supply Corp. (“Imperial”).
The Commission found that six telemarketing calls were made to consumers that were (or should) have been on Imperial’s internal do not call list, violating the Unsolicited Telecommunications Rules, and that six fax telemarketing calls were made without being registered with the Do Not Call List.
The CRTC has the legislative authority to impose AMPs on any telemarketer that violates the Unsolicited Telecommunications Rules. The maximum penalty for a violation is $1,500 (for individuals) and $15,000 (for corporations). Violations that continue for more than a day are separate violations.
In making the decision, the Commission also considered whether Imperial had established a due diligence defense (subsection 72.1(1) of the Telecommunications Act provides a defense for a person in a proceeding relating to a violation to show that they exercised due diligence to prevent the violation) and whether the amount of the AMP imposed was reasonable.
In rejecting Imperial’s due diligence defense, the CRTC found that while it made submissions regarding the occurrence of periodic errors, and took the position that they were not systematic, it had failed to submit any evidence of reasonable steps or business practices to prevent the violations. The CRTC also pointed to notifications by Commission staff for Imperial to renew its registration and its continuation to make telemarketing calls after the expiration of its registration.
With respect to the amount of the AMP, the CRTC noted that the financial health of a company is not a relevant factor in determining whether to impose (or reduce) a penalty and refused to reduce the AMP imposed in this case. The Commission pointed to, among other things, evidence of notifications of Imperial’s obligations to maintain an internal do not call list under the Unsolicited Telecommunications Rules and its failure to do so.
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Carswell has recently published a new book on Canadian defamation law, entitled Canadian Defamation Law and Practice (authors: R. Pepper, R. Stephenson, D. Morritt, J. Ross).
From Carswell:
“This book is designed to provide an overview of the Canadian law of defamation and a practice guide for lawyers advising on defamation issues or engaged in prosecuting or defending defamation actions. It will also assist in-house counsel in recognizing areas of concern and help editors and others involved in the communications, advertising and media fields avoid publishing defamatory material. It is an extremely practical guide to the area providing an overview of the law, practice tips and precedents. Topics covered include: the plaintiff and defendant, defences, remedies, defamation and the internet, defamation and the charter, and more.”
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For more information about our regulatory law services contact: contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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February 19, 2012
In December 2010 Canada’s new anti-spam legislation was passed (the “Anti-spam Act”) which will, when it comes into force, be one of the strictest anti-spam regimes in the world (see: Anti-spam Act). Canada had been criticized prior to its passage as being the only G8 nation without stand-alone anti-spam legislation. In general, the Anti-spam Act will require express or implied consent for the sending of “commercial electronic messages” and will also impose certain form (i.e., disclosure) and opt-out (i.e., unsubscribe) requirements.
My colleague Joel Hill has written a rather good series of defamation notes. This is the most recent installment in that series (see below for links to the earlier posts):
Wilson v. Switlo is a recent decision of the B.C. Supreme Court addressing a great many aspects of the law relating to defamation. This post is the fifth in a series reviewing the claims, defenses, and issues raised in this important, interesting and wide-ranging decision.
As we saw in an earlier post in this series, to succeed in a claim of defamation, the party bringing the lawsuit needs to prove, among other things, that the allegedly defamatory words referred to the plaintiff, and not someone else.
In Wilson, some of the letters that the plaintiffs said were defamatory did not specifically name all the plaintiffs.
The Court importantly observed that a defamatory publication can refer to someone even if they are not individually named, citing the earlier British Columbia Supreme Court decision Manno v. Henry, 2008 BCSC 738.
Carswell and Canada Law Book have recently published several interesting competition/antitrust related books including:
Corporate Counsel’s Guide to Strategic Alliances
“This book provides the information you’ll need for structuring and analyzing deals regarding strategic alliances. Subjects covered include business valuation, intellectual property aspects, contractual considerations, distribution and manufacturing considerations, the impact of antitrust and competition laws, regulation of the sale of goods, inbound technology transfers and investment law, investment considerations, law of business organizations, acquisition issues, formation of the joint venture, managing and operating the joint venture, termination, merger agreements, and alternative dispute Resolution. Authored by expert practitioner currently serving as in-house counsel to international computer hardware and software distributor. Covers all aspects of strategic alliances, including collaborative forms, negotiation topics/strategies and domestic and foreign laws and regulations. Forms available in text format on CD-ROM for easy downloading and customizing. Forms volume with due diligence checklists/questionnaires, letters of intent, agreements covering common forms of alliances, etc. Time savings-one-stop resource for practitioners with clients interested in foreign and/or domestic strategic alliances.”
The CBC reported last week that a Montreal-based telemarketing company, which has been accused of defrauding thousands of small businesses in relation to an alleged invoice scheme for never ordered office supplies, is still making calls (see: Montreal Telemarketers in Fraud Case Still Making Calls).
According to the CBC:
“Express Transaction Services Inc. (ETS) and some affiliated companies face several charges under the federal Competition Act and Criminal Code, following an investigation and police raids at its Montreal facilities in 2007.
In fall 2011, the company was charged with fraud and violation under the federal Competition Act.
Several individuals linked to the companies also face charges of deceptive telemarketing and misleading representations under the Competition Act, and criminal fraud charges.
The Competition Bureau said ETS purposely sent out products to businesses even if they were never ordered. ETS then had its call centre make repeated phone calls to retrieve payment.
According to the bureau, the scheme made more than $170 million between 2001 and 2007. The federal Anti-Fraud Centre said thousands of victims were affected.
CBC News has learned that ETS continues to operate out of its Montreal offices, and small businesses across Canada are still receiving phone calls from the company.”
TELEMARKETING LAWS IN CANADA
COMPETITION ACT
The federal Competition Act makes it criminal offences to engage in deceptive telemarketing or to engage in telemarketing unless certain disclosure under the Competition Act is made.
Canada’s contribution to the 11th OECD Global Forum on Competition, held last week in Paris, is now available online: Improving International Co-operation in Cartel Investigations – Global Forum on Competition – Contribution from Canada
Overview
The Global Forum on Competition included discussions on:
Commodities and price volatility:
“This full day session will start with an overview of recent price volatility; discuss its causes and present recent OECD work. Substantive discussions will draw on expert analysis and on the experiences of competition authorities. The day will culminate in a distillation of practical suggestions for competition authorities when faced with issues in these markets.”
Improving international co-operation in cartel investigations:
“This session will examine how the existing frameworks for international cooperation in cartel investigations could be modified or improved. The roundtable will also explore how international co-operation works in other fields, such as bribery, tax and money laundering, to see if any practices can be extrapolated to cartel enforcement.”
State-owned enterprises and competitive neutrality:
“This session will allow participants to hear the preliminary findings of the Report on Competitive Neutrality which is under preparation by the OECD as well as to present country experiences with competitive distortions resulting from an uneven playing field in markets where public undertakings co-exist with private competitors.”
Speeches included remarks by Pascal Lamy (WTO Director General), Otaviano Canuto (World Bank Vice-President), Angel Gurria (OECD Secretary-General) and Frederic Jenny (Chairman of the OECD Competition Committee).
On February 17, 2012, the Competition Bureau announced that Construction G.T.R.L. (1990) Inc., Acoustique JCG Inc. and Enterprises de Construction OPC Inc. have pleaded guilty to bid-rigging in Quebec Superior Court relating to the expansion of the Chicoutimi Hospital in 2003 (see: Quebec Construction Companies Plead Guilty to Rigging Bids for the Chicoutimi Hospital).
In making the announcement, the Bureau said:
“The court ordered Construction G.T.R.L. to pay a fine of $50,000, and Acoustique JCG and Entreprises de Construction OPC to pay a fine of $25,000 each. The companies are subject to a court order for a period of 10 years.
‘Bid-rigging harms everyone but the criminals who cheat the system for their own financial gain,’ said Melanie Aitken, Commissioner of Competition. ‘In this case, the bid-rigging scheme ultimately harmed the Chicoutimi Hospital and Saguenay residents, by preventing the hospital from obtaining a competitive price for its renovation.’
The Bureau announced in November 2008 that three construction companies, and certain of their executives, were charged with rigging bids submitted for the expansion and refitting of the emergency room at the Chicoutimi Hospital in 2003. The Bureau’s investigation found that the parties entered into an agreement to pre-determine the winner of the contract.
The parties have now pleaded guilty for rigging bids for the Chicoutimi Hospital contract.”
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
