Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
This Act may be cited as the Telecommunications Act.
General
Interpretation
In this Act,
broadcasting undertaking has the same meaning as in subsection 2(1) of the Broadcasting Act; (entreprise de radiodiffusion)
Canadian carrier means a telecommunications common carrier that is subject to the legislative authority of Parliament; (entreprise canadienne)
Canadian telecommunications policy objectives means the objectives set out in section 7; (Version anglaise seulement)
charge includes to receive in payment; (Version anglaise seulement)
Commission means the Canadian Radio-television and Telecommunications Commission; (Conseil)
control means control in any manner that results in control in fact, whether directly through the ownership of securities or indirectly through a trust, agreement or arrangement, the ownership of any body corporate or otherwise; (contrôle)
decision includes a determination made by the Commission in any form; (décision)
exempt transmission apparatus means any apparatus whose functions are limited to one or more of the following:
the switching of telecommunications,
the input, capture, storage, organization, modification, retrieval, output or other processing of intelligence, or
control of the speed, code, protocol, content, format, routing or similar aspects of the transmission of intelligence; (appareil de transmission exclu)
intelligence means signs, signals, writing, images, sounds or intelligence of any nature; (information)
international submarine cable means a submarine telecommunications line that extends between Canada and any place outside Canada, or between places outside Canada through Canada, other than a line situated entirely under fresh water; (câble sous-marin international)
international submarine cable licence means a licence issued under section 19; (licence de câble sous-marin international)
Minister means the Minister of Industry; (ministre)
person includes any individual, partnership, body corporate, unincorporated organization, government, government agency and any other person or entity that acts in the name of or for the benefit of another, including a trustee, executor, administrator, liquidator of the succession, guardian, curator or tutor; (personne)
prescribed means prescribed by regulation; (Version anglaise seulement)
public authority includes Her Majesty in right of Canada or a province; (administration publique)
rate means an amount of money or other consideration and includes zero consideration; (tarif)
special Act means an Act of Parliament respecting the operations of a particular Canadian carrier; (loi spéciale)
telecommunications means the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system; (télécommunication)
telecommunications common carrier means a person who owns or operates a transmission facility used by that person or another person to provide telecommunications services to the public for compensation; (entreprise de télécommunication)
telecommunications facility means any facility, apparatus or other thing that is used or is capable of being used for telecommunications or for any operation directly connected with telecommunications, and includes a transmission facility; (installation de télécommunication)
telecommunications service means a service provided by means of telecommunications facilities and includes the provision in whole or in part of telecommunications facilities and any related equipment, whether by sale, lease or otherwise; (service de télécommunication)
telecommunications service provider means a person who provides basic telecommunications services, including by exempt transmission apparatus; (fournisseur de services de télécommunication)
transmission facility means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system, for the transmission of intelligence between network termination points, but does not include any exempt transmission apparatus. (installation de transmission)
The Commission may define the expression network termination point for purposes of the definition transmission facility in subsection (1).
Her Majesty
This Act is binding on Her Majesty in right of Canada or a province.
Application
This Act does not apply in respect of broadcasting by a broadcasting undertaking.
A trustee, trustee in bankruptcy, receiver, sequestrator, manager, administrator of the property of another or any other person who, under the authority of any court, or any legal instrument or act, operates any transmission facility of a Canadian carrier is subject to this Act.
The provisions of this Act prevail over the provisions of any special Act to the extent that they are inconsistent.
Canadian Telecommunications Policy
It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives
to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;
to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;
to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;
to promote the ownership and control of Canadian carriers by Canadians;
to promote the use of Canadian transmission facilities for telecommunications within Canada and between Canada and points outside Canada;
to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;
to stimulate research and development in Canada in the field of telecommunications and to encourage innovation in the provision of telecommunications services;
to respond to the economic and social requirements of users of telecommunications services; and
to contribute to the protection of the privacy of persons.
Powers of Governor in Council, Commission and Minister
The Governor in Council may, by order, issue to the Commission directions of general application on broad policy matters with respect to the Canadian telecommunications policy objectives.
The Commission may, by order, exempt any class of Canadian carriers from the application of this Act, subject to any conditions contained in the order, where the Commission, after holding a public hearing in relation to the exemption, is satisfied that the exemption is consistent with the Canadian telecommunications policy objectives.
The Commission may, on application by any interested person or on its own motion, inquire into and determine whether any condition of an exemption order has been complied with.
The decision of the Commission that a person is or is not an interested person is binding and conclusive.
The Minister shall have an order proposed to be made under section 8 published in the Canada Gazette and laid before each House of Parliament, and a reasonable opportunity shall be given to interested persons to make representations to the Minister with respect to the proposed order.
The Minister shall consult the Commission with respect to an order proposed to be made under section 8 before it is published or laid under this section and shall consult the Commission again with respect to the order in its definitive form before it is made.
The Commission shall send to the Minister an order proposed to be made under section 9 and the Minister shall have the order laid before each House of Parliament.
A proposed order laid before a House of Parliament stands referred to such committee as is designated by order of that House to receive such orders.
A proposed order that is modified after publication need not be published again under subsection (1).
After the fortieth sitting day of Parliament following the first day on which a proposed order has been laid before both Houses, the Governor in Council or the Commission, as the case may be, may make the order either as proposed or with any modifications the Governor in Council or the Commission considers advisable.
After an order is made under section 8, the Minister shall have it laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the order is made.
After an order is made under section 9, the Commission shall immediately send it to the Minister who shall have it laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the order is sent.
For the purposes of this section, a sitting day is a day on which either House of Parliament is sitting.
An order made under section 8 is binding on the Commission beginning on the day on which the order comes into force.
Subject to subsection (3), an order made under section 8 shall, if it so provides, apply in respect of matters pending before the Commission on the day on which the order comes into force.
An order made under section 8 does not apply in respect of a matter pending before the Commission on the day on which the order comes into force if
final submissions have been filed in respect of that matter; and
less than one year has expired since the period for filing final submissions ended.
Within one year after a decision by the Commission, the Governor in Council may, on petition in writing presented to the Governor in Council within ninety days after the decision, or on the Governor in Council’s own motion, by order, vary or rescind the decision or refer it back to the Commission for reconsideration of all or a portion of it.
A person who presents a petition to the Governor in Council shall, at the same time, send a copy of the petition to the Commission.
On receipt of a petition, the Commission shall send a copy of it to each person who made any oral representation to the Commission in relation to the decision that is the subject of the petition.
On receipt of a petition, the Minister shall publish in the Canada Gazette a notice of its receipt indicating where the petition and any petition or submission made in response to it may be inspected and copies of them obtained.
An order made under subsection (1) that refers a decision back to the Commission for reconsideration and hearing
shall set out the details of any matter that the Governor in Council considers to be material to the reconsideration; and
may specify a date before which the Commission shall complete its reconsideration.
The Commission shall, before any date specified under paragraph (5)(b), reconsider a decision referred back to it under subsection (1) and may confirm, vary or rescind the decision.
Where the Commission confirms or varies a decision under subsection (6) or does not complete its reconsideration of the decision before any date specified under paragraph (5)(b), the Governor in Council may, by order, vary or rescind the decision within ninety days after the confirmation or variation of the decision or the specified date, as the case may be.
In an order made under subsection (1) or (7), the Governor in Council shall set out the reasons for making the order.
The Minister, before making a recommendation to the Governor in Council for the purposes of any order under section 8 or 12, or before making any order under section 15, shall notify a minister designated by the government of each province of the Minister’s intention to make the recommendation or the order and shall provide an opportunity for each of them to consult with the Minister.
The Governor in Council may require the Commission to make a report on any matter within the Commission’s jurisdiction under this Act or any special Act.
The Minister may, where the Minister is satisfied that to do so will further the Canadian telecommunications policy objectives, by order made after consultation with the Commission, establish standards in respect of the technical aspects of telecommunications and require the Commission to give effect to them.
An order that incorporates a standard by reference may incorporate it as amended from time to time.
Any order proposed to be made under this section shall be published in the Canada Gazette at least sixty days before its proposed effective date, and a reasonable opportunity shall be given to interested persons to make representations to the Minister with respect to the proposed order.
A proposed order that is modified after publication need not be published again under subsection (3).
Eligibility to Operate
Canadian Ownership and Control
The following definitions apply in this section.
entity means a corporation, partnership, trust or joint venture. (entité)
joint venture means an association of two or more entities, if the relationship among those associated entities does not, under the laws in Canada, constitute a corporation, a partnership or a trust and if all the undivided ownership interests in the assets of the Canadian carrier or in the voting interests of the Canadian carrier are or will be owned by all the entities that are so associated. (coentreprise)
voting interest, with respect to
a corporation with share capital, means a voting share;
a corporation without share capital, means an ownership interest in the assets of the corporation that entitles the owner to rights similar to those enjoyed by the owner of a voting share; and
a partnership, trust or joint venture, means an ownership interest in the assets of the partnership, trust or joint venture that entitles the owner to receive a share of the profits and to share in the assets on dissolution. (intérêt avec droit de vote)
A Canadian carrier is eligible to operate as a telecommunications common carrier if
it is an entity incorporated, organized or continued under the laws of Canada or a province and is Canadian-owned and controlled;
it owns or operates only a transmission facility that is referred to in subsection (5); or
it has annual revenues from the provision of telecommunications services in Canada that represent less than 10% of the total annual revenues, as determined by the Commission, from the provision of telecommunications services in Canada.
For the purposes of paragraph (2)(a), an entity is Canadian-owned and controlled if
in the case of a corporation, not less than 80% of the members of the board of directors are individual Canadians;
Canadians beneficially own, directly or indirectly, in the aggregate and otherwise than by way of security only, not less than 80% of the entity’s voting interests; and
the entity is not otherwise controlled by persons that are not Canadians.
No Canadian carrier shall operate as a telecommunications common carrier unless it is eligible under this section to operate as such.
Paragraph (2)(a) and subsection (4) do not apply in respect of the ownership or operation of
international submarine cables;
earth stations that provide telecommunications services by means of satellites; or
satellites.
A Canadian carrier that is eligible to operate under paragraph (2)(c) remains eligible to operate even if it has annual revenues from the provision of telecommunications services in Canada that represent 10% or more of the total annual revenues from the provision of telecommunications services in Canada as long as the increase in its annual revenues from the provision of telecommunications services in Canada to 10% or more of the total annual revenues from the provision of telecommunications services in Canada did not result from the acquisition of control of another Canadian carrier or from the acquisition of assets used by another Canadian carrier to provide telecommunications services.
A Canadian carrier to which subsection (6) applies is not authorized to acquire control of a Canadian carrier or acquire assets used by another Canadian carrier to provide telecommunications services.
A Canadian carrier that is eligible to operate under paragraph (2)(c) shall notify the Commission when it acquires control of another Canadian carrier or acquires assets used by another Canadian carrier to provide telecommunications services.
For the purposes of determining annual revenues from the provision of telecommunications services in Canada under this section, the annual revenues of a Canadian carrier include the annual revenues from the provision of telecommunications services in Canada of its affiliates as defined in subsection 35(3).
International Telecommunications Services Licences
No telecommunications service provider that is of a class specified by the Commission shall provide international telecommunications services except in accordance with an international telecommunications service licence.
No telecommunications service provider shall, except in accordance with an international telecommunications service licence, provide international telecommunications services that are within a class of telecommunications services specified by the Commission.
An application for the issuance, renewal or amendment of an international telecommunications service licence must be made in the form and manner and with the information specified by the Commission, and be accompanied by the fee prescribed under subsection 68(1).
The Commission may, on application, issue an international telecommunications service licence.
The Commission may, in respect of international telecommunications services,
establish licence conditions in respect of classes of telecommunications service providers or classes of international telecommunications services; and
include in a licence conditions that are related to the circumstances of the licensee and that the Commission considers appropriate.
The Commission may, on application by any interested person or on its own motion, amend any conditions of a licence.
The term of a licence may not exceed ten years on its issuance or renewal.
A licence may be renewed on application by the licensee.
A licence is not transferable except with the consent of the Commission.
The Commission may suspend or revoke an international telecommunications service licence whenever the Commission believes on reasonable grounds that the licensee has contravened this Act, the regulations or any condition of the licence, but the licensee must first be given notice in writing of the reasons for the suspension or revocation and a reasonable opportunity to make representations to the Commission.
The Commission may suspend or revoke a licence with the consent of, or on application by, the licensee.
International Submarine Cable Licences
No person shall construct or operate an international submarine cable or construct or operate any works or facilities for the purpose of operating an international submarine cable except in accordance with an international submarine cable licence that has been issued to the person and that the person remains eligible under the regulations to hold.
An application for the issuance, renewal or amendment of an international submarine cable licence must be made in the prescribed form and manner and be accompanied by the prescribed information and the prescribed fee or a fee calculated in the prescribed manner.
The Minister may, on application, issue an international submarine cable licence to a person who is eligible under the regulations to hold the licence.
An international submarine cable licence may contain such conditions as the Minister considers are consistent with the Canadian telecommunications policy objectives.
The term of an international submarine cable licence may not exceed ten years on issuance of the licence or on renewal.
An international submarine cable licence may be amended or renewed on application by the licensee, but a licence is not transferable except with the consent of the Minister.
The Minister may suspend or revoke an international submarine cable licence whenever the Minister believes on reasonable grounds that the licensee has ceased to be eligible under the regulations or has contravened this Act, the regulations or any condition of the licence but the licensee must first be given notice in writing of the reasons for the suspension or revocation and a reasonable opportunity to make representations to the Minister.
The Minister may suspend or revoke an international submarine cable licence on application made by or with the consent of the licensee.
Documentary Evidence
The Minister may require the furnishing of an affidavit or a solemn declaration attesting to the authenticity of any document provided under this Part or the regulations, or to the truth of any fact stated in any such document or in any application submitted under this Part.
Regulations
The Governor in Council may, in relation to Canadian carriers’ eligibility under section 16 to operate as telecommunications common carriers, make regulations
respecting information that is to be provided, the persons by whom and to whom it is to be provided, the manner in which and the time within which it is to be provided and the consequences of failing to provide it;
respecting the circumstances and the manner in which a Canadian carrier, in order to maintain its eligibility, may control the acquisition and ownership of its voting shares, restrict, suspend or refuse to recognize ownership rights in respect of those shares and require holders of those shares to dispose of them;
authorizing the board of directors of a Canadian carrier to pay a dividend or to make any other distribution with respect to voting shares that would otherwise be prohibited because the shares were held in contravention of section 16 or any regulations made under this subsection where, in the board’s opinion, the contravention was inadvertent or of a technical nature or it would be otherwise inequitable not to pay the dividend or make the distribution;
respecting the circumstances and the manner in which a Canadian carrier may restrict voting rights attached to shares, or suspend or void the exercise of those rights, in order to maintain its eligibility;
respecting the circumstances and the manner in which a Canadian carrier may
sell, redeem or purchase shares held contrary to section 16 or any regulations made under this subsection, and
deal with the proceeds of sale and reimburse any purchasers of the shares in good faith;
respecting the powers of a Canadian carrier to require disclosure of the beneficial ownership of its shares, the right of the carrier and its directors, officers and employees, and its agents or mandataries, to rely on any required disclosure and the effects of their reliance;
respecting the verification by the Commission of a Canadian carrier’s eligibility, the measures the Commission may take to maintain the carrier’s eligibility, including exercising the powers of the carrier’s board of directors and countermanding its decisions, and the circumstances and manner in which the Commission may take those measures;
respecting the circumstances and manner in which the Commission and its members, officers or employees, or its agents or mandataries, or a Canadian carrier and its directors, officers and employees, and its agents or mandataries, may be protected from liability for actions taken by them in order to maintain the carrier’s eligibility;
defining the words successor and Canadian for the purposes of section 16; and
prescribing anything that is to be prescribed and generally for carrying out the purposes and provisions of section 16 and this subsection.
The Governor in Council may, in relation to international submarine cable licences, make regulations
prescribing the procedure governing applications for licences, including the form of applications, the information to accompany them and the manner of filing, processing and disposing of them;
respecting the form of licences and the information they must include and requiring licensees to publish or otherwise make them available for public inspection;
prescribing classes of international submarine cable licences and determining the persons eligible to hold licences of any particular class;
prescribing fees, or the manner of calculating fees, in respect of licences and prescribing the manner in which the fees are to be paid; and
generally for carrying out the purposes and provisions of sections 17 to 20.
Fees required to be paid under this Part constitute a debt due to Her Majesty in right of Canada and may be recovered in a court of competent jurisdiction.
Any regulations proposed to be made under this section shall be published in the Canada Gazette at least sixty days before their proposed effective date, and a reasonable opportunity shall be given to interested persons to make representations to the Minister with respect to the proposed regulations.
Proposed regulations that are modified after publication need not be published again under subsection (4).
Rates, Facilities and Services
Provision of Services
For the purposes of this Part and Part IV, telecommunications service has the same meaning as in section 2 and includes any service that is incidental to the business of providing telecommunications services.
The offering and provision of any telecommunications service by a Canadian carrier are subject to any conditions imposed by the Commission or included in a tariff approved by the Commission.
The offering and provision of any telecommunications service by any person other than a Canadian carrier are subject to any conditions imposed by the Commission, including those relating to
service terms and conditions in contracts with users of telecommunications services;
protection of the privacy of those users;
access to emergency services; and
access to telecommunications services by persons with disabilities.
No Canadian carrier shall provide a telecommunications service except in accordance with a tariff filed with and approved by the Commission that specifies the rate or the maximum or minimum rate, or both, to be charged for the service.
A joint tariff agreed on by two or more Canadian carriers may be filed by any of the carriers with an attestation of the agreement of the other carriers.
A tariff shall be filed and published or otherwise made available for public inspection by a Canadian carrier in the form and manner specified by the Commission and shall include any information required by the Commission to be included.
Notwithstanding subsection (1), the Commission may ratify the charging of a rate by a Canadian carrier otherwise than in accordance with a tariff approved by the Commission if the Commission is satisfied that the rate
was charged because of an error or other circumstance that warrants the ratification; or
was imposed in conformity with the laws of a province before the operations of the carrier were regulated under any Act of Parliament.
Within forty-five business days after a tariff is filed by a Canadian carrier, the Commission shall
approve the tariff, with or without amendments, or substitute or require the carrier to substitute another tariff for it;
disallow the tariff; or
make public written reasons why the Commission has not acted under paragraph (a) or (b) and specify the period of time within which the Commission intends to do so.
Every rate charged by a Canadian carrier for a telecommunications service shall be just and reasonable.
No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.
The Commission may determine in any case, as a question of fact, whether a Canadian carrier has complied with this section or section 25 or 29, or with any decision made under section 24, 25, 29, 34 or 40.
The burden of establishing before the Commission that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the Canadian carrier that discriminates, gives the preference or subjects the person to the disadvantage.
In determining whether a rate is just and reasonable, the Commission may adopt any method or technique that it considers appropriate, whether based on a carrier’s return on its rate base or otherwise.
Notwithstanding subsections (1) and (2), a Canadian carrier may provide telecommunications services at no charge or at a reduced rate
to the carrier’s directors, officers, employees or former employees; or
with the approval of the Commission, to any charitable organization or disadvantaged person or other person.
Roaming
[Repealed, 2014, c. 20, s. 240]
Any person who provides telecommunications services shall not charge a subscriber for providing the subscriber with a paper bill.
The Commission shall have regard to the broadcasting policy for Canada set out in subsection 3(1) of the Broadcasting Act in determining whether any discrimination is unjust or any preference or disadvantage is undue or unreasonable in relation to any transmission of programs, as defined in subsection 2(1) of that Act, that is primarily direct to the public and made
by satellite; or
through the terrestrial distribution facilities of a Canadian carrier, whether alone or in conjunction with facilities owned by a broadcasting undertaking.
Where a person who carries on a broadcasting undertaking does not agree with a Canadian carrier with respect to the allocation of satellite capacity for the transmission by the carrier of programs, as defined in subsection 2(1) of the Broadcasting Act, the Commission may allocate satellite capacity to particular broadcasting undertakings if it is satisfied that the allocation will further the implementation of the broadcasting policy for Canada set out in subsection 3(1) of that Act.
Before the Commission exercises its power under subsection (2), it shall take into account the carrier’s role as a telecommunications common carrier and any operational constraints identified by the carrier.
No Canadian carrier shall, without the prior approval of the Commission, give effect to any agreement or arrangement, whether oral or written, with another telecommunications common carrier respecting
the interchange of telecommunications by means of their telecommunications facilities;
the management or operation of either or both of their facilities or any other facilities with which either or both are connected; or
the apportionment of rates or revenues between the carriers.
In default of payment, a rate charged by a Canadian carrier in accordance with this Act for a telecommunications service constitutes a debt due to the carrier and may be recovered in a court of competent jurisdiction.
No limitation of a Canadian carrier’s liability in respect of a telecommunications service is effective unless it has been authorized or prescribed by the Commission.
The Commission may, for the purposes of this Part,
approve the establishment of classes of telecommunications services and permit different rates to be charged for different classes of service;
determine standards in respect of the technical aspects of telecommunications applicable to telecommunications facilities operated by or connected to those of a Canadian carrier;
amend any tariff filed under section 25 or any agreement or arrangement submitted for approval under section 29;
suspend or disallow any portion of a tariff, agreement or arrangement that is in its opinion inconsistent with this Part;
substitute or require the Canadian carrier to substitute other provisions for those disallowed;
require the Canadian carrier to file another tariff, agreement or arrangement, or another portion of it, in substitution for a suspended or disallowed tariff, agreement, arrangement or portion; and
in the absence of any applicable provision in this Part, determine any matter and make any order relating to the rates, tariffs or telecommunications services of Canadian carriers.
Where a Canadian carrier provides a basic telecommunications service and, in the opinion of the Commission,
an activity of an affiliate of the carrier is integral to the provision of the service by the carrier, and
the Commission’s other powers under this Act are not sufficient for the purpose of ensuring that the rates charged by the carrier for telecommunications services are just and reasonable,
the Commission may, for that purpose, treat some or all of the earnings of the affiliate from the activity as if they were earnings of the carrier.
Forbearance
The Commission may make a determination to refrain, in whole or in part and conditionally or unconditionally, from the exercise of any power or the performance of any duty under sections 24, 25, 27, 29 and 31 in relation to a telecommunications service or class of services provided by a Canadian carrier, where the Commission finds as a question of fact that to refrain would be consistent with the Canadian telecommunications policy objectives.
Where the Commission finds as a question of fact that a telecommunications service or class of services provided by a Canadian carrier is or will be subject to competition sufficient to protect the interests of users, the Commission shall make a determination to refrain, to the extent that it considers appropriate, conditionally or unconditionally, from the exercise of any power or the performance of any duty under sections 24, 25, 27, 29 and 31 in relation to the service or class of services.
The Commission shall not make a determination to refrain under this section in relation to a telecommunications service or class of services if the Commission finds as a question of fact that to refrain would be likely to impair unduly the establishment or continuance of a competitive market for that service or class of services.
The Commission shall declare that sections 24, 25, 27, 29 and 31 do not apply to a Canadian carrier to the extent that those sections are inconsistent with a determination of the Commission under this section.
Order to Provide Services
Where the Commission determines as a question of fact that a telecommunications service or class of services provided by an affiliate of a Canadian carrier is not subject to a degree of competition that is sufficient to ensure just and reasonable rates and prevent unjust discrimination and undue or unreasonable preference or disadvantage, the Commission may require the Canadian carrier to provide the service or class of services in any manner, to any extent and subject to any conditions determined by the Commission, if it is satisfied that it would be an effective and practical means of achieving the purposes of section 27 with respect to the service or class.
Where the Commission determines as a question of fact that a telecommunications service or class of services provided by a Canadian carrier is subject to a degree of competition that is sufficient to ensure just and reasonable rates and prevent unjust discrimination and undue or unreasonable preference or disadvantage, the Commission may require the Canadian carrier to discontinue the service or class of services in the manner, to the extent and subject to the conditions determined by the Commission, if it is satisfied that it would be an effective and practical means of achieving the purposes of section 27 with respect to the service or class.
In subsection (1), affiliate, in relation to a Canadian carrier, means a person who controls the carrier, or who is controlled by the carrier or by any person who controls the carrier.
Content of Messages
Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.
Provision of Information
The Commission may require a Canadian carrier
to adopt any method of identifying the costs of providing telecommunications services and to adopt any accounting method or system of accounts for the purposes of the administration of this Act; or
to submit to the Commission, in periodic reports or in such other form and manner as the Commission specifies, any information that the Commission considers necessary for the administration of this Act or any special Act.
Where the Commission believes that a person other than a Canadian carrier is in possession of information that the Commission considers necessary for the administration of this Act or any special Act, the Commission may require that person to submit the information to the Commission in periodic reports or in such other form and manner as the Commission specifies, unless the information is a confidence of the executive council of a province.
The Commission shall, on request, provide the Minister or the Chief Statistician of Canada with any information submitted to the Commission.
Subject to section 39, the Commission shall make available for public inspection any information submitted to the Commission in the course of proceedings before it.
For the purposes of this section, a person who submits any of the following information to the Commission may designate it as confidential:
information that is a trade secret;
financial, commercial, scientific or technical information that is confidential and that is treated consistently in a confidential manner by the person who submitted it; or
information the disclosure of which could reasonably be expected
to result in material financial loss or gain to any person,
to prejudice the competitive position of any person, or
to affect contractual or other negotiations of any person.
Subject to subsections (4), (5), (5.1) and (6), where a person designates information as confidential and the designation is not withdrawn by that person, no person described in subsection (3) shall knowingly disclose the information, or knowingly allow it to be disclosed, to any other person in any manner that is calculated or likely to make it available for the use of any person who may benefit from the information or use the information to the detriment of any person to whose business or affairs the information relates.
Subsection (2) applies to any person referred to in any of the following paragraphs who comes into possession of designated information while holding the office or employment described in that paragraph, whether or not the person has ceased to hold that office or be so employed:
a member of, or person employed by, the Commission;
in respect of information disclosed under paragraph 4(b) or 5(b), the Commissioner of Competition appointed under the Competition Act or a person whose duties involve the carrying out of that Act and who is referred to in section 25 of that Act;
in respect of information provided under subsection 37(3), the Minister, the Chief Statistician of Canada, an agent of or a person employed in the federal public administration.
If designated information is submitted in the course of proceedings before the Commission, the Commission may
disclose or require its disclosure if it determines, after considering any representations from interested persons, that the disclosure is in the public interest; and
disclose or require its disclosure to the Commissioner of Competition on the Commissioner’s request if it determines that the information is relevant to competition issues being considered in the proceedings.
If designated information is submitted to the Commission otherwise than in the course of proceedings before it, the Commission may
disclose or require its disclosure if, after considering any representations from interested persons, it considers that the information is relevant to the determination of a matter before it and determines that the disclosure is in the public interest; and
disclose or require its disclosure to the Commissioner of Competition on the Commissioner’s request if it considers that the information is relevant to competition issues being raised in the matter before it.
Neither the Commissioner of Competition nor any person whose duties involve the administration and enforcement of the Competition Act and who is referred to in section 25 of that Act shall use information that is disclosed
under paragraph (4)(b) other than to facilitate the Commissioner’s participation in proceedings referred to in subsection (4); or
under paragraph (5)(b) other than to facilitate the Commissioner’s participation in a matter referred to in subsection (5).
The Commission may disclose designated information obtained by it in the performance or exercise of its duties or powers related to section 41, in respect of conduct carried out by electronic means, in accordance with subsection 58(1) or 60(1) of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.
Designated information that is not disclosed or required to be disclosed under this section is not admissible in evidence in any judicial proceedings except proceedings for failure to submit information required to be submitted under this Act or any special Act or for forgery, perjury or false declaration in relation to the submission of the information.
Connection of Facilities
The Commission may order a Canadian carrier to connect any of the carrier’s telecommunications facilities to any other telecommunications facilities.
An order may require the connection to be made at or within such time, and subject to such conditions, if any, as to compensation or otherwise, as the Commission determines to be just and expedient.
Unsolicited Telecommunications
The Commission may, by order, prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications to the extent that the Commission considers it necessary to prevent undue inconvenience or nuisance, giving due regard to freedom of expression.
Despite subsection (1), the Commission may not prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is
a commercial electronic message to which section 6 of An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act applies; or
a commercial electronic message referred to in subsection 6(5) of that Act, except to the extent that it is one referred to in subsection 6(8) of that Act.
Sections 41.2 to 41.7 create a legislative framework for a national do not call list.
The Commission may, for the purposes of section 41,
administer databases or information, administrative or operational systems;
determine any matter, and make any order, with respect to the databases or the information, administrative or operational systems; and
conduct investigations to determine whether there has been a contravention of any order made under that section.
The Commission may make regulations prescribing fees, and respecting their calculation and payment, to be paid by any person who acquires information from the databases or the information, administrative or operational systems referred to in section 41.2 for the purpose of recovering all or a portion of the costs that the Commission determines to be attributable to its responsibilities under that section and that are not recovered under any regulation made under section 68.
Fees required to be paid under this section constitute a debt due to Her Majesty in right of Canada and may be recovered in a court of competent jurisdiction.
The Commission shall publish any regulations that it proposes to make under subsection (1) and shall give interested persons a reasonable opportunity to make representations to the Commission with respect to the proposed regulations.
Proposed regulations that are modified after publication need not be published again under subsection (3).
The Commission may, in writing and on specified terms, delegate to any person, including any body created by the Commission for that purpose, any of its powers under section 41.2 and the power to collect fees that it prescribes under subsection 41.21(1).
For the purposes of sections 62 and 63, a decision of a delegate is deemed to be a decision of the Commission.
For greater certainty, a delegation of powers is a decision of the Commission.
The Commission may, in writing, revoke a delegation of powers. A revocation is deemed not to be a decision of the Commission.
A delegate may charge rates for exercising delegated powers.
[Repealed, 2012, c. 19, s. 599]
Despite the Financial Administration Act, money collected by a delegate is deemed not to be public money.
However, any fees that are prescribed under subsection 41.21(1) and collected by the delegate are public money when they are paid to the Receiver General.
The Commission may regulate the rates charged by a delegate, whether by requiring pre-approval of the rates or otherwise, and the manner in which the delegate exercises any of the delegated powers.
The Commission shall, within six months after the end of each fiscal year, deliver a report to the Minister on the operation of the national do not call list in that fiscal year.
The report shall set out any costs or expenditures related to the list, the number of Canadians using the list, the number of telemarketers accessing the list, any inconsistencies in the prohibitions or requirements of the Commission under section 41 that are applicable to the operation of the list, and an analysis of the effectiveness of the list.
The Minister shall cause a copy of the report referred to in subsection (1) to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.
An order made by the Commission that imposes a prohibition or requirement under section 41 that relates to information contained in any database or any information, administrative or operational system administered under section 41.2 for the purpose of a national do not call list does not apply in respect of a telecommunication
made by or on behalf of a registered charity within the meaning of subsection 248(1) of the Income Tax Act;
made to a person
with whom the person making the telecommunication, or the person or organization on whose behalf the telecommunication is made, has an existing business relationship, and
who has not made a do not call request in respect of the person or organization on whose behalf the telecommunication is made;
made by or on behalf of a political party that is a registered party as defined in subsection 2(1) of the Canada Elections Act or that is registered under provincial law for the purposes of a provincial or municipal election;
made by or on behalf of a nomination contestant, leadership contestant or candidate of a political party described in paragraph (c) or by or on behalf of the official campaign of such a contestant or candidate;
made by or on behalf of an association of members of a political party described in paragraph (c) for an electoral district;
made for the sole purpose of collecting information for a survey of members of the public; or
made for the sole purpose of soliciting a subscription for a newspaper of general circulation.
The following definitions apply in subsection (1).
candidate means a candidate as defined in subsection 2(1) of the Canada Elections Act or a candidate whose nomination has been confirmed, for the purposes of a provincial or municipal election, by a political party that is registered under provincial law. (candidat)
existing business relationship means a business relationship that has been formed by a voluntary two-way communication between the person making the telecommunication and the person to whom the telecommunication is made, arising from
the purchase of services or the purchase, lease or rental of products, within the eighteen-month period immediately preceding the date of the telecommunication, by the person to whom the telecommunication is made from the person or organization on whose behalf the telecommunication is made;
an inquiry or application, within the six-month period immediately preceding the date of the telecommunication, by the person to whom the telecommunication is made in respect of a product or service offered by the person or organization on whose behalf the telecommunication is made; or
any other written contract between the person to whom the telecommunication is made and the person or organization on whose behalf the telecommunication is made that is currently in existence or that expired within the eighteen-month period immediately preceding the date of the telecommunication. (relation d’affaires en cours)
leadership contestant means a leadership contestant as defined in subsection 2(1) of the Canada Elections Act or a contestant for the leadership of a political party that is registered under provincial law. (candidat à la direction)
nomination contestant means a nomination contestant as defined in subsection 2(1) of the Canada Elections Act or a contestant for nomination by a political party that is registered under provincial law as its candidate in a provincial or municipal election. (candidat à l’investiture)
Any person making a telecommunication referred to in subsection (1) must, at the beginning of the telecommunication, identify the purpose of the telecommunication and the person or organization on whose behalf the telecommunication is made.
Every person or organization that, by virtue of subsection (1), is exempt from the application of an order made by the Commission that imposes a prohibition or requirement under section 41 shall maintain their own do not call list and shall ensure that no telecommunication is made on their behalf to any person who has requested that they receive no telecommunication made on behalf of that person or organization.
Subsections (3) and (4) do not apply in respect of a person making a telecommunication referred to in paragraph (1)(f).
Construction and Expropriation Powers
Subject to any contrary provision in any Act other than this Act or any special Act, the Commission may, by order, in the exercise of its powers under this Act or any special Act, require or permit any telecommunications facilities to be provided, constructed, installed, altered, moved, operated, used, repaired or maintained or any property to be acquired or any system or method to be adopted, by any person interested in or affected by the order, and at or within such time, subject to such conditions as to compensation or otherwise and under such supervision as the Commission determines to be just and expedient.
The Commission may specify by whom, in what proportion and at or within what time the cost of doing anything required or permitted to be done under subsection (1) shall be paid.
In this section and section 44, distribution undertaking has the same meaning as in subsection 2(1) of the Broadcasting Act.
Subject to subsections (3) and (4) and section 44, a Canadian carrier or distribution undertaking may enter on and break up any highway or other public place for the purpose of constructing, maintaining or operating its transmission lines and may remain there for as long as is necessary for that purpose, but shall not unduly interfere with the public use and enjoyment of the highway or other public place.
No Canadian carrier or distribution undertaking shall construct a transmission line on, over, under or along a highway or other public place without the consent of the municipality or other public authority having jurisdiction over the highway or other public place.
Where a Canadian carrier or distribution undertaking cannot, on terms acceptable to it, obtain the consent of the municipality or other public authority to construct a transmission line, the carrier or distribution undertaking may apply to the Commission for permission to construct it and the Commission may, having due regard to the use and enjoyment of the highway or other public place by others, grant the permission subject to any conditions that the Commission determines.
Where a person who provides services to the public cannot, on terms acceptable to that person, gain access to the supporting structure of a transmission line constructed on a highway or other public place, that person may apply to the Commission for a right of access to the supporting structure for the purpose of providing such services and the Commission may grant the permission subject to any conditions that the Commission determines.
On application by a municipality or other public authority, the Commission may
order a Canadian carrier or distribution undertaking, subject to any conditions that the Commission determines, to bury or alter the route of any transmission line situated or proposed to be situated within the jurisdiction of the municipality or public authority; or
prohibit the construction, maintenance or operation by a Canadian carrier or distribution undertaking of any such transmission line except as directed by the Commission.
On application by a municipality or other public authority, or by an owner of land, the Commission may authorize the construction of drainage works or the laying of utility pipes on, over, under or along a transmission line of a Canadian carrier or any lands used for the purposes of a transmission line, subject to any conditions that the Commission determines.
If, in the opinion of a Canadian carrier, the taking or acquisition by the carrier of any land, an interest or, in the Province of Quebec, a right in any land without the consent of the owner is required for the purpose of providing telecommunications services to the public, the carrier may, with the approval of the Commission, so advise the appropriate Minister in relation to Part I of the Expropriation Act.
The Commission shall provide a copy of its approval to the Minister, to the appropriate Minister in relation to Part I of the Expropriation Act and to each owner of, or person having an interest or right in, the land.
For the purposes of the Expropriation Act, if the appropriate Minister advised under subsection (1) is of the opinion that the land or the interest or right in land is required for the purpose of providing telecommunications services to the public,
the land or the interest or right in land is deemed to be, in the opinion of that Minister, required for a public work or other public purpose;
a reference to the Crown in that Act is deemed to be a reference to the Canadian carrier; and
the carrier is liable to pay any amounts required to be paid under subsection 10(9) and sections 25, 29 and 36 of that Act in respect of the land or the interest or right in land.
The expenses incurred in carrying out any function of the Attorney General of Canada under the Expropriation Act in relation to any land or any interest or right in land referred to in subsection (3) constitute a debt due to Her Majesty in right of Canada by the Canadian carrier and are recoverable in a court of competent jurisdiction.
Telecommunications Numbering and Other Matters
The Commission may, if it determines that to do so would facilitate the interoperation of Canadian telecommunications networks,
administer
databases or information, administrative or operational systems related to the functioning of telecommunications networks, or
numbering resources used in the functioning of telecommunications networks, including the portion of the North American Numbering Plan resources that relates to Canadian telecommunications networks; and
determine any matter and make any order with respect to the databases, information, administrative or operational systems or numbering resources.
The Commission may, in writing and on specified terms, delegate any of its powers under section 46.1 to any person, including any body created by the Commission for that purpose.
For the purposes of sections 62 and 63, a decision of a delegate is deemed to be a decision of the Commission.
For greater certainty, a delegation of powers is a decision of the Commission.
The Commission may, in writing, revoke a delegation of powers. A revocation is deemed not to be a decision of the Commission.
Subject to subsection (2), a delegate may charge rates for exercising delegated powers.
The Commission may regulate the rates charged by a delegate, whether by requiring pre-approval of the rates or otherwise.
Notwithstanding the Financial Administration Act, money collected by a delegate is deemed not to be public money.
The Commission may regulate
the manner in which any person provides services relating to any of the matters referred to in paragraph 46.1(a); and
the rates, whether by requiring pre-approval of the rates or otherwise, charged by the person.
The Commission may require any telecommunications service provider to contribute, subject to any conditions that the Commission may set, to a fund to support continuing access by Canadians to basic telecommunications services.
The Commission must designate a person to administer the fund.
The Commission may regulate
the manner in which the administrator administers the fund; and
the rates, whether by requiring pre-approval of the rates or otherwise, charged by the administrator for administering the fund.
Administration
Exercise of Powers
The Commission shall exercise its powers and perform its duties under this Act and any special Act
in accordance with any orders made by the Governor in Council under section 8 or any standards prescribed by the Minister under section 15.
with a view to implementing the Canadian telecommunications policy objectives and ensuring that Canadian carriers provide telecommunications services and charge rates in accordance with section 27; and
The Commission may, on application by any interested person or on its own motion, inquire into and make a determination in respect of anything prohibited, required or permitted to be done under Part II, except in relation to international submarine cables, Part III or this Part or under any special Act, and the Commission shall inquire into any matter on which it is required to report or take action under section 14.
The decision of the Commission that a person is or is not an interested person is binding and conclusive.
For the purposes of this Act, a quorum of the Commission consists of two members, but in uncontested matters a quorum consists of one member.
The Commission may extend the period, whether fixed by regulation or otherwise, for doing anything required to be done in proceedings before it or under any of its decisions.
The Commission may order a person, at or within any time and subject to any conditions that it determines, to do anything the person is required to do under this Act or any special Act, and may forbid a person to do anything that the person is prohibited from doing under this Act or any special Act.
The Commission may, in exercising its powers and performing its duties under this Act or any special Act, determine any question of law or of fact, and its determination on a question of fact is binding and conclusive.
In determining a question of fact, the Commission is not bound by the finding or judgment of any court, but the finding or judgment of a court is admissible in proceedings of the Commission.
The power of the Commission to hear and determine a question of fact is not affected by proceedings pending before any court in which the question is in issue.
Where an issue of particular importance affecting the public interest arises, or may arise, in the course of proceedings before the Commission, the Minister of Justice may, at the request of the Commission or of the Minister’s own motion, instruct counsel to intervene in the proceedings with respect to the issue.
A hearing or a portion of a hearing before the Commission may, on the request of any party to the hearing, or on the Commission’s own motion, be held in camera if that party establishes to the satisfaction of the Commission, or the Commission determines, that the circumstances of the case so require.
The Commission has the powers of a superior court with respect to
the attendance and examination of witnesses;
the production and examination of any document, information or thing;
the enforcement of its decisions;
the entry on and inspection of property; and
the doing of anything else necessary for the exercise of its powers and the performance of its duties.
The Commission may award interim or final costs of and incidental to proceedings before it and may fix the amount of the costs or direct that the amount be taxed.
The Commission may order by whom and to whom any costs are to be paid and by whom they are to be taxed and may establish a scale for the taxation of costs.
The Commission may make rules, orders and regulations respecting any matter or thing within the jurisdiction of the Commission under this Act or any special Act.
Guidelines and Advice
The Commission may from time to time issue guidelines and statements with respect to any matter within its jurisdiction under this Act or any special Act, but the guidelines and statements are not binding on the Commission.
Where a person proposes to provide a telecommunications service that would utilize telecommunications services obtained from a Canadian carrier, the Commission may, on application by the person or the carrier, advise the applicant whether and under what conditions the carrier is obliged or entitled to provide telecommunications services for the purpose of that utilization under the applicable decisions of the Commission and tariffs of the carrier, but the advice is not binding on the Commission.
This section does not affect the power of the Commission to advise any person with respect to any other matter within its jurisdiction.
Decisions of Commission
The Commission may grant the whole or any portion of the relief applied for in any case, and may grant any other relief in addition to or in substitution for the relief applied for as if the application had been for that other relief.
The Commission may, in any decision, provide that the whole or any portion of the decision shall come into force on, or remain in force until, a specified day, the occurrence of a specified event, the fulfilment of a specified condition, or the performance to the satisfaction of the Commission, or of a person named by it, of a requirement imposed on any interested person.
The Commission may make an interim decision and may make its final decision effective from the day on which the interim decision came into effect.
The Commission may make an ex parte decision where it considers that the circumstances of the case justify it.
The Commission may, on application or on its own motion, review and rescind or vary any decision made by it or re-hear a matter before rendering a decision.
A decision of the Commission may be made an order of the Federal Court or of a superior court of a province and may be enforced in the same manner as an order of that court as if it had been an order of that court on the date of the decision.
A decision of the Commission may be made an order of a court in accordance with the usual practice and procedure of the court in such matters, if any, or by the filing with the registrar of the court of a copy of the decision certified by the secretary to the Commission.
Where a decision of the Commission that has been made an order of a court is rescinded or varied by a subsequent decision of the Commission, the order of the court is vacated and the decision of the Commission as varied may be made an order of the court in accordance with subsection (2).
The Commission may enforce any of its decisions whether or not the decision has been made an order of a court.
Appeals
An appeal from a decision of the Commission on any question of law or of jurisdiction may be brought in the Federal Court of Appeal with the leave of that Court.
Leave to appeal shall be applied for within thirty days after the date of the decision appealed from or within such further time as a judge of the Court grants in exceptional circumstances, and the costs of the application are in the discretion of the Court.
Notice of an application for leave to appeal shall be served on the Commission and on each party to the proceedings appealed from.
An appeal shall be brought within sixty days after the day on which leave to appeal is granted.
On an appeal, the Court may draw any inference that is not inconsistent with the findings of fact made by the Commission and that is necessary for determining a question of law or jurisdiction.
The Commission is entitled to be heard on an application for leave to appeal and at any stage of an appeal, but costs may not be awarded against it or any of its members.
Evidence
A decision of the Commission or a tariff approved by the Commission that is published in the Canada Gazette by or with leave of the Commission shall be judicially noticed.
In proceedings under this Act, a document purporting to have been issued by a Canadian carrier or by an agent or a mandatary of a Canadian carrier is admissible in evidence against the carrier without proof of the issuance of the document by the carrier or the authenticity of its contents.
A document appearing to be signed by the Minister, the Chairperson of the Commission or the secretary to the Commission is evidence of the official character of the person appearing to have signed it and, in the case of the Chairperson or secretary, of its issuance by the Commission, and if the document appears to be a copy of a decision or report, it is evidence of its contents.
A copy of a document submitted to the Commission and appearing to be certified as a true copy by the secretary to the Commission is, without proof of the secretary’s signature, evidence of the original, of its submission to the Commission, of the date of its submission and of the signature of any person appearing to have signed it.
A certificate appearing to be signed by the secretary to the Commission and bearing the Commission’s seal is evidence of its contents without proof of the signature.
Regulations
The Commission may make regulations
prescribing standards governing the height of transmission lines of Canadian carriers, not inconsistent with standards prescribed under any other Act of Parliament;
establishing rules respecting its practice and procedure;
prescribing classes of international telecommunications service licences;
requiring international telecommunications service licensees to publish their licences or otherwise make them available for public inspection;
establishing the criteria for the awarding of costs; and
generally for carrying out the purposes and provisions of this Act or any special Act.
Regulations made by the Commission may be of general application or applicable in respect of a particular case or class of cases.
Regulations made by the Commission incorporating any standard or enactment by reference may incorporate it as amended from time to time.
The Commission may, with the approval of the Treasury Board, make regulations prescribing fees, and respecting their calculation and payment, for the purpose of recovering all or a portion of the costs that the Commission determines to be attributable to its responsibilities under this Act or any special Act.
Fees required to be paid under this section constitute a debt due to Her Majesty in right of Canada and may be recovered in a court of competent jurisdiction.
Any regulations proposed to be made under section 67 or 68 shall be published in the Canada Gazette at least sixty days before their proposed effective date, and a reasonable opportunity shall be given to interested persons to make representations to the Commission with respect to the proposed regulations.
Proposed regulations that are modified after publication need not be published again under subsection (1).
Telecommunications Apparatus
Application
This Part applies to telecommunications apparatus that can be
connected to telecommunications networks of Canadian carriers; and
used by a telecommunications service subscriber at their premises.
Prohibitions
No person shall distribute, lease, offer for sale, sell or import any telecommunications apparatus for which registration is required under this Act, unless it is registered.
No person shall distribute, lease, offer for sale, sell or import any telecommunications apparatus for which technical specifications or markings are required under section 69.3 or 69.4, unless the apparatus complies with those requirements.
Minister’s Powers
Subject to any regulations made under section 69.4, the Minister may, taking into account all matters that the Minister considers relevant to further the Canadian telecommunications policy objectives,
register telecommunications apparatus and fix any conditions and the duration of the registration;
establish requirements for the registration of telecommunications apparatus;
establish the procedure governing applications for registration;
amend the conditions and change the duration of the registration;
make available to the public any information regarding the registered telecommunications apparatus;
establish technical specifications and markings in relation to telecommunications apparatus or any class of telecommunications apparatus and any requirements relating to those technical specifications and markings;
test telecommunications apparatus for compliance with technical specifications and markings required under this Part;
require an applicant for registration to disclose to the Minister any information that the Minister considers appropriate respecting the present and proposed use of the telecommunications apparatus in question;
establish fees for registration, applications for registration and examinations or testing in relation to registration, and respecting interest payable on unpaid fees;
require the registrant to inform the Minister of any material changes in information disclosed under paragraph (f);
establish requirements to recognize and designate foreign and domestic persons that are competent to assess whether telecommunications apparatus complies with the applicable foreign or domestic technical specifications;
[Repealed, 2014, c. 39, s. 197]
do any other thing necessary for the effective administration of this Part.
The Minister may authorize any person to exercise any of the powers that are granted to the Minister under this Part, or by the regulations made under this Part, subject to any conditions that the Minister may fix.
The Minister may suspend or revoke a registration
with the consent of the registrant;
after giving written notice to the registrant and giving the registrant a reasonable opportunity to make representations to the Minister with respect to the notice, if the Minister is satisfied that
the registrant has contravened this Part, the regulations made under this Part or the conditions of the registration,
the registration was obtained through misrepresentation, or
the apparatus does not comply with the applicable technical specifications or markings; or
on giving written notice of suspension or revocation to the registrant, without having to give the registrant an opportunity to make representations to the Minister with respect to the notice, if the registrant has failed to comply with a request to pay fees or interest due.
Powers of Governor in Council and Others
The Governor in Council may make regulations
respecting requirements for technical specifications and markings in relation to telecommunications apparatus or any class of telecommunications apparatus;
[Repealed, 2014, c. 39, s. 198]
respecting the inspection, testing and approval of telecommunications apparatus in respect of a registration;
prescribing the form of registration or markings, or any class of registration or markings;
[Repealed, 2014, c. 39, s. 198]
prescribing the eligibility and qualifications of persons who may be appointed as inspectors, and the duties of inspectors;
for giving effect to international agreements, conventions or treaties respecting telecommunications apparatus to which Canada is a party;
[Repealed, 2014, c. 39, s. 198]
prescribing anything that by this Part is to be prescribed; and
generally for carrying out the purposes and provisions of this Part.
For greater certainty, a regulation made under subsection (1) incorporating by reference a classification, standard, procedure or other specification may incorporate the classification, standard, procedure or specification as amended from time to time.
[Repealed, 2014, c. 39, s. 199]
Investigation and Enforcement
Inquiries
The Commission may appoint any person to inquire into and report to the Commission on any matter
pending before the Commission or within the Commission’s jurisdiction under this Act or any special Act; or
on which the Commission is required to report under section 14.
The Minister may, with the approval of the Governor in Council, appoint any person to inquire into and report to the Minister on any matter in respect of which this Act or any special Act applies, and a copy of the report shall be sent to the Commission.
For the purposes of an inquiry, a person appointed under this section has all the powers of a Commissioner under Part I of the Inquiries Act and of an inspector under subsection 71(4).
The rules in section 39 respecting the designation and disclosure of information apply in respect of any information submitted to a person, or obtained in proceedings before a person, appointed under this section as if that person were a member of the Commission exercising the powers of the Commission.
The rules in section 54 respecting in camera hearings apply in hearings held before a person appointed under this section.
Inspection
The Commission may designate any qualified person as an inspector for the purpose of verifying compliance or preventing non-compliance with the provisions of this Act or any special Act for which the Commission is responsible, with the provisions of Division 1.1 of Part 16.1 of the Canada Elections Act, and with the decisions of the Commission under this Act.
The Minister may designate any qualified person as an inspector for the purpose of verifying compliance or preventing non-compliance with the provisions of this Act for which the Minister is responsible.
An inspector shall be provided with a certificate of designation, which certificate the inspector shall present at the request of any person appearing to be in charge of any place entered by the inspector.
An inspector may, subject to subsection (5), for the purposes for which the inspector was designated an inspector,
enter, at any reasonable time, any place in which they believe on reasonable grounds there is any document, information or thing relevant to the purpose of verifying compliance or preventing non-compliance with this Act, any special Act, or Division 1.1 of Part 16.1 of the Canada Elections Act, and examine the document, information or thing or remove it for examination or reproduction;
make use of, or cause to be made use of, any computer system at the place to examine any data contained in or available to the system;
reproduce any document, or cause it to be reproduced, from the data in the form of a print-out or other intelligible output and take the print-out or other output for examination or copying; and
use any copying equipment or means of communication in the place.
An inspector may not enter a dwelling-house without the consent of the occupant or under the authority of a warrant.
On an ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in the warrant to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
the dwelling-house is a place described in paragraph (4)(a);
entry to the dwelling-house is necessary for the purpose of verifying compliance or preventing non-compliance with this Act, any special Act, or Division 1.1 of Part 16.1 of the Canada Elections Act; and
entry has been refused or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.
An inspector executing a warrant issued under subsection (6) shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
The owner or person in charge of a place entered by an inspector shall provide all assistance that is reasonably required to enable the inspector to perform their functions under this Part, and shall provide any information that is reasonably expected for that purpose.
An inspector who believes that a person is in possession of information that the inspector considers necessary for the purpose of verifying compliance or preventing non-compliance with this Act, any special Act, or Division 1.1 of Part 16.1 of the Canada Elections Act may, by notice, require that person to submit the information to the inspector in the form and manner and within the reasonable time that is stipulated in the notice.
No person shall
resist or wilfully obstruct the inspector in carrying out his or her duties; or
knowingly make a false or misleading statement, either orally or in writing, to the inspector.
Civil Liability
Subject to any limitation of liability imposed in accordance with this or any other Act, a person who has sustained loss or damage as a result of any act or omission that is contrary to this Act or any special Act or a decision or regulation made under either of them may, in a court of competent jurisdiction, sue for and recover an amount equal to the loss or damage from any person who engaged in, directed, authorized, consented to or participated in the act or omission.
An action may not be brought in respect of any loss or damage referred to in subsection (1) more than two years after the day on which the act or omission occurred.
Nothing in subsection (1) or (2) applies to any action for breach of a contract to provide telecommunications services or any action for damages in relation to a rate charged by a Canadian carrier.
General Administrative Monetary Penalties Scheme
Every contravention of a provision of this Act, other than section 17 or 69.2, and every contravention of a regulation or decision made by the Commission under this Act, other than a prohibition or a requirement of the Commission made under section 41, constitutes a violation and the person who commits the violation is liable
in the case of an individual, to an administrative monetary penalty not exceeding $25,000 and, for a subsequent contravention, a penalty not exceeding $50,000; or
in any other case, to an administrative monetary penalty not exceeding $10,000,000 and, for a subsequent contravention, a penalty not exceeding $15,000,000.
The amount of the penalty is to be determined by taking into account the following factors:
the nature and scope of the violation;
the history of compliance with this Act, the regulations or the decisions made by the Commission under this Act, by the person who committed the violation;
any benefit that the person obtained from the commission of the violation;
the person’s ability to pay the penalty;
any factors established by any regulations; and
any other relevant factor.
The purpose of the penalty is to promote compliance with this Act, the regulations or the decisions made by the Commission under this Act, and not to punish.
Despite subsection 72.005(1), the Commission may impose a penalty in a decision in the course of a proceeding before it under this Act in which it finds that there has been a contravention of a provision, a regulation or a decision referred to in section 72.001.
The Commission may
designate a person, or class of persons, that is authorized to issue notices of violation or accept an undertaking; and
establish, in respect of each violation, a short-form description to be used in notices of violation.
A person who is designated to issue notices of violation and who believes, on reasonable grounds, that a person has committed a violation may issue, and shall cause to be served on the person, a notice of violation.
The notice of violation must name the person believed to have committed the violation, identify the violation and include
the penalty that the person is liable to pay;
a statement as to the right of the person, within 30 days after the day on which the notice is served, or within any longer period that the Commission specifies, to pay the penalty or to make representations with respect to the violation and the penalty, and the manner for doing so; and
a statement indicating that if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the penalty may be imposed.
A person may enter into an undertaking at any time.
An undertaking
must be accepted by a person who is authorized to accept an undertaking;
must identify every act or omission that constitutes a contravention and that is covered by the undertaking;
must identify every provision or decision at issue;
may contain any conditions that the person who is authorized to accept an undertaking considers appropriate; and
may include a requirement to pay a specified amount.
If a person enters into an undertaking, no notice of violation may be served on them in connection with any act or omission referred to in the undertaking.
If a person enters into an undertaking after a notice of violation is served on them, the proceeding that is commenced by the notice of violation is ended in respect of that person in connection with any act or omission referred to in the undertaking.
Failure to respect an undertaking constitutes a violation.
If a person who is served with a notice of violation pays the penalty proposed in the notice, the person is deemed to have committed the violation and the proceedings in respect of it are ended.
If a person who is served with a notice of violation makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, after considering any other representations that it considers appropriate, whether the person committed the violation and, if it so decides, it may impose the penalty set out in the notice, a lesser penalty or no penalty.
If a person who is served with a notice of violation neither pays the penalty nor makes representations in accordance with the notice, the person is deemed to have committed the violation and the Commission may impose the penalty.
The Commission shall cause a copy of any decision made under subsection (2) or (3) to be issued and served on the person together with a notice of the person’s right to apply for a review under section 62 or for leave to appeal under section 64.
An officer, director or agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.
The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:
the amount of the penalty imposed by the Commission in a decision in the course of a proceeding before it under this Act in which it finds that there has been a contravention of a provision, a regulation or a decision referred to in section 72.001;
the amount payable under an undertaking entered into under subsection 72.006(1) beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is entered into;
the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice;
if representations are made, either the amount of the penalty that is imposed by the Commission or on appeal, as the case may be, beginning on the day specified by the Commission or the court or, if no day is specified, beginning on the day on which the decision is made; and
the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (d).
A proceeding to recover such a debt may not be commenced later than five years after the day on which the debt becomes payable.
A penalty paid or recovered in relation to a violation is payable to the Receiver General.
The Commission may issue a certificate for the unpaid amount of any debt referred to in subsection (1).
Registration in the Federal Court of a certificate made under subsection (4) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
A proceeding in respect of a violation may not be commenced later than three years after the day on which the subject-matter of the proceedings becomes known to the Commission.
A document appearing to have been issued by the secretary to the Commission, certifying the day on which the subject-matter of any proceedings became known to the Commission, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
The Commission may make public
the name of a person who enters into an undertaking, the nature of the undertaking including the acts or omissions, the provisions or the decisions at issue, the conditions included in the undertaking and, if applicable, the amount of the penalty; and
the name of a person who committed the violation, the nature of the violation including the acts or omissions and provisions or decisions at issue and the amount of the penalty.
The Governor in Council may make regulations
exempting from the application of section 72.001 any provision of this Act or the regulations or any decision;
for the purpose of paragraph 72.002(1)(e), establishing other factors to be considered in determining the amount of the penalty; and
respecting undertakings entered into under subsection 72.006(1).
Administrative Monetary Penalties Scheme for Unsolicited Telecommunications
Every contravention of a prohibition or requirement of the Commission under section 41 and every contravention of any provision of Division 1.1 of Part 16.1 of the Canada Elections Act constitutes a violation and the person who commits the violation is liable
in the case of an individual, to an administrative monetary penalty of up to $1,500; or
in the case of a corporation, to an administrative monetary penalty of up to $15,000.
[Repealed, 2014, c. 39, s. 203]
A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
The Commission may
designate persons, or classes of persons, who are authorized to issue notices of violation; and
establish, in respect of each violation, a short-form description to be used in notices of violation.
A person designated under paragraph (1)(a) shall be provided with a certificate of designation, which certificate must be presented at the request of any person appearing to be in charge of any place entered by the designated person.
[Repealed, 2014, c. 39, s. 204]
[Repealed, 2014, c. 39, s. 204]
A person authorized to issue notices of violation who believes on reasonable grounds that a person has committed a violation may issue, and shall cause to be served on that person, a notice of violation.
The notice of violation must name the person believed to have committed a violation, identify the violation and set out
the penalty for the violation as set out in section 72.01;
the right of the person, within 30 days after the notice is served, or within any longer period that the Commission specifies, to pay the penalty or to make representations to the Commission with respect to the violation, and the manner for doing so; and
the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commission may impose the penalty.
If the person pays the penalty set out in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.
If the person makes representations in accordance with the notice, the Commission must decide, on a balance of probabilities, whether the person committed the violation and, if it so decides, it may impose the penalty.
A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Commission may impose the penalty.
The Commission must cause a copy of any decision made under subsection (2) or (3) to be issued and served on the person together with a notice of the person’s right to apply for a review under section 62 or for leave to appeal under section 64.
An administrative monetary penalty constitutes a debt due to Her Majesty in right of Canada that may be recovered as such in the Federal Court.
No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.
An administrative monetary penalty paid or recovered in relation to a violation is payable to and shall be remitted to the Receiver General.
The unpaid amount of any debt referred to in subsection (1) may be certified by the Commission.
Registration in the Federal Court of a certificate made under subsection (4) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
[Repealed, 2014, c. 39, s. 206]
[Repealed, 2014, c. 39, s. 206]
No proceedings in respect of a violation may be commenced later than two years after the day on which the subject-matter of the proceedings became known to the Commission.
A document appearing to have been issued by the secretary to the Commission, certifying the day on which the subject-matter of any proceedings became known to the Commission, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
The Commission may make public the nature of a violation, the name of the person who committed it, and the amount of the administrative monetary penalty.
Provisions Applicable to Both Administrative Monetary Penalties Schemes
In a proceeding in respect of a violation, a notice purporting to be served under subsection 72.005(1) or 72.07(1) or a copy of a decision purporting to be served under subsection 72.007(4) or 72.08(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
It is a defence for a person in a proceeding in relation to a violation to establish that the person exercised due diligence to prevent the violation.
Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence under this Act or Division 1.1 of Part 16.1 of the Canada Elections Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
A person is liable for a violation that is committed by an employee of the person acting in the course of the employee’s employment, or by an agent or mandatary of the person acting within the scope of the agent’s or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against.
If an act or omission can be proceeded with either as a violation or as an offence under this Act or Division 1.1 of Part 16.1 of the Canada Elections Act, proceeding in one manner precludes proceeding in the other.
For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Section 12 does not apply in respect of any decision of the Commission made under subsection 72.007(2) or (3) or 72.08(2) or (3) or the portion of the decision made under section 72.003 relating to the finding of a contravention and the imposition of a penalty.
For the purposes of sections 71 and 72.01 to 72.19, a group as defined in section 348.01 of the Canada Elections Act is considered to be a corporation.
Offences
Every person who contravenes subsection 16(4) or 16.1(1) or (2) or section 17 is guilty of an offence punishable on summary conviction and liable
in the case of an individual, to a fine not exceeding fifty thousand dollars for a first offence, or one hundred thousand dollars for a subsequent offence; or
in the case of a corporation, to a fine not exceeding five hundred thousand dollars for a first offence, or one million dollars for a subsequent offence.
Every person who
contravenes section 25, subsection 27(1) or (2) or section 69.2,
contravenes any condition referred to in section 9 or 24 or subsection 34(1) or (2),
contravenes any prohibition or requirement of the Commission under section 41,
knowingly makes a material misrepresentation of fact or omits to state a material fact to the Minister, the Commission, a person appointed under section 70 or an inspector appointed under section 71, or a person designated under section 72.004 or 72.04, or
contravenes any provision of Division 1.1 of Part 16.1 of the Canada Elections Act
is guilty of an offence punishable on summary conviction and liable, in the case of an individual, to a fine not exceeding ten thousand dollars for a first offence or twenty-five thousand dollars for a subsequent offence, and in the case of a corporation, to a fine not exceeding one hundred thousand dollars for a first offence or two hundred and fifty thousand dollars for a subsequent offence.
Every person who
contravenes any other provision of this Act or any special Act or any regulation or decision made under this Act, or
fails to do anything required or does anything prohibited under a provision, regulation or decision referred to in paragraph (a)
is guilty of an offence punishable on summary conviction and liable, in the case of an individual, to a fine not exceeding five thousand dollars for a first offence or ten thousand dollars for a subsequent offence, and in the case of a corporation, to a fine not exceeding fifty thousand dollars for a first offence or one hundred thousand dollars for a subsequent offence.
A prosecution may not be commenced under this section in respect of a contravention of any provision of Part I, of section 17 or of any regulations made under subsection 22(2), or in respect of a material misrepresentation of fact or an omission to state a material fact to the Minister, without the consent of the Minister.
A prosecution may not be commenced in respect of any other offence without the consent of the Commission.
A prosecution may not be commenced under this Act later than two years after the occurrence of the act or omission that is the subject-matter of the proceedings.
If a court of competent jurisdiction is satisfied, on application by the Minister, that a contravention of section 69.2 is being or is likely to be committed, the court may grant an injunction, subject to any conditions that the court considers appropriate, ordering any person to cease or refrain from any activity related to that offence.
For the purposes of subsection (7), the Federal Court is a court of competent jurisdiction.
For the purposes of this section, a group as defined in section 348.01 of the Canada Elections Act is considered to be a corporation.
Where an offence under section 73 is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
Forfeiture
In the case of a conviction for an offence arising out of a contravention of subsection 69.2(1) or (2), any telecommunications apparatus in relation to which or by means of which the offence was committed may be forfeited to Her Majesty in right of Canada by order of the Minister for the disposition, subject to subsections (2) to (6), that the Minister may direct.
If apparatus is ordered to be forfeited under subsection (1), the Minister shall cause a notice of the forfeiture to be published in the Canada Gazette.
Any person, other than a party to the proceedings that resulted in a forfeiture under subsection (1), who claims an interest or right in the apparatus as owner, mortgagee, hypothecary creditor, lien holder, holder of a prior claim or holder of any like interest or right may, within ninety days after the making of the order of forfeiture, apply to any superior court of competent jurisdiction for an order under subsection (6), in which case the court shall fix a day for the hearing of the application.
The court may find the application abandoned if the applicant does not, at least thirty days before the day fixed for the hearing of the application, serve a notice of the application and of the hearing on the Minister and on all other persons claiming an interest or right in the apparatus that is the subject-matter of the application as owner, mortgagee, hypothecary creditor, lien holder, holder of a prior claim or holder of any like interest or right of whom the applicant has knowledge.
Every person, other than the Minister, who is served with a notice under subsection (4) must, in order to appear at the hearing of the application, file an appropriate notice of intervention in the record of the court and serve a copy of that notice on the Minister and on the applicant at least ten days before the day fixed for the hearing or any shorter period that the court may allow.
An applicant or intervener is entitled to an order declaring that their interest or right is not affected by the forfeiture and declaring the nature and extent of their interest or right and the ranking of their interest or right in relation to other interests or rights recognized under this subsection, and the court may, in addition, order that the apparatus to which the interests or rights relate be delivered to one or more of the persons found to have an interest or right in the apparatus, or that an amount equal to the value of each of the interests or rights so declared be paid to the persons found to have those interests or rights, if, on the hearing of an application under this section, the court is satisfied that the applicant or intervener
is innocent of any complicity and collusion in any conduct that caused the apparatus to be subject to forfeiture; and
in the case of owners, exercised all reasonable care in respect of the persons permitted to obtain possession and use of the apparatus to satisfy themselves that it was not likely to be used in the commission of an offence arising out of a contravention of section 69.2.
Any persons convicted in respect of the forfeited apparatus are jointly and severally, or solidarily, liable for all the costs of inspection, seizure, forfeiture or disposition incurred by Her Majesty that exceed any proceeds of the disposition of the apparatus that have been forfeited to Her Majesty under this section.
Transitional Provisions
The Governor in Council may, after consultation with the Commission, issue to the Commission directives respecting the regulation, during any period ending five years after this section comes into force, of a Canadian carrier whose telecommunications operations were not, immediately before this section comes into force, being regulated pursuant to any Act of Parliament, but not more than one such directive may be issued in respect of any one Canadian carrier.
The Commission shall carry out the directives, subject to and in accordance with the provisions of this Act.
The Minister shall have a copy of each directive laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the directive is issued.
An agreement or arrangement referred to in section 29 or a limitation of liability referred to in section 31 that was entered into or imposed, respectively, by a Canadian carrier in conformity with provincial law while the carrier’s operations were not being regulated under an Act of Parliament, and that is in effect on the coming into force of this section, shall be deemed to have been approved pursuant to section 29 or 31.
A transmission line that was constructed by a Canadian carrier on, over, under or along a highway or other public place while the carrier’s operations were not being regulated under an Act of Parliament shall be deemed to have been constructed with the consent referred to in subsection 43(3).
Related Amendments, Repeals, Application of Certain Provisions and Coming into Force
Related Amendments
[Amendments]
Repeals
[Repeals]
Application of Certain Provisions
Where a day is fixed for the coming into force of section 3, 88, 89 or 90, that section does not apply in relation to any Canadian carrier that is an agent of Her Majesty in right of the Province of Manitoba until December 31, 1993, or such earlier day as is fixed by the Governor in Council at the written request of the Government of Manitoba.
Where a day is fixed for the coming into force of section 3, 88, 89 or 90, that section does not apply in relation to any Canadian carrier that is an agent of Her Majesty in right of the Province of Saskatchewan until a day to be fixed for that purpose by the Governor in Council on the expiration of five years after that section comes into force, or such earlier day as is fixed by the Governor in Council at the written request of the Government of Saskatchewan.[Note: Sections 3, 88, 89 and 90 shall apply in relation to any Canadian carrier that is an agent of Her Majesty in right of the Province of Saskatchewan as of June 30, 2000, see SI/98-109.]
Coming into Force
This Act or any provision thereof shall come into force on a day or days to be fixed by order of the Governor in Council.[Note: Act in force October 25, 1993, see SI/93-101.]