Industry Committee on Oct. 26th, 2009

[The Chair, Conservative, Michael Chong]

Thank you, Mr. Bouchard.

If committee members vote against clause 86, the National Do Not Call List will not be eliminated.

[Robert Bouchard, Bloc, Chicoutimi—Le Fjord, QC]

It will be settled.

[The Chair, Conservative, Michael Chong]

You do not need a motion. If you vote against this clause, the National Do Not Call List will not be eliminated.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

It's more of a point of order, Mr. Chair. As this discussion, a very important discussion, has been going around, the government has tabled another amendmentm, apparently.

[A voice]

No, no, no.

[The Chair, Conservative, Michael Chong]

What I'm saying is that if you vote against.... We're presently considering clause--

[Brian Masse, NDP, Windsor West, ON]

I'm going through this and trying to feel what was....This was under a separate subject. This is also owed due process.

[The Chair, Conservative, Michael Chong]

To be clear, we're presently considering clause 86. Clause 86 would allow the government, through the direction of the minister, at some future date to replace the “do not call” list with the new Electronic Commerce Protection Act. If members of the committee do not wish to see that happen, they can vote against this clause. No motion need be moved on the floor of this committee to remove this clause. You simply vote against the clause, and if the clause is defeated then the government, through the minister, will not have that authority at some future date.

I only want to be clear. On clause 86, I think we've had a fulsome discussion and everybody's clear on what it does. This clause allows the government, through the minister, after consultations at some future date, to replace the “do not call” list with the Electronic Commerce Protection Act.

Seeing no further discussion on this, I will call the question on clause 86.

(Clause 86 agreed to)

[The Chair, Conservative, Michael Chong]

Clause 86 has been adopted. We now move to the consideration of clause 87. I understand that there are no amendments to clause 87.

[Robert Bouchard, Bloc, Chicoutimi—Le Fjord, QC]

You said it was adopted?

[The Chair, Conservative, Michael Chong]

Yes. Clause 86 has been adopted by this committee.

Now, to clause 87.

Seeing there are no questions or comments, I'll call the question.

(Clause 87 agreed to)

(On clause 51--Order)

[The Chair, Conservative, Michael Chong]

We now will go back to two clauses that were stood earlier in our meetings.

Beginning with clause 51, I understand there are two amendments, beginning with government amendment G-43.1, moved by Mr. Lake. We're now into consideration of G-43.1, which Mr. Lake moved in our last meeting and which took some members of the committee by surprise. We stood consideration of clause 51 so you would have a full weekend to consider government amendment G-43.1. This amendment should have been distributed.

Mr. Lake, do you have any comments on G-43.1?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

To clarify for Mr. Masse, it is the same thing that was handed out last time.

[Brian Masse, NDP, Windsor West, ON]

That's what I was worried about. We started going through it without having it to hand.

[The Chair, Conservative, Michael Chong]

Madam Coady.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

I have some questions. Perhaps either Mr. Lake or the officials can answer them for me.

Why are we doubling up here? You have the new law itself and the Competition Act, and you're now doubling up on the fines. That's the way I'm reading it.

Was there a discussion, which I must have missed when we saw witnesses, to bring this forward? What's your rationale here?

[Philip Palmer]

The provision is not a doubling-up. The clause essentially functions the same way that it did as introduced. We consider the amendments to be technical rather than of a policy nature. The private right of action in this case for violations of PIPEDA and the Competition Act are all in clause 50. That is the reason why, and it always was.

It is a bit more explicit now because we have actually looked at each of the dispositions and considered how to appropriately differentiate the various contraventions of reviewable conduct that is subject to the legislation, in order to clarify whether the cap of $200 applies to a simple e-mail or whether an e-mail that contains misrepresentations would presumably be treated the same way.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

You've added the wording around subsection 74.01(1) of the Competition Act, and the way I'm reviewing this, it begs the question about whether you would then have a representation of the Competition Act and this act for the purposes of penalties. I'm not a lawyer, sir, but in talking to some lawyers, they are concerned about that.

I'm also concerned that it speaks to my earlier recommendation that we put in the words “in a material respect”. So here you now have an act that even for trivial matters could go forward, and the way I'm reading it is you'd have the possibility of retribution under the Competition Act and ECPA. Is that the way I'm reading it, sir?

[Philip Palmer]

You're not reading it incorrectly. But the amendment has nothing to do with that. The amendment does not change the underlying provisions of either the Competition Act or ECPA. It simply clarifies what was perhaps not initially obvious. We were concerned to make it clear, both for the purposes of persons who have to comply with the act and for people who have to adjudicate under the act, that the appropriate remedies be available for similar types of harms or civil wrongs, if you will. That's all we've done. We haven't changed in any measure the aggregate amounts or the minimum amounts at all. We've just attempted to better differentiate where those appropriately apply.

[Siobhan Coady, Liberal, St. John's South—Mount Pearl, NL]

There may have been concerns from witnesses that could not have been brought forward because they didn't have that clarification. That's what I'm concerned about.

[The Chair, Conservative, Michael Chong]

Thank you, Madam Coady.

(Amendment agreed to) [See Minutes of Proceedings]

[The Chair, Conservative, Michael Chong]

We now have a second amendment to clause 51, as moved by Mr. Lake. It is titled government amendment 44.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 51 as amended agreed to)

(On clause 2--Definitions)

[The Chair, Conservative, Michael Chong]

We will now go to the second of the two earlier clauses that were stood in our previous meetings, clause 2. There are six amendments that have been proposed by members of this committee, and we'll begin with Liberal amendment number 1, as moved by Mr. Rota. You should all have Liberal amendment number 1 in front of you. It's on the first page of this big package that you have.

Is there anybody wishing to speak to Liberal amendment number 1?

Mr. Garneau.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

It was really just to take a different approach to try to focus on what is true spyware. As you can see from reading the change that's proposed, it takes the approach of listing what we consider to be the specific spyware that we have to be concerned about. It also includes, as you see from there, a ninth heading, “any other purpose prescribed by regulation”. So we felt this was a better approach, and certainly one that's been followed by a number of states in the United States.

If there are any specific questions, I'd be happy to answer.

[The Chair, Conservative, Michael Chong]

Any further questions or comments on Liberal amendment number 1?

Mr. Lake.