Industry Committee on Oct. 5th, 2017

[Natalie Brown]

I would add that we should keep in mind that the general rules of statutory interpretation call for a restrictive interpretation of these exemptions. In other words, despite the provided exemptions, we often end up having to stick to a restrictive interpretation, even when the intent is broader.

[Eva Nassif, Liberal, Vimy, QC]

Thank you.

[Lloyd Longfield, Liberal, Guelph, ON]

For the record, I'd just like to ask the Canadian Chamber of Commerce a question.

When you have the survey results, could those come in to the clerk so that we can use them as part of our study?

With regard to Australia's CEM definitions or others that might have been used in the previous study, maybe Mr. Sookman could send those in so that we can see some best practice examples of CEM definitions. That would be very helpful.

[Barry Sookman]

I'd be glad to do that. There is one other thing this committee might want to see. There is a charter challenge of CASL before the CRTC, and that charter challenge very explicitly identifies, both in the submissions and in the expert reports that were filed for the applicant, some of the problems with CASL.

If this committee would like me to file those materials, I'd be glad to provide them to the committee.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you. We're learning from you, so we really appreciate your coming in and doing that and offering that.

Ms. Brown, let's go to the other side of things and think of vulnerable Canadians—seniors, people who can be targeted by commercial enterprises—and how they might be protected from being targeted. We have a lot of stories in the media about shopping channels and things that really go after seniors' savings.

Is there any way that we could address seniors and vulnerable Canadians, and still protect business-to-business communications?

[Natalie Brown]

I can speak only for our business, and seniors are a large part of our business in Quebec.

Don't forget that we're under a tremendous amount of regulation. Our regulatory authority is the AMF, which checks for sound practices. We're under the Consumer Protection Act. There are various ways to protect seniors. Mr. Sookman mentioned personal information protection. We have all sorts of consents in place under those laws, and there are various other protections under consumer personal protection that protect seniors very well.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you.

I'll share the rest of my time with my colleagues across the way.

[The Chair, Liberal, Dan Ruimy]

Mr. Bernier, You have seven and a half minutes.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you.

My question is for the officials from the Desjardins Group.

You mentioned that there is a need for data and to maintain a database in order to show compliance. In your estimation, what are the costs incurred by the Desjardins Group in order to comply with CASL? How many employees do you have in each of Desjardins' networks working on this?

I imagine that you are currently doing your best to be in compliance. Do you think that small companies have the same resources as Desjardins to ensure compliance?

[Natalie Brown]

First, on the issue of the cost of compliance, we will have to forward you that information at a later date. We never bothered to establish a grand total.

Furthermore, having chaired the Desjardins Group's anti-spam committee, as Aïsha is doing now, I can tell you that we are talking about several dozen employees, since we have to include every branch, every caisse and every aspect of compliance, from legal affairs to operational risk. I will forward you this information as well.

On your second question, now, as to whether smaller companies can bear these kinds of costs, I would have to say that it would be unrealistic to think so. The Desjardins Group is a massive company, and even despite that, we feel the burden is much too heavy to bear. I think that more than answers the question.

[Aïsha Fournier Diallo]

We need to remember that every email and every piece of electronic communication we send is subject to the law. We need to ask the question every single time.

We need to ensure that everything is ready so that our 48,000 employees and 5,000 managers know what to do. It is not difficult to imagine how a small business might not have the resources to validate all that.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you.

It would be useful for the committee to have that information on the number of people that ensure compliance with the act in the various departments and on the cost of ensuring compliance.

[Natalie Brown]

Of course.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you.

I have another question for Mr. Smith about individuals...Canadians who are having issues understanding this legislation. Can you explain a little bit more about this?

[Scott Smith]

There are individuals within businesses who are having trouble understanding it. Mr. Sookman described this fairly explicitly in a previous question, but essentially, you have multiple layers of text that you need to be able to follow. The act is very prescriptive, so you need to follow it very closely. Then you need to follow the regulations that came through Industry Canada. You need to pay attention to the CRTC regulations, to what the Competition Bureau has put out in terms of guidance, and to what the Office of the Privacy Commissioner has put out in guidance. You need to read the regulatory impact statement to get some understanding or context of why the law is there in the first place. Then you need to read the guidance from the CRTC, which in many cases hasn't been that helpful, because it doesn't give you a lot of guidance.

The problem is that the CRTC is both the enforcement agency and the guidance agency. The challenge for businesses in going back to the CRTC for guidance is that as soon as they open the door to say they have a problem, it opens the door to an investigation.

From a business person's perspective, if you are a small business and you have four or five employees, you as the business owner are likely the person who's going to be responsible for figuring out how to comply with this at the same time as running your business and dealing with all the other regulations that come across your plate.

When we're saying they're having difficulty complying.... They're having difficulty understanding the definition of a CEM, why they can't send a message to their neighbouring business saying, “Let's go for coffee.” They don't understand it.

[Maxime Bernier, Conservative, Beauce, QC]

What about Canadian consumers? As you know, there are a lot of complaints at the CRTC. We had a civil servant before us a couple of days ago.

You said before that you think maybe they are not real complaints. Can you explain a bit more about that?

[Scott Smith]

What I suggested there is, just because there's a complaint, it doesn't necessarily mean there has been a violation. We don't know what those complaints actually look like. Maybe there should be some type of reporting back from the CRTC where these complaints are valid or these complaints are not valid. We don't understand that right now.

From our perspective, our businesses want to protect their own customers. They want to protect consumers, and there are ways of doing that.

There was a code of practice developed long before CASL came into play. That code of practice dealt with things such as making sure you are active on activating unsubscribes, for instance, or how the wording in the unsubscribes should be characterized. Most of the businesses I deal with were compliant with that code of practice.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you.

Jim, you can take my time.

[Jim Eglinski, Conservative, Yellowhead, AB]

Thank you.

Mr. Sookman, during your presentation you talked about more generous recommendations. I would like to get a little clarification, because Mr. Lawford stated that he thought the CRTC was fairly lenient. I know as a former policeman that if I had allowed everybody to go down the highway 15 kilometres over, as they probably do on Highway 401 here, everybody would go 124 kilometres an hour, and after a little while the speed limit would be set at that.

Would there not be a tendency for people to push the system? Can you tell me where you were going with that statement?

[Barry Sookman]

That's a very good question. I did a very extensive blog post in terms of what I thought the structure should be for considering regulations.

In my view, it starts from looking at the structure of the act. The structure of the act prohibits a large swath of activities. You may not communicate electronically something that's in a category that's very broad, and then it has a very close list of exceptions. Recognizing that this impacts free speech, and commercial speech, is exceptionally important for Canadians, because free speech lets Canadians have information they need to make better choices. It also promotes competition in the marketplace.

Recognizing the value of commercial speech and that it is protected by the charter, and recognizing the structure of CASL, my point—when I talked about generous regulations—was not loopholes. My recommendation was, having regard to the way in which the legislation is structured, one had to recognize that there were going to be a myriad of situations that could never have been contemplated when you ban, take a “ban all“ approach.

That's why my recommendation was, in the case of doubt, we should not be trying to prohibit things that could in fact be advantageous and needed by Canadians. That doesn't mean in any sense of the word that we should have regulations that would permit malicious computer programs to be disseminated or the things that the government said they were really concerned about.

When I say generous, the regulations should have been viewed having regard to the freedoms that Canadians are entitled to and that are necessary for the proper operation of a competitive marketplace.

[Jim Eglinski, Conservative, Yellowhead, AB]

Thank you.

Thank you, Chair, for being generous with his time.

[The Chair, Liberal, Dan Ruimy]

No problem.

We're going to move to Mr. Masse, for seven minutes.

[Brian Masse, NDP, Windsor West, ON]

I'll ask everybody to respond to this.

We had a recent stay of part of the legislation for individuals. Whether you're an individual and a private citizen or you're a business owner, there was recourse.

In your opinion, what recourse is there for people? If I go out and spend my money to buy a device, some of them up to $1,000, I'm going to pay fees of $50 to $75 a month for it. It's going to affect the way I interact with my family and with my business and it can have other consequences on my privacy. It can have other consequences in terms of how I maintain contacts for emergencies, and so forth. I've chosen this as my primary communication device.

What recourse is there, then, in terms of what has been stayed? Whether you agree or disagree with the private thing, why should there be a reduction of that privilege to protect oneself in terms of the argument? Why either reduce the protections or not allow that for private citizens? What gives somebody the right to unsolicitedly use my investment, my time, and my materials, and expose me to privacy concerns without being requested to do so?

I'll start with Ms. Brown.

[Natalie Brown]

Of course, if we could have the privilege to have you as a customer, the purpose we aim for with the emails we want to send.... Obviously some are commercial, obviously some may be useful to alert you to fraud, to transactions that are being done in your account, if they're more commercial in marketing. My point as a business owner is to send you the most personalized, useful information that's targeted to your needs. And by doing that, I believe we're saving you some time by sending you information that you want.

[Brian Masse, NDP, Windsor West, ON]

Your business might be doing that, but if I haven't solicited that relationship with you, if we get rid of what we're doing here, it just comes in as it used to, through bots and through phishing and other things. That's my concern.

Once we've engaged in that relationship with Desjardins—and thank you for the work they do, I'm not trying to pick on you by any means—and in fairness to my bank, they give good service when I go in there. As a customer I hate some of the things they do. But that's my choice at the end of the day. My concern is that a consumer can eventually choose that, and I do that. I accept the fact that my bank takes advantage of my data and sends me unsolicited information that I pay for. I have that choice.