OFFENCES

Marginal note:Non-compliance

42. Every person who refuses or fails to comply with a demand made under section 15 or a notice issued under section 17 or who contravenes subsection 19(4) commits an offence.

Marginal note:Obstruction and false information

43. Every person who obstructs or hinders, or knowingly makes a false or misleading statement or provides false or misleading information to, a designated person who is carrying out their duties and functions under this Act commits an offence.

Marginal note:Directors and officers of corporations

44. An officer, director, agent or mandatary of a corporation that commits an offence is a party to and liable for the offence if they directed, authorized, assented to, acquiesced in or participated in the commission of the offence, whether or not the corporation is proceeded against.

Marginal note:Vicarious liability

45. A person is liable for an offence that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary is identified or proceeded against.

Marginal note:Offence

• 46. (1) Every person who commits an offence under section 42 or 43 is guilty of an offence punishable on summary conviction and is liable

  • (a) to a fine of not more than $10,000 for a first offence or $25,000 for a subsequent offence, in the case of an individual; or

  • (b) to a fine of not more than $100,000 for a first offence or $250,000 for a subsequent offence, in the case of any other person.

• Marginal note:Defence

  (2) A person must not be convicted of an offence under section 42 if they establish that they exercised due diligence to prevent the commission of the offence.

PRIVATE RIGHT OF ACTION

Application

Marginal note:Application

• 47. (1) A person who alleges that they are affected by an act or omission that constitutes a contravention of any of sections 6 to 9 of this Act or of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act — or that constitutes conduct that is reviewable under section 74.011 of the Competition Act — may apply to a court of competent jurisdiction for an order under section 51 against one or more persons who they allege have committed the act or omission or who they allege are liable for the contravention or reviewable conduct by reason of section 52 or 53.

• Marginal note:Limitation period

  (2) Unless the court decides otherwise, no application may be brought later than three years after the day on which the subject matter of the proceeding became known to the applicant.

• Marginal note:Affidavit to accompany application

  (3) The application must be accompanied by an affidavit that identifies the alleged contravention or reviewable conduct, sets out every provision, act or omission at issue and any other facts in support of the application and, if the applicant claims that they have suffered an actual loss or damage, or have incurred expenses, as a result of the alleged contravention or reviewable conduct, states the nature and amount of the loss, damage or expenses.

• Marginal note:Notice

  (4) The applicant must, without delay, serve a copy of the application on every person against whom an order is sought, on the Commission if the application identifies a contravention of this Act, on the Commissioner of Competition if the application identifies conduct that is reviewable under section 74.011 of the Competition Act and on the Privacy Commissioner if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.

Marginal note:Limitation

• 48. (1) The court may not consider an application for an order against a person under paragraph 51(1)(b) that alleges a contravention of any of sections 6 to 9

  • (a) if the person has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application; or

  • (b) if the person is liable for the contravention by virtue of section 52 or 53 and the corporation, employee, agent or mandatary, as the case may be, who committed the contravention has entered into an undertaking under subsection 21(1), or has been served with a notice of violation under subsection 22(1), in connection with the act or omission referred to in the application.

• Marginal note:Certification by Commission

  (2) At the written request of a person against whom an order under paragraph 51(1)(b) is sought, the Commission must, within 10 business days after the day on which the request is made, if it is so satisfied, certify in writing to the court that the person is liable for the contravention by virtue of section 52 or 53 and that an undertaking has been entered into, or a notice of violation has been served, in connection with the act or omission referred to in the application for the order. If such a certification is given, the court may not consider the application.

• Marginal note:Effect of application

  (3) If the court determines that it may consider an application for an order against a person under paragraph 51(1)(b), then, unless the application is discontinued in respect of that person,

  • (a) no undertaking by the person may be entered into under subsection 21(1), and no notice of violation may be issued to them under subsection 22(1), in connection with an act or omission referred to in an application; and

  • (b) no undertaking by the corporation, employee, agent or mandatary who committed the contravention may be entered into under subsection 21(1), and no notice of violation may be issued to that corporation, employee, agent or mandatary under subsection 22(1), in connection with an act or omission referred to in an application.

Marginal note:Notice of discontinuance

49. If an application for an order under paragraph 51(1)(b) is discontinued in respect of a person, the applicant must, without delay, notify everyone who was served with a copy of the application under subsection 47(4) of the discontinuance.

Hearing

Marginal note:Right to intervene

50. The following may intervene in any proceedings in connection with an application under subsection 47(1) for an order under paragraph 51(1)(b) and in any related proceedings:

• (a) the Commission, if the application identifies a contravention of this Act;

• (b) the Commissioner of Competition, if the application identifies conduct that is reviewable under the Competition Act; and

• (c) the Privacy Commissioner, if the application identifies a contravention of the Personal Information Protection and Electronic Documents Act.

Marginal note:Order

• 51. (1) If, after hearing the application, the court is satisfied that one or more persons have contravened any of the provisions referred to in the application or engaged in conduct referred to in it that is reviewable under section 74.011 of the Competition Act, the court may order the person or persons, as the case may be, to pay the applicant

  • (a) compensation in an amount equal to the actual loss or damage suffered or expenses incurred by the applicant; and

  • (b) a maximum of

    • (i) in the case of a contravention of section 6, $200 for each contravention of that provision, not exceeding $1,000,000 for each day on which a contravention occurred,

    • (ii) in the case of a contravention of section 7 or 8, $1,000,000 for each day on which a contravention occurred,

    • (iii) subject to subparagraphs (iv) and (v), in the case of a contravention of section 9, $1,000,000 for each contravention of that provision,

    • (iv) in the case of a contravention of section 9 resulting from aiding, inducing or procuring, or causing to be procured, the doing of an act contrary to section 6, and if a contravention of section 6 has resulted, $200 for each such contravention of section 6, not exceeding $1,000,000 for each day on which a contravention of section 6 occurred,

    • (v) in the case of a contravention of section 9 resulting from aiding, inducing or procuring, or causing to be procured, the doing of an act contrary to section 7 or 8, and if a contravention of either of those sections has resulted, $1,000,000 for each day on which a contravention of section 7 or 8, as the case may be, occurred,

    • (vi) in the case of a contravention of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act, $1,000,000 for each day on which a contravention occurred, and

    • (vii) in the case of conduct that is reviewable under section 74.011 of the Competition Act, $200 for each occurrence of the conduct, not exceeding $1,000,000 for each day on which the conduct occurred.

• Marginal note:Purpose of order

  (2) The purpose of an order under paragraph (1)(b) is to promote compliance with this Act, the Personal Information Protection and Electronic Documents Act or the Competition Act, as the case may be, and not to punish.

• Marginal note:Factors to be considered

  (3) The court must consider the following factors when it determines the amount payable under paragraph (1)(b) for each contravention or each occurrence of the reviewable conduct:

  • (a) the purpose of the order;

  • (b) the nature and scope of the contravention or reviewable conduct;

  • (c) the person’s history, or each person’s history, as the case may be, with respect to any previous contravention of this Act and of section 5 of the Personal Information Protection and Electronic Documents Act that relates to a collection or use described in subsection 7.1(2) or (3) of that Act and with respect to any previous conduct that is reviewable under section 74.011 of the Competition Act;

  • (d) the person’s history, or each person’s history, as the case may be, with respect to any previous undertaking entered into under subsection 21(1) and any previous consent agreement signed under subsection 74.12(1) of the Competition Act that relates to acts or omissions that constitute conduct that is reviewable under section 74.011 of that Act;

  • (e) any financial benefit that the person or persons obtained from the commission of the contravention or from engaging in the reviewable conduct;

  • (f) the person’s or persons’ ability to pay the total amount payable;

  • (g) whether the applicant has received compensation in connection with the contravention or the reviewable conduct;

  • (h) the factors established by the regulations; and

  • (i) any other relevant factor.