The broad powers of the Canadian Radio-television and Telecommunications Commission (CRTC) were reinforced in the CRTC’s Compliance and Enforcement Decision CRTC 2020-196.
In the course of investigation of numerous complaints in relation to a short message service (SMS) phishing scam the person designated by the CRTC under Canada’s Anti-spam Law (CASL) (the “investigator”) issued a notice to produce to Hydro-Québec in relation to 10 service addresses and customer accounts.
Hydro-Québec is not the source of the SMS messages under investigation It is merely an innocent third party that has files that the investigator wants to review to assess the service, billing and credit information. That investigator issued a notice to produce to Hydro-Québec.
Hydro-Québec objected to the breadth of the information sought and sought to limit the scope of the notice to produce. Hydro-Québec raised several objections, namely:
(a) the investigator had not sought a court order authorizing the requirement to disclose non-public personal information or confidential information from a public organization;
(b) some of the information sought had no rational connection to the purposes under CASL (e.g. credit history of a customer); and
(c) much of the information is confidential information protected under Quebec’s Access legislation.
The CRTC’s enforcement decision illuminates the scope to which innocent third parties may become obligated to assist an investigation under CASL and the extent of any safeguards, if any, of such innocent third parties.
On the question of the nature of its proceedings and whether a court order was required the CRTC noted it had earlier decided that its proceedings are administrative and regulatory in nature rather than criminal or penal. The CRTC decided that the predominant purpose of proceedings under CASL, including those related to notices to produce, is not the determination of penal liability. The CRTC also noted that, unlike some other legislation, CASL does not require an investigator to obtain judicial authorization before issuing a notice to produce.
On the question of the scope of a notice to produce, the CRTC noted that Section 17(1) of CASL gives investigators under CASL broad authority to require persons to produce or prepare documents that are in their possession or control.
Hydro-Québec questioned how a credit history of a customer was rationally connected to whether unsolicited commercial electronic messages had been sent.
The CRTC decided that the information sought might help the investigator follow the money trail if it was determined that unsolicited commercial electronic messages had been sent and so allowed the scope of the notice to produce.
Under Québec Access law a public organization such as Hydro-Québec is obligated to refuse to disclose non-public personal information without the consent of the person to whom the information relates or unless an exemption applied under that law. One exemption under the Québec Access law permits the public organization to disclose personal information to a person or body without the consent of the persons concerned if the information is necessary for the application of an act in Québec. The CRTC found that CASL is federal law and therefor an act in Québec.
In conclusion, the CRTC confirmed the obligations under the notice to produce.
The CRTC Compliance and Enforcement decision reveals how innocent third parties may become obligated to assist investigators in wide ranging investigations without the protections of any judicial oversight.
 See Compliance and Enforcement Decision 2017-367. That decision was upheld by the Federal Court of Appeal in 3510395 Canada Inc. v. Canada (Attorney General) 2020 FCA 103.
 That authority is limited by subsection 17(2) of CASL, which provides that the request to produce or prepare documents must be made only for one or more of the following purposes namely, verifying compliance with CASL; determining whether any of sections 6 to 9 has been contravened; and assisting an investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct prohibited under any of sections 6 to 9.