Public Interest Advocacy Centre (PIAC) - 2009-10

ONE Nicholas Street, Suite 1204
Ottawa, Ontario
K1N 7B7
Tel.: 613-562-4002
Fax: 613-562-0007

1. A Rate of Criminal Interest: Updating Garland for Consumers


This project studies the issue of administrative fees imposed by utilities and telecommunications companies when consumers are late in paying their monthly bills and the use of consumer class actions against these fees on the grounds of violating s. 347 of the Criminal Code of Canada, receiving a payment of interest at a criminal rate. The latest case, De Wolf v. Bell ExpressVu Inc., was a victory for consumers in this area.

In 2000, PIAC published "A Garland for Consumers: Will the Garland Case Provide Safeguards for Vulnerable Consumers?", a report that examined the 1998 Supreme Court of Canada decision, Garland v. Consumer's Gas, and its implications for consumer protection. Since Garland, there have been a number of class actions sought using s. 347 of the Criminal Code, most notably the recent Ontario Superior Court of Justice decision in De Wolf v. Bell ExpressVu Inc. Justice Perell refused to accept Bell ExpressVu's argument that their administration fee levied 35 days after the due date of a bill was for liquidated damages, payment to offset Bell ExpressVu's costs when a subscriber's account remains unpaid. This was a new argument that PIAC's Garland report did not anticipate.

This project will update PIAC's previous report by examining the new class action judgments since Garland that focus on substance over form in identifying illegal interest charges under s. 347 of the Criminal Code. In addition, the project will provide commentary about the use of late payment penalties as a financing mechanism for companies. As well, research will be conducted to examine the mechanisms other countries have implemented to regulate and enforce interest rate caps to inform recommendations of how Canada's legislative and regulatory framework can be modified to better address late payment mechanisms and interest rate caps.

Expected Outcome

The expected outcome of the project is a broader discussion of whether the recent class action decisions results in better consumer protection from exploitative credit arrangements and what gaps in consumer protection remain.

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2. Can we CAN SPAM in Canada?


Globally the tide of spam continues to grow. Much of the spam growth is due to hard-to-control "botnets" of compromised computers. Nonetheless, in jurisdictions with anti-spam legislation (e.g., the USA "CANSPAM" and Australia) there have been enforcement actions which have led to marked reductions in spam in the short term at least and an "offshoring" effect to other jurisdictions of spammers. Canada, however, without legislation is becoming a "spam haven" (currently ranked the 5th largest source of spam worldwide). This development is disturbing and yet eminently preventable, given that the Anti-Spam Task Force has provided legislators at the federal level with a blueprint for such legislation and other counter-spam measures for business, consumers and Internet Service Providers (ISPs). Recently, the issue of anti-spam legislation came to the political forefront in campaign promises of various parties to introduce anti-spam legislation. However, the idea has not, to this date, reappeared on the parliamentary agenda. Additionally, the FTC in the United States recently has received larger jurisdiction to pursue foreign spammers. This power has been used successfully in the Netherlands, for example, yet this is because the Netherlands has anti-spam legislation. It is a matter of time before the FTC seeks to pursue Canadian spammers in Canada. This work cannot be facilitated in an orderly manner that respects Canadian sovereignty without Canadian anti-spam legislation.

This report will study the persistent problem of spam in Canada in light of worldwide efforts to stem the tide of unsolicited commercial e-mail (spam). In particular, the report will examine if Canada is becoming a "spam haven" as spammers set up in Canada – the only G7 country without comprehensive anti-spam legislation. The report also will examine if the recommendations in Canada's Anti-Spam Task Force Report of 2005 must be updated to take into account new spamming methods, more dangerous attacks delivered via spam and new forms of regulation and counter-measures employed by other countries and their regulators.

The report will review all Canadian and selected foreign secondary source materials written since the Anti-Spam Task Force Report. The research will include interviews with key stakeholders in Canada regarding the spam issue, including representatives of Internet Service Providers (ISPs), consumer and privacy activists, regulators, computer security experts, law enforcement personnel, regulators and legislators. A nationwide survey on consumer concern with spam will round out the methodological approach.

Expected Outcome

PIAC expects that the recommendations of the report, along with the report itself, will assist legislators in drafting a new anti-spam bill that will vault Canada to the front of global efforts to control spam

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3. Is Broadband Basic Service?


Concurrent to the decline of basic local land line telephony service as the only source of connection to important public telecommunications networks, there has been an aggressive take-up of broadband service by consumers in Canada and around the world. Broadband is an enabler of numerous applications of importance not only from an economic standpoint but also as an important educational and cultural connector with society. Many analysts believe that the connectivity enabled by broadband is at the core of future national and international prosperity. While broadband has grown in importance, policy makers have been obtuse as to whether the policy priority of broadband access is a program or regulatory priority. Specifically, should broadband now be subject to a Universal Service Obligation to ensure access and affordability, and if so, how this should be implemented?

The study will canvass the current consensus view as to the importance of broadband penetration and citizen access, the policy approaches that are consistent with such importance, and the implementation schemes that have been initiated to date to achieve the policy goals in various jurisdictions.

Expected Outcome

The key outcome will be to identify the desirability of an approach that may expand the terms upon which broadband is now being provided including the question of whether its provision is really the new definition (or at least part of it) of what has traditionally been referred to as basic service. In the latter instance, the desirability of ensuring broadband access and affordability outside market forces will be examined.

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4. The Consumer Brief for Telecom Reform


The Telecommunications Policy Review (TPR) Report issued in March 2006, provided that the Telecommunications Act 1993 be amended in order to implement the recommendations contained in the report on a variety of issues including clarification of objectives and means, liability rules and powers of the Commission. The government has hinted that its steps to reform the telecommunications industry to date goes beyond the efforts to date which has included the issuance of the Policy Direction of December 2006.

There appears to be a consensus among all stakeholders that the Telecommunications Act should be amended, at a minimum to reflect the changed circumstances of the industry occurring in the passage of time since the legislation was approved in 1994. The regulatory experience with the 1994 Act together with the TPR Panel report have generated a momentum for revision. PIAC believes that any revisions must reflect the experience of all stakeholders since the Act's inception. As well, the phenomenon of convergence has meant that while broadcasting and telecom industries compete with a range of products and services, some are subject to utility based regulation while others are governed by an Act that does not even mention the term consumer or contain concepts of value for service.

This project prepares the consumer response for the inevitable amending process. PIAC is concerned that this process might occur without the appropriate input having been made by consumers.

Expected Outcome

The key outcome of the project will be a set of recommended amendments to the Act together with sufficient background and commentary to enable policy makers to understand the same.

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5. Whitelisting for Cyber Security: What it Means for Consumers?


Whitelisting has recently been referred to as "the magic pill" and "the future of security technology" by various experts in the internet security industry (Michael Murphy, General Manager of Symantec Canada, 2007). Whitelisting is seen to be a potential solution to two major concerns with cyber threats: 1) their growing complexity, and 2) their increasing numbers, which exacerbate the challenge of fighting cyber threats. When discussions are initiated about cyber security, consumers are often touted as the solution.

At the annual "Cyber Security: Proactive Defence of Critical Systems and Information" conference hosted by the Conference Board of Canada in November 2008, discussions to address emerging cyber security issues suggested a partnership model involving government, industry, and security companies. Consumers are affected by any decisions implemented by a cyber security partnership and thus, this report could help inform government agencies that participate in any potential partnership arrangement. A true whitelisting solution would require the cooperation and funding of a majority of players in the technology industry. Given the rapid adoption of new cyber security techniques to address evolving cyber threats, a consumer-based analysis of the practice of whitelisting could greatly contribute to the discussion.

In particular, this topic is increasingly important to explore as it is unclear how security companies partner with operating systems and internet network administrators, thus the practice of whitelisting could be built into the backbone of the consumer's computer platforms and internet service provider, making the question of consumer choice integral to this research.

Expected Outcome

The results of this project will educate virtual consumers about how whitelisting can protect them online and educate virtual consumers about possible unintended consequences of whitelisting. The project will also inform policy makers about how whitelisting can be used in appropriate situations to protect virtual consumers, such as where sensitive financial details and personal information are exchanged, such as in online banking and online financial services.

As well, the expected outcome of this project is a contribution to a currently absent public discussion about new cyber security techniques such as whitelisting. The project report will be communicated to key stakeholders, including government agencies involved in cyber security strategies, industry associations, security companies, internet administrators, consumer organizations, the media, and the wider public.