By Megan O’Toole
On Nov. 25, the government passed Bill C-37, effectively giving force to amendments to the Telecommunications Act – resulting in what is more commonly known as the “Do Not Call” legislation. The regulations to the act still need to be written and it is anticipated that the legislation will come into force in the fall of 2007.
This federal legislation will be administered by the CRTC and is aimed at reducing the volume of telemarketing calls to Canadian consumers. It will operate through the establishment of a national Do Not Call List. When a consumer registers their number on the list, telemarketers will be prohibited from calling these individuals (with a few exceptions outlined below). Realtors may be surprised to learn that because of the broad definition of ‘telemarketing’, their calls to new and existing customers will likely be captured under the legislation.
Telemarketing has been broadly defined as “any unsolicited telephone call made for the purpose of selling or promoting a product or service, or the soliciting of money or money’s worth, whether directly or indirectly.” This clearly includes “cold calls” but could also include “reminder calls” to existing customers. When a business (or Realtor) wishes to call an individual to market their services, they will first need to check the Do Not Call List and avoid calling those names on the list (or risk fines from the CRTC).
In order to make administration and registration on the list free to Canadian consumers, it is anticipated that funding will come from fees charged to those telemarketers who wish to access the list.
There are exceptions to the legislation, namely calls to existing customers. If a Realtor has an “existing business relationship” with a customer, then the Realtor may call that consumer even if their name is registered on the on the Do Not Call List. An “existing business relationship” between a caller and a call recipient arises from a purchase or written contract within the 18-month period immediately preceding the call, or an inquiry or application made by the recipient within six months before the call. In addition to this exemption, telemarketing calls made by charities, political parties, opinion polls and/or newspapers are also exempt.
What are the consequences of calling numbers on the list? The current penalties range from $1,500 for individual infractions up to $15,000 for corporations.
Although Bill C-37 has been passed, there are still a variety of issues to be worked out (for example, the bill contains inherent contradictions to federal privacy legislation). Further, certain compliance issues need to be addressed – for example, if access to the list involves a fee, how often are telemarketers required to update their list? The CRTC is expected to hold public proceedings to solicit input from the Canadian business community. Hopefully, many of the administrative and compliance issues will be further clarified through this process.
Megan O’Toole, LL.B. is franchise counsel for Royal LePage Real Estate Services.
