Canada: Charities And Not-For-Profits: Are You Ready For The New Anti-Spam Legislation?

The Canadian government recently announced that most of Canada's Anti-Spam Legislation (CASL), including the provisions relating to commercial electronic messages (CEMs), will come into force on July 1, 2014. Intended to be one of the most stringent anti-spam regimes in the world, CASL will have a significant impact on the electronic communication practices of charitable organizations and not-for-profit entities (NFP). Members of the NFP sector had hoped that, after making submissions to the government about the significant burden that CASL would impose on the sector, the government would expand CASL's exemptions to cover the sector as a whole. While CASL does include some helpful exemptions, including some that are specifically directed at the NFP sector, there is no blanket exemption for NFPs. That means that NFPs will need to start their planning process as soon as possible to ensure that they are CASL compliant by July 1, 2014.


A CEM is an electronic message, including an email, text message, instant message and a message sent through social-networking sites, which is intended to encourage participation in a commercial activity. Commercial activity includes any transaction, act or conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit. CASL catches a wide range of electronic communications, including electronic messages that offer, advertise or promote any good or service. Generally speaking, CASL prohibits sending a CEM to an electronic address unless the recipient has consented to receiving it and the CEM complies with certain form and content requirements. It should be noted that an electronic message that is sent for the purpose of obtaining express consent to send CEMs in the future is itself a CEM. As a result, subject to certain exemptions and situations in which consent can be implied, after July 1, 2014, organizations will not be permitted to send electronic messages that are intended to obtain express consent. Accordingly, it is recommended that members of the NFP sector start obtaining express consent in the near future.


Since CASL only catches electronic communications that are intended to encourage participation in a transaction, act or conduct or course of conduct that is of a commercial character, the legislation does not apply to all electronic communications. For example, many NFPs send out newsletters that are purely educational in nature. Where the NFP does not sell any good or service, generally speaking, it is unlikely that such newsletters are captured by the definition of a CEM, so CASL may not apply. In these cases, the relevant organization will be able to continue to send these types of newsletters without consent. On the other hand, if a newsletter that is educational in nature also includes content that encourages a commercial activity, such as advertising from a sponsor or a donor, CASL may apply.

Certain CEMs are entirely exempt from CASL, which means that an NFP may send such CEMs without obtaining consent and without complying with CASL's form and content requirements. While it is outside the scope of this bulletin to review all of the available exemptions, this bulletin will outline some that are particularly relevant to NFPs. For a comprehensive list of exemptions, see our December 2013 Blakes Bulletin: The Waiting Game Is Over: Canada's Anti-Spam Legislation Will Change the E-Communication Landscape. One of the most helpful exemptions for the charitable sector provides that registered charities (as defined in the Income Tax Act), and those acting on their behalf, are permitted to send a CEM where the message is primarily intended to raise funds for the charity. However, electronic messages that promote other revenue-generating purposes are not exempt, so it is uncertain whether electronic messages promoting the purchase of, for example, lottery tickets, event tickets and other similar activities will be interpreted by the regulators and the courts as being caught by CASL.

Further, CASL exempts CEMs that are sent by an employee or representative of an organization to an employee or representative of another organization, as long as the organizations have a relationship and the message concerns the activities of the organization to which the message is sent. CASL does not provide further guidance on what constitutes a "relationship" in this context. While it will be the obligation of the sending organization to prove that the recipient of the CEM and its organization have a pre-existing relationship, this exemption will allow many business-to-business communications to continue without the need to comply with CASL. Not surprisingly, a CEM that is sent in response to an individual's request, inquiry or complaint and a CEM that was solicited by the person to whom the CEM is sent are both exempt from the legislation.


NFP Sector May Continue to Send Electronic Messages to Members, Donors and Volunteers

In some cases, an organization is not required to obtain express consent to send a CEM. Consent will be implied in a number of situations that are relevant to the NFP sector. First, implied consent exists where the recipient and the sender have – or in the previous two years have had – an existing business or non-business relationship. In particular, there is implied consent with respect to sending an electronic message to an individual that has made a donation to or volunteered at a registered charity within the previous two years. Similarly, consent is implied if the CEM arises from a person's membership in a club, association or voluntary organization during the previous two years. CASL defines a club, association or voluntary organization as an NFP that is organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any purpose other than personal profit, if no part of its income is payable to or otherwise available for the personal benefit of any proprietor, member or shareholder of that organization, unless the organization's primary purpose is the promotion of amateur athletics in Canada.

In order to rely on this category of implied consent, NFPs will need to maintain a contact database to keep track of the date on which each donation is made, each membership expires and any volunteer work is performed to ensure that the two-year time-frame is respected. Due to the time and expense related to maintaining this type of database, some NFPs may choose to obtain express consent from their donors, members, past members and volunteers to ensure compliance with CASL. It should be noted that even where an organization is relying on implied consent, the CEM must still comply with the prescribed form and content requirements that are discussed below.

Note that CASL's transitional period may also extend the length of time during which an NFP may rely on certain types of implied consent. NFPs can rely on implied consent for a period of three years as of July 1, 2014 where there is an existing business or non-business relationship, the communication between the parties has included electronic messages, and the recipient has not provided notification that they no longer consent to receiving CEMs. As a result, NFPs that can prove an existing relationship and satisfy the above requirements will have some additional time to scrub their contact databases and obtain express consent where necessary.


If an exemption is not available and an organization is not able to rely on implied consent, consent must be express. In order to comply with the requirement for express consent, the person granting the consent must make a positive or explicit indication of consent. Therefore, organizations will not be able to rely on a consent that is obtained using an opt-out or negative option method. Instead, in order to have valid express consent, an individual must take an active step to "opt in," such as by checking a previously unchecked box. In addition, in order to comply with CASL, that express consent cannot be subsumed in or bundled with requests for consents for other purposes, such as a consent to general terms and conditions of use or sale. For example, the ability to purchase a good or service must not be conditional on providing express consent to receive CEMs. Finally, the request for consent must contain certain prescribed information, including the name of the organization seeking consent, and must state that the person whose consent is being sought may withdraw their consent at any time.


Each CEM that is not exempt from CASL must identify the sender, set out prescribed contact information for the sender, and provide an "unsubscribe" mechanism. The prescribed contact information includes the name of the person sending the message; the name of the person on whose behalf the message is being sent if the message is being sent on behalf of another person; if the message is sent on behalf of another person, a statement indicating which person is sending the message and which person on whose behalf the message is being sent; and the mailing address and one of a telephone number providing access to an agent or voice message system, an email address, or a web address of the person sending the message or, if different, the person on whose behalf the message is sent. The unsubscribe mechanism must enable the recipient to indicate, at no cost to them, that he or she no longer wishes to receive CEMs from the sender. The unsubscribe mechanism must be available for use for at least 60 days after the CEM is sent and an organization must give effect to the unsubscribe mechanism without delay, and in any event, within 10 business days after the recipient has indicated that they wish to unsubscribe.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.