Canada: CASL And Health Care Providers

Last Updated: May 21 2014
Article by Bonnie Freedman

Most Read Contributor in Canada, November 2017

Canada's Anti-Spam Legislation (CASL) is here – or almost – after much consultation, speculation and delay. As its working title suggests, CASL is intended to prevent unsolicited commercial electronic messages (CEMs). CASL will come into effect in stages, with the provisions relating to CEMs in force as of July 1, 2014. The Canadian Radio-television and Telecommunications Commission (CRTC) will be primarily responsible for the enforcement of CASL.

Unless an exemption applies, CASL requires the express consent of a recipient to the sending of electronic messages that encourage participation in a commercial activity. Unlike privacy laws such as the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Provincial health information specific privacy laws (including Ontario's Personal Health Information Protection Act, 2004 or PHIPA), which only apply to personal/personal health information, CASL applies to CEMS regardless of whether they contain or are sent using personal information.

Given public funding for many ("insured") health care services in Canada, there is a tendency not to consider health care services "commercial" activities. Does this thinking apply in regard to CASL? What could CASL mean for hospitals and other health care providers? Recognizing that there is uncertainty, this bulletin has been prepared to provide an overview of key provisions of CASL relating to CEMs, thoughts on how CASL may be applied to the health care sector, and suggestions about steps to be taken by health care providers prior  to July 1, 2014.

What is a "commercial activity" under CASL? As in PIPEDA, the definition of commercial activity in CASL is not always simple to apply. It includes a transaction, act or conduct of a "commercial character", regardless of whether making a profit is the intent or expected. There has been no guidance to date from the Government or CRTC on the activities of health care providers that will be considered commercial for the purposes of CASL, including whether a distinction will be made between insured and uninsured services.

What is a CEM? Although CASL defines the terms "electronic message" (a message sent by any means of telecommunication) and "commercial activity", it is not always clear when a message will be deemed to encourage participation in a commercial activity. It is clear that the encouragement need not be direct or the sole purpose of the message, and that an electronic message requesting consent to send a CEM will itself be a CEM after July 1, 2014.

What kind of consent is required under CASL? Except where otherwise indicated, consent must be express within the meaning of CASL, which may differ from that in privacy laws. To obtain consent, in addition to explaining the purposes for which consent is being sought, CEMs must: (1) identify the sender (by mailing address and one of phone number, email address, or web address); (2) enable the recipient to readily contact the sender; and (3) provide an unsubscribe mechanism (collectively, the "Content Requirements"). The unsubscribe mechanism must enable the recipient to unsubscribe at no cost from all or a specified class of CEMs, using the same electronic means by which the CEM was sent, or where those means are not practicable, other electronic means. The unsubscribe mechanism must specify an electronic address or link to a web page accessible through a web browser to which the direction to unsubscribe may be sent. The unsubscribe mechanism must be prominent, the unsubscribe information valid for at least sixty days, and the unsubscribe direction acted  on within ten business days.

What are some of the exemptions from the consent and Content Requirements in CASL? The consent and Content Requirements do not apply to CEMs communicated in two-way voice communications  (such as telephone calls), in a voice message left on a telephone, or sent by facsimile transmission to a telephone account. These requirements do not apply to CEMs sent within an organization that relate to the activities of the organization, or to CEMs relating to the activities of the recipient where the sender and recipient have an existing relationship. (This exemption may apply to electronic communications between referring and consulting health care providers).

When is implied consent permitted? Express consent is not required where there is a specified existing relationship between sender and recipient. An existing business relationship includes a relationship arising from: a purchase of goods or a service in the two-years immediately preceding the sending of the CEM; a written contract if it has not expired within the two years immediately preceding the sending of the CEM; or an inquiry in respect of the purchase of a service made within the six-months immediately preceding the sending of the CEM. Accordingly, applying the business relationship exemption may require a determination about whether health care services were "purchased" by the patient or whether there is a contract between the patient and health care provider (Ontario's agreement for primary care patient enrolment may be such a contract). Consent may also be implied where there is an existing non-business relationship between the sender and recipient, for example, arising from a donation or gift made to a registered charity, as defined in the Income Tax Act (hospital foundations may meet this criterion), within the two-years immediately preceding the sending of the CEM.

Caution should be exercised in that an exemption from one requirement (express consent) may not be an exemption from other requirements (the unsubscribe mechanism).

What are the penalties for non-compliance? The penalties are high: up to 1 million dollars for an individual and 10 million dollars for others, which could include health professional corporations. There is a due diligence defense, which makes it essential to be able to prove that there was consent to the receipt of a CEM or at least that it was reasonable to believe so. This is a marked departure from the implied consent on which health information is shared in many provinces. Health care providers may be uneasy about relying on implied consent to send electronic messages until it is known how the CRTC and the courts will apply CASL to the sector.

Is there a transition period? Where there is an existing business or non-business relationship and  that relationship includes the communication of CEMs, organizations may imply consent to the sending of CEMs until the earlier of the date on which it is withdrawn and July 1, 2017 (when the 3 year transition period terminates). There is some disagreement about whether the Content Requirements, including the unsubscribe mechanism, must be complied with during the transition period when relying on a pre-existing relationship for implied consent.

What should health care providers be doing now? BLG approached the CRTC about holding a session on the application of CASL to the health care sector. While the CRTC is unable to commit to such a session at present, it has invited questions from the sector which it will consider responding to in future communication materials. Information on how to submit questions is provided below.

  1. How Can Health Care Providers Prepare For CASL?
    1. Assign responsibility for the review/implementation of CASL within your organization.
    2. Inventory the circumstances in which your organization sends electronic messages (communications by email or text messaging services, for example), including who sends them and for what purposes.
    3. Identify your organization's policies and protocols, if any, regarding electronic communications, including those relating to consent.
    4. Determine whether any of the electronic messages your organization sends could be characterized as CEMs (see section 3 below) and if so, determine whether your protocols are consistent with the requirements in CASL.

      If your organization sends or may send CEMs:
    5. Amend policies and protocols so that they are CASL compliant (is there a presumption of consent in your organization's privacy policy for messages sent for marketing or fundraising?)
    6. If your organization wishes to rely on exemptions from the express consent requirement, ensure that your databases are current and contain the information required to accurately segment contacts according to their relationship to the organization and/or the scope of any consent they have provided.
    7. Determine how information relevant to CASL will be maintained by your organization (dates, and nature and scope of consent – particularly where an individual may opt to receive some but not all CEMs).
    8. Obtain consent to send CEMs prior to July 1, 2014 and establish a protocol for obtaining consent through non-electronic means in the future.
    9. Determine how to communicate information about CASL/train staff on your organization's CASL related policies and protocols.
    10. Determine how your organization will audit its compliance with CASL.
  2. How Are Electronic Messages Used By Health Care Providers?

    Outside of fundraising, electronic messages may be  sent by health care providers for purposes that include: giving notice of a clinical trial, research or other studies, or pilot projects for which the patient may be eligible; compliance programs; invitations to educational or other events; requests to contact the organization to book an appointment or have a diagnostic test; advising of new products (medications or medical devices) that may be appropriate for a patient; notifying patients of drug and medical device recalls; advising of services (peer reviews, services offered under a block fee arrangement, "wellness" programs); consultations among health care professionals; and communications between health care providers about patients, patient services or records.
  3. How Likely Is It That Any Of The Above Will Be Considered A CEM?

In conversation, representatives of the CRTC and Industry Canada confirmed the view that an activity that is not a "commercial activity" under PIPEDA may be a "commercial activity" under CASL.

Notice regarding clinical trials, studies and pilots  which further the interests of researchers, institutions, sponsors and society in general could constitute a CEM as well as offers of professional services (particularly but not exclusively for services that are not medically necessary or for which patients or insurers otherwise pay). Communications advising of new products or services, including compliance programs, and services provided under a block fee arrangement may also be considered CEMs.

Where there is any doubt as to whether an electronic message is "commercial in nature", the prudent approach is to obtain consent under CASL.

  1. What Are Other Exceptions To The Consent And Content Requirements That May Apply In The Health Care Sector?

    There is no requirement to obtain consent where a CEM provides:
    1. product recall information or safety or security information about a product, goods or services that the recipient uses or has used;
    2. factual information about the on-going use of a product, goods or services (a medication or medical device for example) offered under a membership or similar relationship
    3. updates or upgrades that the recipient is entitled to receive under the terms of a previously concluded transaction.

           The is no requirement to obtain consent or to meet the Content Requirements in relation to:

  1. communications sent in response to a request or inquiry, for example responding to a patient request for an appointment or prescription renewal; and
  2. communications sent pursuant to a legal obligation.

5. How Does Consent Differ Under CASL And Existing Privacy Laws?

Consent obtained in compliance with health information privacy legislation will not necessarily satisfy CASL's requirements. Obtaining consent under privacy laws generally requires notice of the purposes for which personal information will be used and disclosed and   the categories of recipients, and notice that consent may be withheld or withdrawn. Obtaining consent under CASL involves ensuring that the sender of CEMs can be easily identified and contacted and that the recipient  can easily put an end to receiving CEMs. While express consent may be required for marketing activities under personal health information and other privacy laws, some activities outside of marketing activities may also require express consent under CASL.

6. Does Using A VPN Provided By A Government Agency, Such As Ehealth Ontario's Onemail, Assure Compliance With CASL?

No. Using a VPN may satisfy requirements to protect information, but not consent or other requirements.

Questions for the CRTC may be submitted:

  • through the "Contact Us" page of the CRTC's website ( by clicking on the "ask a question or make a complaint" link and following the instructions on each page; or
  • through BLG by emailing them to

BLG will compile any questions received, submit them to the CRTC and provide any response received in bulletins posted on our website and distributed to organizations that have consented to the receipt of CEMs from BLG.

About BLG

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.

In association with
Related Video
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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions