Canada: CASL Is Here – Now What? Practical Issues For Insurers And Brokers

Last Updated: July 9 2014
Article by Bernice Karn

"You are receiving this message either because you have opted in to our email list, you are one of our customers or you work for an organization with which we have a relationship."

As of July 1, 2014, this type of message may become a familiar refrain in the emails you receive. Canada's new anti-spam law (commonly known as "CASL") prohibits the sending of any type of non-exempt "commercial electronic message" ("CEM") unless the recipient has first provided his or her informed, express, opt-in consent or consent can be implied.

Broadly speaking, CASL is a complex piece of legislation which is often ambiguous and contains a multiplicity of exemptions and implied consents that are found throughout the statute and its associated regulations. It also has "teeth", given the severe administrative monetary penalties of up to C$10 million per violation (in the case of corporations and other legal entities), C$1 million per violation (for individuals), vicarious liability of directors and officers, and a private right of action that will come into effect in 2017. Significantly, CASL has extraterritorial application; not only does it apply to messages sent within Canada but it also applies to messages received from senders located outside of Canada.

With CASL's wide reach, what are some practical takeaways for the insurance industry?

1. Messages and Relationships

In the absence of having obtained a CASL-compliant opt-in consent from the intended recipient, insurance industry participants must look at the types of messages that they are sending and the relationships that they have with various groups of recipients to determine whether any of the exceptions or implied consents apply to them.

CASL provides an exemption for "B2B" types of communications (i.e., where CEMs are sent between organizations that have some type of "relationship"). Broadly speaking, to take advantage of this exception, the message must be sent by an employee, representative, contractor or franchisee of an organization, and be relevant to the activities of the recipient organization. We note that this B2B exemption could extend to third-party business partners, such as marketing agencies, recruiting firms, service providers, and financial partners, to name a few. Insurers should be able to rely on the B2B exemption for the communications they send to their brokers.

However, insurance industry participants should be cautious about electronic communications sent to policyholders. Where the policyholder is an organization, again, the B2B exemption would likely apply. However, it is a slightly different situation if the policyholder is an individual. In that case, the insurer or broker would need to rely upon the "existing business relationship" implied consent, which generally expires two years after the policy terminates. That said, any such communication sent to the policyholder on the basis of implied consent must meet the CASL disclosure requirements and include an unsubscribe mechanism.

Maintaining a robust business development program while complying with CASL maybe difficult. Although there is a very limited one-time exception for referral emails, insurers and brokers who are prospecting for business electronically will find it challenging since this is exactly the type of behaviour CASL is designed to prevent. Creative advertising campaigns, incentives, paper-based promotions/contests, mailing, faxing and old fashioned cold calling will become the norm. One-to-one social media solicitations are permissible so long as the disclosure information and unsubscribe mechanism are available on the social media platform interface and the terms of use for the platform require at least implicit consent by users to receive these types of messages.

Requested quotes are a special problem under CASL. In the absence of an outright exemption between the parties based on their relationship (such as the "B2B" exemption discussed above), although the requested quote may be sent, the sender has to ensure that the message contains full CASL disclosure requirements and an unsubscribe mechanism.

2. Updating Forms and Agreements

Much in the same way as privacy consents have become commonplace in applications for insurance and in various types of contracts where the parties are dealing with personal information, CASL will likewise need to be addressed in these documents. It is always preferable to obtain an express, CASL-compliant opt-in consent because that type of consent does not expire (until the individual unsubscribes) and there is no argument about the type of exemption or implied consent that may or may not apply to it. Accordingly, insurance application forms should be revised to request CASL consents. Similarly, we recommend that, where appropriate, general commercial agreements should include a CASL clause between the parties to facilitate the sending of all types of electronic messages between them.

Where insurers are contemplating retaining third parties to communicate with policyholders on their behalf, they should ensure that the agreement governing their relationship includes CASL compliance provisions (including indemnification in case of any CASL violation by the third party), especially since CASL contains specific rules for consents that are sought or messages sent on behalf of third parties.

3. Effective Compliance Policies

Insurers and brokers should adopt a CASL compliance policy that addresses CASL compliance requirements and procedures, record keeping and regular audits of the company's CASL compliance program. Having a CASL compliance policy is an important risk management tool, since it forms part of an effective due diligence defence to violations of CASL, in which guilt is presumed.

The Canadian Radio-television Telecommunications Commission ("CRTC"), the agency responsible for enforcing CASL, recently issued guidance about the contents of a CASL compliance policy. The CRTC recommends that CASL compliance policies address the following elements:

  • Have senior management involvement;
  • Be based on a risk assessment and offer procedures to mitigate the risk;
  • Be reduced to writing and be updated on a regular basis;
  • Be available to all employees;
  • Include provisions for training and employee testing, auditing and compliance monitoring;
  • Address procedures for communications with third parties;
  • Establish record keeping and complaint handling mechanisms;
  • Create disciplinary procedures for non-compliance; and
  • Provide feedback mechanisms.

Record keeping under CASL may prove to be particularly onerous, depending on the complexity of an organization's activities and technological infrastructure. In a typical CASL compliance policy, the CRTC expects the following types of records to be maintained:

  • CEM policies and procedures;
  • All unsubscribe requests and actions;
  • All evidence of express consents (which may include audio recordings or forms);
  • CEM recipient consent logs (presumably for an online opt-in process);
  • CEM message scripts (where obtaining consent orally);
  • Records of actions taken re: CEM unsubscribe requests;
  • Marketing campaign records;
  • Staff training documents;
  • Business procedures related to CASL; and
  • "Official" financial records of the organization.

We suggest that any CASL compliance policy also include a complaint handling mechanism (and possibly identify a CASL compliance officer) since inevitably, individuals will come forward with complaints. Unfortunately, unscrupulous complainants may suggest that they will forego reporting it to the CRTC in exchange for "compensation" – this is where a clearly defined complaint handling protocol will facilitate the internal management of such situations. An effective CASL compliance policy should be coupled with regular training for staff.

4. Conclusion

CASL compliance is not always a straightforward task. It requires a detailed analysis of an organization's business operations, the types and roles of senders, the types of message recipients, the media, and platforms used and message contents. Depending on the situation and the business, in some instances it may be easier to treat various types of electronic messages differently at the front end, if they can be carefully tracked and managed. On the other hand, for some organizations that have many different business units, relationships and types of messaging, it may be easier to default to a single standard for its messaging and/or to rely on only a couple of types of consents, such as an existing business relationship or an express opt-in.

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.

Bernice Karn
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