In 2014, the anti-spam provisions of Canada's Anti-Spam
Legislation (CASL) came into force, creating a wide array of
compliance requirements for businesses. CASL prohibits a person
from sending or causing or permitting to be sent to an electronic
address a commercial electronic message unless (a) the message is
exempt or (b) the message meets the formality requirements and the
person receiving the message has consented to receiving it. While
the CRTC has only publicly acknowledged one enforcement action
under CASL as of February 12, 2015, this series of posts,
"Defending Enforcement under CASL," considers
the foundations of a due diligence defence, and how a business can
Generally speaking, CASL puts the onus on the organization
subject to an enforcement action to prove that it met its
obligations under the legislation. However, the legislation also
provides for a defence of due diligence. Section 33(1) of CASL
A person must not be found to be liable for a violation if they
establish that they exercised due diligence to prevent the
commission of the violation.
No court has yet interpreted this provision. However, if an
organization wishes to mount a due diligence defence, it appears
that it must establish, based on general principles of common law,
there was a belief in a mistaken set
of facts which, if true, would render the act innocent; or
all reasonable steps to avoid the
culpable event were taken. Non-binding guidance from the CRTC and
Industry Canada indicates that, in the view of the regulators, a
successful due diligence defense does not require demonstrating
that every conceivable step was taken. The crux of the defence
seems to be the demonstration of reasonable efforts to comply,
which may include, among other things, a compliance strategy,
adequate record maintenance efforts, employee education, and
policies and procedures for external communications.
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.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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