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. On October 7, 2014, the
CRTC announced the conclusion of its first investigation and
enforcement action under CASL (see our blog post on the
enforcement: CRTC Concludes First Enforcement Under
Canada's New Anti-Spam Legislation). While the CRTC
exercised its discretion and declined to levy fines in that
investigation, an investigation alone can generate significant
costs and obligations for businesses. If your business is subject
to investigation under CASL, there are several ways in which you
may be able demonstrate compliance with the legislation and avoid
the significant penalties associated with non-compliance. One such
option is to prove that you have recipient consent.
CASL and its regulations obligate a person to obtain the consent
of the recipient before sending a commercial electronic message (a
CEM). The legislation recognizes both express and implied
CASL and the regulations provide several requirements to
demonstrate that sufficient express consent was received for the
above activities. To have properly obtained express consent, among
other things: (i) such consent must have been sought separately for
each particular activity; (ii) such consent may not have been
obtained through a general terms and conditions agreement for a
commercial product or service; and (iii) such consent was obtained
through an active, positive act from the recipient (an
"opt-in" situation). Additionally, it is important to
remember that, although CASL specifically provides for both express
and implied consent, either in writing or oral, it is often easier
to evidence written express consent.
Implied consent, for example conspicuous publication, the
acceptance of a business card, an existing business relationship or
an existing non-business relationship, complies with the consent
requirements under CASL, but is harder to evidence. It is important
to document dates that business cards are received, as well as the
cards themselves, and retain records of correspondence or dealings
with businesses or individuals that you believe you have an
existing business or non-business relationship with. Implied
consent in respect of prior business or non-business relationships
is generally time-limited under CASL for a period of two years,
though CASL allows for a transitional period for implied consent
until July 2017.
If your organization has obtained an express consent before CASL
came into force (July 1, 2014), this consent remains valid until
the individual revokes such consent. In the event of an enforcement
action, your organization should locate documentation of any
As CASL creates a positive obligation on a business to obtain
consent, businesses investigated for non-compliance with CASL and
the regulations must be able to demonstrate that they complied with
any and all of the consent requirements for any of the above
activities. Accordingly, if your business is subject to
investigation regarding electronic transmissions and you are not
exempt, you will be required to establish sufficient consent for
the transmission in question.
Demonstrating consent can be a time-consuming and expensive
process, as the burden of proof is on the investigated business or
individual, not the complainant. It may be particularly difficult
to demonstrate that oral consent exists – the same is true
for implied consent. As a result, it is prudent practice for
businesses to create and maintain a compliance policy which
includes a method of tracking and recording consents, both express
and implied, as well as detailing revocation of consent by
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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