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 23, 2015, this series of posts,
"Defending Enforcement under CASL," considers the
foundations of a defence to liability under CASL, including the
potential availability of exemptions.
CASL provides for a number of exemptions available to senders of
commercial electronic messages (CEM) (see
Defending Enforcement Under CASL: What is a Commercial Electronic
Message?). For example, CASL does not apply to a CEM where the
recipient is engaged in a commercial activity and the message
consists solely of an inquiry or application related to that
activity – in other words, many electronic communications
intended to solicit leads in a business to business context may be
exempt. Registered charities and political parties that send CEMs
are also exempt in certain circumstances. Other important
exemptions are the so called "B2B" and
intra-organizational exemptions. CEMs to other employees,
contractors or franchisee's of another organization that your
business has a business relationship with at the time the CEM was
sent is exempt from CASL compliance, so long as the message
concerns the affairs of the business or the recipient's role,
function or duties within or on behalf of the organization.
Similarly, CEMs between individuals of the same organization that
concern the business of the organization are also exempt.
If you are subject to an enforcement action under CASL,
establishing that an exemption applies to the transmission of the
purportedly-illegal CEM would likely serve as an absolute defense
to liability. Under CASL, the burden of proof respecting consent
and exemptions rests on the party subject to the enforcement
action. Therefore, a key element in establishing a defence under
CASL is preparedness – for example, maintaining accurate and
complete records which would establish an exemption. Further, as
many of the CASL exemptions rely on a pre-existing commercial or
family or other relationship, the foundation of a defense based
thereon rests on records of such relationship, which is significant
especially in the case of an existing business relationship.
Proving an existing business relationship is not based only on the
existence of a past transaction, but may also include, among other
things, negotiations, inquiries, and investments. Where possible,
an individual or business should maintain documentation relating to
this history in case an exemption needs to be proven.
For many commercial enterprises, effective customer relationship
management (CRM) software and records will play an important role
in defending against CASL enforcement. For the best protection, CRM
programs should be modified and integrated with messaging platforms
to track business relationships. Furthermore, and particularly for
larger enterprises, internal controls should be integrated into
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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