Two recent decisions by the CRTC have prompted us to include a
CASL update for the education sector in this month's
In March of this year, the CRTC fined Compu-Finder $1.1 million
for three instances of sending Commercial Electronic Messages
(CEMs) to recipients advertising professional development courses
without the recipients' consent, and one instance of sending
CEMs without a functioning unsubscribe mechanism, contrary to
Also in March, Plentyoffish Media Inc., an online dating
service, agreed to pay a $48,000.00 fine in response to the
CRTC's allegation that it sent CEMs which contained an
unsubscribe mechanism that was not set out 'clearly and
prominently' and was not able to be 'readily
performed', as required by CASL and its regulation.
Plentyoffish has also agreed to implement a compliance program to
remedy the deficiencies identified by the CRTC.
CASL allows for monetary penalties against a corporation of up
to $10 million per violation. In the face of over 100,000
complaints to date, the CRTC has stated it will focus its energy on
the most severe violations Not surprisingly, for-profit
corporations rather than not-for-profit corporations have received
the first fines. Nevertheless, it is prudent for school boards,
councils and foundations to ensure they can demonstrate due
diligence in adhering to CASL requirements, both for the sake of
modelling statutory compliance as community leaders, and in order
to minimize liability for any inadvertent errors.
CASL's prohibition against sending CEMs without the express
or implied consent of the recipient, and without the prescribed
content, took effect July 1, 2014.
As we noted in
our newsletter article of March, 2014, CASL calls for an
analysis of the content of the message, rather than the purpose or
characterization of the sender. A message is considered commercial
if one or more of its purposes is to encourage participation in a
commercial activity, regardless of whether or not there is an
expectation of a profit. Therefore an invitation by a school or
school council to purchase goods and services such as food, field
trip, travel or photographs, or to respond to an RFP, would be
captured by this Act if sent electronically.
Miller Thomson can assist with a "CASL Audit",
including drafting requests for consent, and addressing other CASL
We would also like to invite readers to register for our
upcoming Morning Recess webinar, at 10:00 on May 21. Dirk Van de
Kamer will be discussing the implications of some recent labour
cases for the education sector.
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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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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