Canada: CASL Enforcement: Canadian Authorities Secure New Undertaking

A major food manufacturer can be added to the list of companies that have entered into a voluntary undertaking to avoid enforcement proceedings under Canada's anti-spam legislation ("CASL").

Kellogg Settlement

For about two and a half months in 2014, Kellogg Canada and/or its third party service providers sent commercial electronic messages ("CEM") to recipients without the consent of those recipients. CASL generally requires companies to obtain consent  before sending CEMs and that messages include certain content, such as identification and unsubscribe information.  Non-compliance can be addressed under the legislation in one of two ways: (1) a voluntary undertaking; or (2) an administrative monetary penalty following the issuance of a notice of compliance by the Canadian Radio-television and Telecommunications Commission ("CRTC") following an opportunity for responding submissions in defence of any alleged violations.  Kellogg Canada chose to provide a voluntary undertaking, thereby avoiding the risk of an administrative monetary penalty of up to $10 million for non-compliance with CASL by a corporation.  In doing so, it became the fourth company to avail itself of the undertaking option under CASL.

Kellogg Canada's undertaking includes a monetary payment of $60,000 plus an undertaking to comply, and ensure that any third party authorized to send a CEM on its behalf complies, with CASL. Kellogg Canada also agreed to review and update its compliance program with the goal to promote compliance with CASL. More specifically, the program will cover elements such as reviewing and revising its written policies and procedures on CASL compliance, implementing training programs for employees, tracking CEM complaints and their subsequent resolution, and updating monitoring and auditing mechanisms to assess compliance with CASL.

CASL Undertakings

Since CASL came into force in July 2014, three companies — Porter Airlines Inc., Plentyoffish Media Inc., and Rogers Media Inc. — have entered into separate undertakings in relation to alleged violations of the consent and/or form requirements for CEMs under CASL and related CRTC regulations.

All of the undertakings include the common elements of:

  1. a monetary payment (ranging between $48,000 and $200,000);
  2. an undertaking to comply with, and ensure that any third party authorized to send a CEM on its behalf complies with, CASL and applicable regulations issued by the ); and
  3. an undertaking to update and implement their respective compliance program to cover elements such as corporate compliance policies and procedures, training and education, monitoring, and auditing. Some undertakings have also included express reference to reporting mechanisms, and consistent disciplinary procedures.

Unfortunately, none of these announced undertakings provide clear guidance in order to gauge how future monetary undertaking payments will be determined.  But they do signal that monetary payments can be substantially less via undertaking than proceeding unsuccessfully through the "notice of compliance" route. For example, an administrative monetary penalty of $1,100,000 was issued against 3510395 Canada Inc. (doing business as Compu-Finder) for multiple violations of CASL within a three month period.  The company had sent out unsolicited emails promoting training courses to businesses without the consent of recipients, and also failed to include a functioning unsubscribe option.  The size of the penalty should be considered with the context of the CRTC finding the conduct to have been flagrant and analysis showing that 26% of complaints submitted to the Spam Reporting Centre for this industry sector related to Compu-Finder.

Our Take

Companies looking to mitigate their CASL compliance risks may wish to review CRTC  guidance when assessing their CASL compliance programs.  According to the CRTC, the key components of an effective CASL compliance program include:

  1. Senior management involvement. For example, in large businesses, a member of senior management may be named as the business's chief compliance officer and be responsible and accountable for the development, management, and execution of the business's corporate compliance program. In the case of small and medium-sized businesses, the business could identify a point person who is responsible and accountable for compliance with CASL.
  2. Risk assessments to determine which business activities are at risk for the commission of violations under CASL. The chief compliance officer or point person should then develop and apply policies and procedures to mitigate those risks.
  3. A written corporate compliance policy that is easily accessible to all employees, and regularly reviewed and updated to keep pace with changes in legislation, non-compliance issues, or new services or products.
  4. Good record keeping, which should include, among other things, records of unsubscribe requests and the company's compliance with the request, and all evidence of express consent (e.g. audio recordings or forms) by consumers who agree to be contacted via a CEM. Businesses should also maintain a record of any contravention and the action taken after identifying any contravention with the Act to be able to demonstrate a robust corrective and disciplinary policy in practice.
  5. Training programs for staff at all levels regarding prohibited conduct under CASL and what should be done when observing prohibited conduct.
  6. Auditing and monitoring mechanisms directed at preventing and detecting misconduct, and assessing the effectiveness of the corporate compliance program.
  7. A mechanism for consumers to submit complaints and for the business to respond to and resolve the complaint within a reasonable timeframe.
  8. An organizational disciplinary code incorporating corrective or disciplinary action, or providing refresher training, as appropriate, to address violations of the corporate compliance policy.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

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.

Similar Articles
Relevancy Powered by MondaqAI
Aird & Berlis LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Aird & Berlis LLP
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions