Canada: 7 Practical Lessons From CRTC's First CASL Enforcement Decision

Although CASL has been in force since July 1, 2014, the Canadian Radio-Television and Telecommunications Commission ("CRTC") has conducted its investigations and levied its penalties in a generally non-public manner. Until now, the CRTC's Compliance and Enforcement branch had publicly commented on only one Notice of Violation ("NoV") under CASL. We understand that an undisclosed number of other NoVs have been issued without public comment.

All other public CASL enforcement actions have taken the form of negotiated "undertakings" which are forms of settlements reached in confidential, closed door negotiations with the enforcement branch. This atmosphere of secrecy has made it difficult for organizations across Canada to understand the law and assess their risks.

This has now changed, at least to a degree. On October 26, the Commission issued its first written reasons in a decision under s. 25(1).


The decision relates to a NoV apparently issued on January 30, 2015, to Blackstone Learning Corp. As reported in the decision, the NoV related to some 385,668 email messages advertising educational and training services sent between July 9 and September 18, 2014, primarily targeting government employees.

Blackstone received a Notice to Produce (NtP) on November 7, 2014. (See our previous post for background on NtPs.) Blackstone requested a review of the NtP on December 4, after the deadline for production had passed.  The Commission denied this request in a letter on January 22, 2015. The NoV was issued approximately a week later.

Although an NoV sets out an Administrative Monetary Penalty (or "AMP") for the alleged violation, these notices are not final determinations. The person named in the NoV has the right, under s. 24(1), to respond to the notice with representations to the Commission, within 30 days.  Blackstone made such submissions on Feb. 14.

In parallel with that, Blackstone also made an unsuccessful attempt to appeal the letter decision denying its request for review. Blackstone sought leave to appeal to the Supreme Court of Canada, which was the wrong forum.  The right of appeal under s. 27(1) of CASL is to the Federal Court of Appeal.

Pursuant to s. 25(1), the Commission must decide, on a balance of probabilities, whether the person committed the alleged violation and, if so, whether or not to impose the AMP set out in the NoV. The Commission has the power to vary the amount of the AMP, or to suspend it subject to conditions, or waive it altogether.

The Decision

The decision canvasses a number of issues and will be carefully parsed by practitioners. However, a few practical points jump out for immediate consideration.

  1. The decision was issued nearly 20 months after the NoV. This is quite a long time. However, CASL does not set any particular time frame for this process. It remains to be seen whether this is typical, or whether decisions will come more quickly in the future.
  2. The Commission reduced Blackstone's AMP from $640,000 assessed in the NoV to $50,000. This substantial gap (reducing the initially proposed AMP by 92%) suggests that (a) the Enforcement branch may need to re-calibrate its approach; and (b) it is worthwhile for anyone with a similar NoV to exercise their right to contest the AMP, as the Commission has demonstrated a willingness to consider mitigating factors in assessing the level of an AMP.
  3. The decision counts the number of "violations" based on the number of "campaigns", not the (much higher) number of individual messages sent. In this case, the NoV alleged 9 violations, for 385,688 emails. This approach theoretically lowers the potential upper level of liability under CASL, though with a $10M fining power, this may prove to be little solace for Canadian organizations.
  4. Even though the messages (which referred to and promoted training programs) did not discuss any specific commercial terms, the references to discounts and group rates were enough for the Commission to conclude the messages were "commercial electronic messages" subject to CASL.
  5. The Commission's analysis of the conspicuous publication exception seems to add a condition which does not expressly appear in the statute. According to the decision, in order for this exception to apply, the address must be "published in such a manner that it is reasonable to infer consent to receive the type of message sent, in the circumstances". The statute does not refer to the manner of publication, except that it must be conspicuous, and the only express limitation on the type of message is that it must be "relevant to the person's business, role, functions or duties in a business or official capacity". The Commission's analysis does little to clarify how this exception can be applied. However, it does effectively confirm that any business relying on this exception will have the burden to prove that the circumstances of publication fit within the wording of the Act. In the words of the decision:
    Paragraph 10(9)(b) of the Act does not provide persons sending commercial electronic messages with a broad licence to contact any electronic address they find online; rather, it provides for circumstances in which consent can be implied by such publication, to be evaluated on a case-by-case basis.
  6. The Commission also sets out a series of principles for the assessment of AMPs that will undoubtedly be influential in its future determinations. In particular:
    • the amount of the penalty must be enough to promote changes in behaviour, but driving a person out of business would not promote compliance – it would preclude future compliant behaviour;
    • the volume of complaints received will be relevant to assessing the nature and scope of the violation(s), but so is the time period over which the messages were sent – 60 unique complaints (for nearly 400,000 messages, or a complaint rate of approximately 0.016%) was considered to be a significant volume, but the fact that the violations were limited to a two month time-span indicated a lower penalty;
    • unaudited financial statements can be acceptable evidence of ability to pay, and an AMP that would represent "several years' worth" of revenues would be excessive; and
    • lack of cooperation during an investigation may result in a higher penalty, while evidence of efforts to comply (even if "not particularly robust") suggest a lower penalty will be appropriate.
  7. Blackstone was given until November 25, 2016 to pay the assessed AMP – which also happens to be the deadline for it to file an appeal of the decision to the Federal Court of Appeal (or an application for leave to appeal, if on a question of fact). Interest of 3% above the average bank rate, compounded monthly, will be applied after that date.

To view the original article please click here.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.