Canada: Establishing The Due Diligence Defence Under CASL

Despite being in force for over two years, many of the key provisions of Canada's Anti-Spam Legislation ("CASL" or the "Act") remain shrouded in uncertainty.  One such provision, for example, is the Act's due diligence defence regime.  While a person cannot be found liable for a violation of the Act if they establish that they exercised due diligence in their anti-spam practices, the Act is silent on what must be undertaken in order to rely on this defence.  

Seeking Due Diligence Guidance

Although CASL itself offers no clarity, the Canadian Radio-television and Telecommunications Commission ("CRTC") has provided advice over the years for how organizations can exercise due diligence under other legislation regimes.  Such guidance may potentially be useful in the context of CASL.

One of the earliest examples of this is the CRTC's Unsolicited Telecommunications Rules (the "Rules") in Telecom Decision 2007-48, established in relation to Canada's National Do Not Call List ("DNCL").  Due diligence, as in CASL, is a defence to a contravention of the DNCL. The Rules provide the public with the CRTC's specific criteria for assessing a due diligence defence.  According to section 526 of the Rules, due diligence in the context of the DNCL can be established when:

  1. the telecommunication resulted from an error; and
  2. the organization's routine business practices included:
    1. adequate written policies and procedures;
    2. monitoring and enforcement of the Rules and its own policies and procedures;
    3. on-going employee training;
    4. the maintaining of records; and 
    5. a requirement that third-party service providers agree to comply with the Rules.

The CRTC has historically set a high bar for establishing due diligence under the DNCL, requiring evidence that the party took all reasonable steps to comply with the Rules. For example, in Telecom Decision CRTC 2012-173, the CRTC found that, on a balance of probabilities, the company's on-going employee training did not satisfy that part of the criteria because evidence of the training's contents was not provided.  Similarly, in Telecom Decision CRTC 2012-478, the CRTC noted that another company had instituted sound policies and procedures, but denied its due diligence claim because it had subsequently failed to follow them.

Another example of CRTC guidance can be found in the Compliance and Enforcement Information Bulletin CRTC 2014-326, released in June 2014.  This bulletin includes similar best practice advice as the Rules, recommending written policies, record keeping, training programs, and mechanisms for identifying, handling and correcting errors. Notably, the bulletin also gives advice specifically for larger-scale organizations.  It encourages senior managers in larger organizations to involve themselves in their organization's compliance efforts and to take an active role in promoting the adoption of internal policies.  These organizations are also encouraged to review their higher risk business units, and ensure that these units receive additional and sufficient attention.

Not surprisingly, the criteria from the Rules and the aforementioned bulletin appear in the CASL undertakings entered into since 2014.  To date, the CRTC has agreed to undertakings with Plentyoffish Media, Porter Airlines, Rogers, and Kellogg Canada.  These undertakings are filed at the Federal Court of Canada, and are accessible by the public. In each undertaking, the compliance measures adopted by the corporation are listed.  Although the lists vary based on the applicable circumstances, they include familiar requirements such as adequate policies and procedures, training, monitoring and auditing.

Some learnings are also seen from the recent CRTC compliance and enforcement decision, CRTC 2016-428, October 26, 2016, in which it found that Blackstone Learning Corp. ("Blackstone") committed nine violations of CASL.  In that case Blackstone did not take the opportunity to either provide guidance as to its efforts at due diligence and, in respect of its claim of implied consent under the conspicuous publication provisions under section 10(9) of CASL, failed to provide the CRTC with representations and provided no supporting information to the CRTC with respect to (a) where or how it discovered any of the recipient addresses, (b) when the addresses were obtained, (c) whether their publication was conspicuous, (d) whether they were accompanied by a statement indicating that the person does not want to receive unsolicited CEMs, or (e) how Blackstone determined that the messages it was sending were relevant to the roles or functions of the intended recipients.  In the absence of that detail the CRTC found that Blackstone had committed the violations.

The lesson is that the CRTC, when considering the due diligence defence, will focus on the specific requirements of CASL and each of the elements required for the applicable conduct that is being questioned.

As well, the courts' consideration of due diligence provisions of other legislative regimes offers guidance on certain common law norms.  For example, section 283 of the Canadian Environmental Protection Act, 1999, contains a similar provision to CASL, giving parties the opportunity to show that they "exercised all due diligence" to prevent the commission of an act. When applying this provision, the Court in R v Canadian Tire Corp, [2004] OTC 668, was unswayed by the "broadly-worded policy, proclamation of general philosophical objectives and reliance on an overall good prior record" put forward by the defendant.  After reviewing due diligence jurisprudence, similar to the result in the Blackstone decision, the Court held that due diligence had to be exercised in relation to the specific contravention to establish a section 283 defence.

Due Diligence in Practice

What these sources of guidance suggest is that a multi-faceted compliance program will likely be necessary to garner due diligence protection.  While a compliance program with some of these elements may be beneficial when negotiating an undertaking with the CRTC, the due diligence defence may require evidence of a coordinated and bona fide effort undertaken by the defendant to implement and adopt any such program.

For further information on developing and implementing a strong compliance program, as well as a comprehensive guide on CASL and its impacts on your organization, please visit Bennett Jones' Anti-Spam Learning Centre, or contact one of our CASL specialists.

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
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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