Canada: Are You Ready For CASL's Private Right Of Action?

The controversial private right of action included in the legislation colloquially called Canada's Anti-Spam Law[1] (the "Act" or "CASL"), comes into force on July 1st of this year. The private right of action will enable the commencement of civil proceedings against persons that are alleged to be in contravention of certain provisions of CASL, PIPEDA or the Competition Act. While the legislation initially came into force in July of 2014, it included a three year delay for the provisions that empower individuals to commence private claims.

Although it is possible that individuals will utilize this right of action to commence traditional sole-plaintiff claims, the bigger risk to organizations is the potential for class action lawsuits.

This bulletin provides a quick overview of the private right of action, as well as steps that organizations should take to reduce and mitigate risks.

The Private Right of Action

The private right of action will allow individuals to seek financial relief from the court for various violations of CASL, PIPEDA or the Competition Act. Specifically, CASL permits an individual to claim damages in circumstances where:

1. they have been impacted by a breach of the provisions of CASL that prohibit:

a) transmission of commercial electronic messages;

b) rerouting of commercial electronic messages;

c) installation of a computer programs; or

d) participation or promotion of any of these prohibited activities.

2. they have been the target of false or misleading electronic messages under the Competition Act; 

3. their electronic address has been obtained through data mining without their consent; or

4. their personal information has been obtained through accessing a computer system without authorization under PIPEDA.[2]

Financial Exposure to Breaching Companies

CASL allows the court to order those who breach the Act to compensate individuals for any losses or damages suffered as a result of the breach, including for any expenses incurred. The court also has the authority to award an additional non-compensatory amount of up to $200 per violation, to a maximum of $1,000,000 per day (the "Statutory Damages").[3]

Since the actual losses resulting from violations of the anti-spam provisions in CASL are likely to be low in the vast majority of cases, the Statutory Damages are of particular significance because they dramatically increase the potential for material awards against offending organizations. For example, at $200 per contravention, sending 5,000 commercial electronic messages per day, in a manner that violates CASL, could lead to the maximum Statutory Damages of $1,000,000 per day.

The legislation sets out a list of prescribed factors that a court must consider in determining the appropriate amount of Statutory Damages to award, including:

1. the purpose of the order;

2. the nature and scope of the contravention;

3. history of any previous contraventions and undertakings;

4. any financial benefit the business obtained from the contravention;

5. the offender's ability to pay the total amount ordered;

6. whether the applicant received compensation; and

7. any other relevant factor.[4]

There remains an open question as to whether courts will be inclined to order payment of the maximum possible Statutory Damages, given that the express purpose of an order under the Statutory Damages provision of CASL is to promote compliance with the Act, and "not to punish" organizations.[5]

Liability under the private right of action provisions may also extend to corporate officers and directors that have directed, authorized, assented to, acquiesced in or participated in the commission of the offensive conduct.[6] The Act also permits applications to be brought against directors and officers even where the company has not itself been named.

Possible Defences

The only statutory defence expressly provided for in CASL is due diligence. The Act provides that a person cannot be found to  have committed a contravention of the relevant provisions of the Act if they exercised due diligence to prevent the breach.[7]

The Act also imports common law defences that may justify or excuse breaches in the circumstances.8

Limitation on the Private Right of Action

There are certain limitations on the ability of an individual to seek redress for alleged breaches of the Act.

An individual is not permitted to apply for relief for a breach that has already been addressed through another enforcement action under CASL.[9]

The private right of action also has a limitation period of three years after the day on which the alleged breach became known to the applicant.[10]

Implications and Takeaways

The private right of action under CASL could prove to be a significant basis for class action litigation and it is widely expected that its coming into force will give rise to a new surge of lawsuits. In the US, the Telephone Consumer Protection Act similarly established a private right of action for individuals who receive telephone calls, texts, or faxes that they did not consent to receive and multiple class actions have been contemplated and commenced against US businesses as a result of such legislation.

Those who are alleged to have violated CASL face significant financial exposure under the Act itself, in addition to the potential legal costs associated with defending a class action lawsuit. Given the high number of emails many businesses send out in a day, it is easy to see how damages can quickly multiply. While it is impossible to eliminate the risk of being named in a civil application under the Act, a thorough review of organizational policies and procedures to ensure that they comply with CASL is likely to reduce an organization's financial exposure to costly damage awards. In addition, it is important to ensure that employees receive proper training on complying with CASL, and that they are periodically reminded of key principles, as breaches of the Act are often the result of human error.

Good advice for all businesses is to comply with CASL today to keep the class actions away!


[1] An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

[2] CASL, s. 47(1).

[3] CASL, s. 51(1).

[4] CASL, s. 51(3).

[5] CASL, s. 51(2).

[6] CASL, s. 52.

[7] CASL, s. 54(1).

[8] CASL 54(2).

[9] CASL, s. 48(1).

[10] CASL, s. 47(2).

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2017

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sharon E. Groom
Lyndsay A. Wasser
Rohan Hill
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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