There are few businesses who would disagree that Canada's
Anti-Spam Law (CASL) is complex and can be confusing. Core
prohibitions are extremely broad but equally are exclusions that
were put in place by Industry Canada to respond to the substantive
feedback received once the Canadian business community began to
really assess how to comply with the law.
The Canadian Radio-television and Telecommunications Commission
(CRTC) has issued press releases and a decision in respect of its
enforcement action under CASL. That information has helped
businesses to see some issues of concern to the CRTC but has not
addressed the deeper legal issues of how to interpret the
provisions of CASL and especially the exceptions.
The CASL bar has looked for cases where a party might dispute
aspects of the enforcement of CASL so that we could learn how a
court would approach this legislation. We do not have a court
decision in this context, yet, but a court of superior jurisdiction
has considered provisions of CASL in the context of a request for
injunctive relief claiming violation of CASL by sending unwanted
Bejm v. Law Society of British Columbia, 2015 BCSC 169,
is a decision of the British Columbia Supreme Court in
circumstances where the petitioner was seeking to prohibit the
respondent law society from sending emails to him. The issue began
as the law society sent email messages to the Mr. Bejm, who is not
a lawyer, and asked him to sign an undertaking not to breach the
unauthorized practice provisions of the Legal Professions
Act (BC). The messages were sent via a social media service,
The court noted that the petition of the law society against the
Mr. Bejm was not before the court and that what Mr. Bejm sought was
a collateral attack, namely, that the law society had no authority
to investigate unauthorized practice of law and, secondly, that
sending messages that he had not requested was contrary to CASL and
should be prohibited.
The court readily found that the law society's
responsibility to uphold and protect the public interest in the
administration of justice included the regulation of the practice
On the second issue of non-compliance with CASL the court
" The second issue raised by Mr. Bejm is an alleged
breach of the federal Anti-Spam Act. I need not go into
that in great detail. However, it is clear that the legislation
does not apply to the contact made by the Law Society with Mr.
Bejm. First, I doubt very much that the emails meet the definition
of "commercial activity" or the definition of
"commercial electronic message" contained in the
Anti-Spam Act. However, even if they do, it is quite clear
that the Law Society's emails fall within exceptions to the
Anti-Spam Act. Section 6(5)(b) and (c) exclude messages
that are sent to a person who is in a commercial activity and
consist only of an inquiry or application related to that activity.
That appears to be what the Law Society has done here.
 Furthermore, s. 3 of the Regulations to that Act provides
that s. 6 of the Act, which deals with commercial electronic
messages, does not apply to a message that is sent to a person:
to satisfy a legal or juridical
to provide notice of an existing or
pending right, legal or juridical obligation, court order, judgment
to enforce a right, legal or juridical
obligation, court order, judgment or tariff, or
to enforce a right arising under a law
of Canada, of a province or municipality of Canada or of a foreign
The emails from the Law Society may fall within all four of
those subsections, but certainly fall within subsections (i) and
Importantly the court was not troubled by the broad and circular
definition of "commercial electronic message" under CASL
and importantly found that an exploratory message sent to a person
promoting a business was exempt under sections 6(5)(b) and (c) of
CASL. The analysis suggests that the conditions on this exemption
are only that the recipient is "engaged in a commercial
activity" and that the message is "an inquiry or
application related to that activity".
This is a broad reading of this exemption and should give
comfort to others who approach those conducting a "commercial
activity" with a message that is "an inquiry or
application related to that activity".
We will see how future courts deal with these provisions and how
they will give life to them.
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