CASL - no private right of action but changes to implied consent rules

June 28, 2017 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: Canadian Charity Law, Fundraising Guidance for Registered Charities, Transparency

There were supposed to be 2 important changes taking place on July 1, 2017 with Canada’s anti-spam legislation (CASL).

The first was a new “private right of action” for individuals to sue businesses and charities if they received commercial electronic messages without consent.  This could have resulted in punitive damage awards even for innocent mistakes.  The Government of Canada announced on June 7, 2017 that is has indefinitely suspended the private right of action.  We covered this change in our blog "Canada suspends part of CASL relating to “private rights of action” but rest applies to charities"

Another important change of July 1, 2017 that appears to be coming into effect relate to some transitional consent requirements.

As you know implicit consent under CASL can be established by an existing business or non-business relationship. The definition of these relationships under CASL have certain time limitations attached to them. For example, an existing non-business relationship refers to a relationship arising from:

However, CASL provided a three-year transition period  for implied consent during which the time limitations did not apply. During this 3-year period, a charity could contact anyone who made a donation to it, regardless of how long ago it was, under the implied consent provisions if those individuals did not withdraw their consent.

As of July 1, 2017, the time limitations will apply such that if a charity wants to send a CEM and is relying on implied consent, for example it may only contact individuals who made a donation within the last 2 years.

Again, although CASL will apply to charities that are sending CEMS, there is an exemption for charities where the primary purpose of the message is to raise funds for the charity.

Irrespective it is important that those sending emails that could be considered commercial electronic messages are aware and comply with the CASL requirements.

Do you require legal advice with respect to Canadian or Ontario non-profits or charities?


Charity Lawyer Mark Blumberg

Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.
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