Supreme Court of Canada Confirms CASL is Constitutional

We previously wrote about the Federal Court of Appeal (FCA) upholding the constitutionality of Canada’s Anti-Spam Legislation (CASL) in two 2017 judgments, A-382-17 and A-383-17, 2020 FCA 103. Now, as of March 4, 2021 the Supreme Court of Canada (SCC) has dismissed an application for leave to appeal the FCA’s decision with costs.

Canadian Radio-Television and Telecommunications Commission (CRTC) Decisions

The appeals concerned the CRTC’s two decisions after a Quebec-based training company called CompuFinder challenged the constitutionality of CASL following receipt of a notice of violation of CASL from the CRTC.

The first decision (CRTC 2-17-367) claimed CASL fell outside the jurisdiction of the Federal Government and as such, it did not have the power to enact it. As well, the decision claimed that CASL violated the Canadian Charter of Rights and Freedoms. The CRTC dismissed these challenges and found that CASL fell within Parliament’s trade and commerce power and any Charter violation is justified.

The second decision (CRTC 2017-368) considered whether CompuFinder committed the violations asserted within the notice of violation. The CRTC determined that CompuFinder committed four violations of CASL and consequently imposed a $200,000 administrative penalty.

The FCA’s Decision

CompuFinder appealed the CRTC’s decisions to the FCA on June 5, 2020 and the FCA dismissed the appeal. In its decision, the FCA reached the same conclusion as the CRTC and held that CASL’s commercial electronic message scheme falls within Parliament’s jurisdiction to legislate concerning trader and commerce impacting Canada as a whole. The FCA also upheld the CRTC’s conclusion that CASL does not violate the Charter. Furthermore, the FCA concluded that there was no error in the CRTC’s finding that the commercial electronic messages failed to conform with the CASL requirements and CRTC regulations.

The SCC’s Rejection of Leave for Appeal

The SCC rejection for leave to appeal strengthens the FCA decision and signifies that it is unlikely that CASL can be challenged on constitutional grounds successfully.

Enforcement and Penalties

Since CASL came into force, the Federal Government has collected over $1.4 million dollars as a result of penalties. Businesses should continue to ensure that they comply with CASL practices and procedures to avoid fines and penalties.

Steps to Ensure CASL Compliance

The SCC’s denial of leave to appeal reaffirms the importance of ensuring that your organization complies with CASL and the costs that can result where non-compliant.

Organizations should ensure that they:

  1. Implement written CASL policies and procedures;
  2. Maintain ongoing auditing and monitoring mechanisms;
  3. Provide routine and adequate training for representatives sending communications;
  4. Promptly respond to and address complaints and questions concerning communications;
  5. Document the steps they take to address CASL-related concerns;
  6. Regularly assess whether they receive adequate consent for communications;
  7. Obtain formal, documented express consent where possible;
  8. Review and test the unsubscribe methods included in communications; and
  9. Seek legal advice before relying on exemptions in CASL or when incidents and investigations arise.

MLT Aikins has the right combination of legal and industry experience to help you navigate the information and privacy landscape to ensure that CASL requirements are met. Our legal team has specific experience in the areas of information technology and privacy law. We can assist your organization in implementing and improving its CASL Compliance Program. Contact a member of our privacy or information technology team for assistance.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.