CASL marches towards starting gate

November 13th, 2013 by Barry Sookman Leave a reply »

Earlier today I gave a speech at the 19th Annual Regulatory Compliance for Financial Institutions conference on the application of the OSFI B-10 Guidelines to outsourcing and cloud computing transactions. I came early to hear a presentation on CASL given by Kelly-Anne Smith, legal counsel at the CRTC.

In addition to providing an overview of some of CASL’s provisions and the CRTC regulations and guidelines, she provided some information about CASL that many have been wondering about including the following:

  • The Industry Canada regulations are final. They have been signed by the Minister and do not require any further approvals including by the Treasury Board. They will be published in final form in the Canada Gazette in about 4 weeks. They may also be available publically in about 2 weeks on the Justice Canada website.*
  • The Industry Canada regulations have “a lot of changes” from the last draft regulations. She has seen them and while they are still confidential, she did indicate that there was one change that those who have to comply with CASL “will be happy about”.*
  • CASL will come into force in 2014. The in force date will be disclosed when the regulations are finalized.
  • Industry Canada and the CRTC plan to release an FAQ to provide guidance on CASL when the regulations are published in the Canada Gazette.
  • The CRTC is planning to release several more information bulletins. One will be on corporate compliance. Another will explain how the CRTC plans to use its enforcement tools.
  • The CRTC is providing advice that existing express consents that meet the common law standards for express consent will continue to remain binding, until revoked, even if the consents were not obtained using the disclosure standards that will apply once CASL comes into force.
  • The first enforcement targets of the Commission will be the “nefarious” “egregious” offenders. It will also enforce CASL against “legitimate” businesses. The first step, however, will be to educate organizations about CASL. There is no intent to “hammer” legitimate organizations on “day 1”.
  • In answer to a question about whether CASL applies to charities including fundraising, Kelly-Anne Smith referred to the definition of “commercial activity” in CASL suggesting that the activity would be covered.

It will be quite an undertaking for organizations to determine what steps have to be taken to be CASL compliant. Organizations will not only have to interpret the Act, which is very ambiguously drafted, but also two sets of regulations, guidelines from the CRTC, joint guidance from the CRTC and Industry Canada, FAQs and the regulatory impact assessment statement (RIAS) in the Industry Canada regulations.

Many organizations had put their CASL compliance programs in limbo pending publication of the final Industry Canada regulations and the faint hope that there would be some legislative or regulatory CASL clemency to address the many objections organizations across the country have with it. It looks like those plans will have to be dusted off very soon. I suggest you start with reading this CASL FAQ.

* I received a call from the CRTC on November 14, 2013 indicating that information in the first two bullet points is inaccurate.
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