As mentioned in our October 2016 Bulletin, a private right of action for persons alleging they have been affected by a CASL contravention comes into effect on July 1, 2017. Though Canadian businesses have been (somewhat perilously) navigating CASL since it first came into force in July of 2014 (see Kellogg), this private right of action will add a brand new layer of exposure and concern.
Of particular concern is the anticipated groundswell of class actions that are expected to begin shortly after July 1st. As remedies can include compensation for losses incurred as well as specific amounts for specific CASL violations, a class action could have a devastating impact, especially factoring in the cost of litigation and reputational damage. Further, as CASL provides for the personal liability of officers and directors of a company, private actions could be brought against officers and directors personally.
Though the private right of action is a development that must be taken very seriously, it is important to note that there is a due diligence defense that can be utilized when caught in CASL’s crosshairs. Though CASL does not articulate what constitutes such due diligence, in examining the voluntary undertakings that have been entered into by organizations to date, one can deduce that a strong CASL Compliance Program, consisting of written policies and procedures, training, and audits to ensure internal practices align with those policies and procedures, are key. As well, in light of recent CRTC Guidance, it is critical to maintain proper records or proof of consent.