June 8th, 2017
A few weeks ago, my colleague Lucas Lung wrote in “Class Actions for Spam and Canada’s Anti-Spam Legislation’s Private Right of Action?” about the impending coming into force of Canada’s Anti-Spam Legislation (“CASL”) and the potential for class actions under that legislation. Specifically, section 47 of CASL, which was scheduled to come into force on July 1, 2017, would provide a private right of action for individuals affected by the contravention of sections 6-9 of CASL, section 5 of the Personal Information Protection and Electronic Documents Act, and section 74.011 of the Competition Act. Due to the relatively small amount of damages available to individual plaintiffs ($200 per contravention) he suggested that this cause of action would be particularly amenable to class proceedings. Lucas’s article identified a number of issues that would need to be clarified in the new provisions of CASL that would need to be determined by the court through litigation of the provisions.
It appears that Cabinet agrees that certain issues need further clarity, but disagrees that this should happen in the courts. Yesterday, by Order in Council, the federal government announced that it was delaying the coming into force date of section 47 of CASL providing a private right of action until the completion of a parliamentary review “in order to promote legal certainty for numerous stakeholders claiming to experience difficulties in interpreting several provisions of the Act while being exposed to litigation risk.”
That said, CASL is not being repealed, and most of its provisions still apply. Still, yesterday’s announcement means that class actions lawyers on the plaintiff and defence side will have a brief reprieve while the government conducts its review. We now wait and hope for guidance flowing from the parliamentary review about the interpretation of section 47, the applicability of the private right of action it provides, and the availability of class proceedings under that section in cases of commercial electronic transmissions sent and received without consent
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