Mortgage Broker is the magazine of the Canadian Mortgage Brokers Association and showcases the multi-billion dollar mortgage-broking industry to all levels of government, associated organizations and other interested individuals.
Issue link: http://digital.canadawide.com/i/354755
40 | summer 2014 mbabc.ca MORTGAGEBROKER legalease interpretation of the legislation and regulations but the bulletins only address select issues, are for guidance only, and have no force of law. eir limited value is in providing some suggestions that, used with care, may be helpful in understanding the legislation. CASL applies to all CEMs e legitimate target of CASL is spam yet CASL covers all CEMs, subject to specified and narrow exclusions and exceptions. e threshold as to what constitutes a commercial message is far too low. Any electronic message which has as even one of its purposes (it would appear no matter how trivial) to encourage the receiver to participate in a commercial activity is a CEM. is approach ignores the fact a true spammer is unlikely to indiscriminately send emails (or other CEMs) having a primarily social purpose and only a minimal commercial purpose. In fact the non-spammer may be communicating with friends he has not seen for some time to advise of a new business he has started. e recipients of such communications are likely to recognize the sender's name and welcome such news. To further demonstrate the extreme approach taken by CASL, consider that an emailed newsletter which has no commercial purpose but which contains a hyperlink to an advertisement is a CEM. Such an electronic communication is hardly the type of communication which most receivers would consider spam, certainly not the type of spam containing the ills put forward to justify enacting CASL. CASL does provide exceptions for some categories of communications. ese exceptions are very narrow. For example, while there is an exception, under very limited circumstances, for communications between specified family members, siblings do not qualify for the exception. ere is also an exception for communications between people with a personal relationship but old friends who have not communicated for some time do not qualify for the exception. Again, would siblings and old friends conclude they received spam if they receive a primarily social letter which has even one commercial purpose (e.g. having started up a mortgage brokering business)? Are friends and family oen not the starting point for building a broader business network? Obtaining consent is too onerous CASL does allow sending CEMs to people who have consented to receive them. e circumstances in which CASL recognizes consent are too narrow and obtaining consent is too onerous. As you must have consent before sending a CEM and CASL provides that a CEM asking for consent is itself a prohibited CEM, obtaining express consent from people who have either not initiated the contact or had communication in a non-electronic manner becomes virtually impossible. e premise for not allowing the initial email requesting consent is somewhat understandable as allowing the sending of an email to ask for consent could open the floodgates for people spamming by asking for consent. Perhaps this could be addressed by a more relaxed requirement for the first email. For example, perhaps the initial email could be restricted to asking for consent and providing identifying/contact information together with the most limited description of the type of information the person would like to be able to send (e.g. mortgage rates and products, furniture sales information, or show tickets available for sale). Not allowing an email requesting consent ignores how many businesses, including mortgage brokering businesses, build their clientele. Consumers will potentially be deprived of useful information to inform their decisions. CASL does not recognize implied consent unless it fits a few narrow categories. e term "implied" needs to be used in its broadest context meaning where all circumstances are considered to determine if it is reasonable to conclude that consent was present. Alternatively there needs to be a category of inferred consent where the conduct of the parties is such that a reasonable person would conclude there was consent. How would including such a category increase true spam? By restricting the sending of a CEM to a person from whom there is an inferred consent, the government may unreasonably be infringing on the freedom of expression guaranteed to individuals by the Charter of Rights and Freedoms (the most supreme law in the nation). Excessive burden of compliance Complying with CASL could be more of a financial and stressful burden than dealing with spam ever was, particularly for law abiding small businesses that have not and would not have sent spam even in the absence of CASL. ey are faced with the burden of incurring costs to understand the requirements; to have their technology and processes designed to request, file, and track consents; to train staff; and, to pay for any consequences should they be found to have breached any requirements of CASL. is is particularly so given the burden of proving consent rests with the person who claims to have had it and because CASL requires maintaining proof of obtained consents.