Canadian government delays availability of class actions under Canada’s anti-spam law

Companies have won a reprieve that prevents class action lawyers from launching lawsuits over alleged breaches of Canada’s anti-spam law.

Canada’s anti-spam legislation (CASL) was passed by Parliament back in 2010, but the federal government has been bringing various parts of the law into force in stages.

The third and final set of those provisions was supposed to enter into force on July 1, and they would have set up a statutory regime under which class action lawyers could sue companies for breaches of the law.

But a cabinet order dated June 2 indefinitely repeals that July coming-into-force date so Parliament can examine the legislation.

Barry Sookman of McCarthy Tétrault LLP in Toronto, who has repeatedly criticized CASL as deeply flawed, said he is happy with the suspension.

“There is a commitment to listen to what we are saying and to fix CASL if it needs to be fixed,” he said in an interview.

On Twitter, University of Ottawa law professor Michael Geist chided the Federal Liberal government for halting the rollout because the Liberals voted for the legislation in 2010 while they were in opposition, he said.

“Government apparently caving to lobbying pressure by delaying anti-spam right of action,” he said in a tweet.

The law has already given regulators, such as the Canadian Radio-television and Telecommunications Commission, the power to bring administrative cases against companies.

Introducing a “private right of action” would give members of the public the right to sue companies, too. As a practical matter, the most efficient way for that to happen is through the filing of class action law suits.

Because CASL has been around since 2010, corporate lawyers have already spent a long time advising clients on how to comply with the law. They’ve long complained that even companies with the best of intentions can run afoul of the law and expose themselves to sanction from federal regulators. Tossing potential class actions into the mix would add to those legal bills.

At a gathering of the Canadian Corporate Counsel Association in Toronto last April, one in-house lawyer described plaintiff-side class action lawyers as “counting their sleeps” until July 1.

“I can pretty much guarantee you that there’s no one in the room who complies with CASL today. It is a horrible, pervasive, invasive piece of legislation that ought to keep you awake at night,” said Peter Clausi, general counsel with GTA Resources and Mining Inc.

Financial Post

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