Is CASL Private Right To Action Retroactive?

I’m glad Shaun Brown of nNovation, LLP his thoughts on this – it is something I’ve been wondering (and I’m sure many others have too) since the Canadian Anti Spam Law (CASL) first came into force (July 2014).

The LawThe gist of the scenario is this:

CASL is in effect as of July 2014 – now the CRTC and Industry Canada can bring actions (undertakings) and generally enforce the law.  Private right of action for Canadian citizens comes into effect in July 2017.  So… can Canadian citizens simply start to collect and stockpile inbound spam to their accounts now, and on the first day private right to action is in effect, take that pile and the sender to court for big bucks?

Shaun gets to the core of it, looking outside of the language of CASL itself, which is a bit inconclusive – and more broadly looking at statutory interpretation Canadian law.  For example he says:

According to the “modern principle” of statutory interpretation, which has been referenced by the Supreme Court on numerous occasions, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament“.  Looking at the broader context and intention of the government, it is clear that the purpose in delaying the private right of action was so that it could not be applied to alleged contraventions occurring before July 1, 2017. A finding to the contrary would  defeat the purpose of delaying the private right of action in the first place.

So – a leaning towards the idea that private citizens can’t file complaints on those stockpiles of spam.  However, those piles of spam are likely going to allow those private citizens to have key targets – and assuming the spam continues to arrive, they should have sufficient complaint at some point based on messaging evidence occurring *after* private right to action is in effect.

For more on Shaun’s thoughts and analysis, see his post : Is the private right of action under CASL retroactive?

What do you think?

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