Canadian Lawyer InHouse

a roundup of legal department news and trends Six months to prepare for 'overkill' CASL I t's been three years in the making but businesses now have less than six months to prepare for Canada's Anti-Spam Law, which will take effect July 1, 2014. Final regulations for CASL were released Dec. 4 with exceptions for charities, third-party referrals, and political parties, and a delay to when private right of actions can happen (which will facilitate lawsuits). That means compliance planning should go into high gear now even though many businesses will likely need more clarity on what they have to do and when, says Michael Fekete, a partner with Osler Hoskin & Harcourt LLP in Toronto. "Complete your gap analysis if you haven't already and put compliance planning at the top of the agenda," says Fekete. "What makes matters worse is we expected nine to 12 months lead time before coming into force and it's going to be a mad dash for many companies. What's frustrating too is we're still waiting for guidelines from the CRTC mentioned in the regulatory impact statement. It is such broadly drafted legislation that even the scope of what's covered and what's not covered is open — a key issue we said they needed to address. "Although we've known about this law for three years you can only take compliance planning so far," says Fekete. "The devil is in the details and we don't have all the details yet." Changes will need to be made to company databases with regard to what data is collected and retained and message templates will need to be changed, which can be done now. The guidelines will hopefully further clarify what is required, but Fekete says there is "no longer the luxury of waiting to see how things are going to work out through the regulations." The law, which addresses the sending of commercial electronic messages, does now reflect a change in deadlines for unsolicited installation of computer programs and software, now pushed to Jan. 15, 2015 (most other countries in the world don't address this) and private right of actions will be delayed until July 1, 2017. The private right of action delay was brought in to "avoid mass class actions being brought against organizations given 6 February 2014 INHOUSE they want to give the CRTC time to understand and implement the law before the courts have to apply it," says Tricia Kuhl, an associate with Blake Cassels & Graydon LLP in Montreal. But Kuhl notes while the pressure is on for companies to comply by July, the government has indicated it will "go after bad actors first — the real spammers, the really egregious ones." The fact private right of actions was delayed is "significant," says Sanjeev Dhawan, senior legal counsel with Hydro One Networks Inc. "I think most organizations are not ready for this. It gives people time to respond to the seriousness of this act. I thought the private right of action would have been a burdensome obligation on organizations. I thought that was a significant concession at this point." Dhawan also points out the legislation con- A tinues to require an "opt-in" from consumers when it would have been easier to "opt-out" as most other jurisdictions have. The cost to business, he says, will be significant. "The compliance costs are going to be staggering. Do we really need this as the economy is only beginning to recover? It's targeting commercial messages but that's not spam," says Dhawan. The legislation will challenge the ability of small and medium-sized businesses to comply with a further level of regulation. Even though the government claims the regulations have exceptions for small business, it doesn't clearly spell out what they are, says Steve Szentesi of Steve Szentesi Law Corp. in Vancouver. He calls the law "overkill." The penalties for CASL are stiff. If your organization is deemed to have sent nonconsented electronic messages it can mean up to $1 million for individuals and $10 Chief justice dissents, but employee prevails in IBM pension case fter a five-year battle, a British Columbia man can keep his pension benefits and damages awarded after his former employer, IBM Canada Ltd., challenged a lower court decision all the way to the Supreme Court. In a 7-2 decision the Supreme Court of Canada in December dismissed an appeal brought by IBM in IBM Canada Ltd. v. Waterman which looked at whether pension benefits received by Waterman during his wrongful dismissal notice period should be deducted from his damages award. "This means older workers can breathe a sigh of relief that they won't be summarily dismissed and forced to take their pension," says Clio Godkewitsch, an associate with Koskie Minsky LLP. "It's the correct decision and it affirms the law at least in Ontario that we have understood forever that pension benefits are a form of deferred compensation," says Godkewitsch. "It shouldn't be such a shocker to employers. This doesn't change anything for employers but it's always good to have the highest court in the land give its nod of approval to the existing law." Richard Waterman was employed by IBM (U.K.) Ltd. and then IBM Canada for more than 40 years as a software services specialist before being terminated at the height of the recession in 2009 — without cause and with two months notice. When his employment ended, he was 65 and eligible to receive benefits under IBM's employer-funded pension plan. He had no intention of retiring, declined the severance package offered by IBM, and sued for wrongful dismissal. Following a summary trial, he was awarded damages in the amount of $93,305.32, based on a reasonable notice period of 20 months. After termination, he received a pension benefit of $2,124.25 per month as per the company's defi ned-benefit pension plan. The trial judge held that the appropriate

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