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27 canadianlawyermag.com/inhouse june 2014 blindly sending out e-mails, he added. So, for the most part, the organization had already been obtaining opt-in consents; it's currently confirming it has those consents and ensuring its database is accu- rate going forward. It's also developing a compliance program and providing compli- ance training to those affected by CASL. "We're focusing on if we need to get express consent, if we need to send out those messages," says Lau. "We are in pret- ty good shape but always (looking out) for potential gaps." For non-profits, those gaps come with potentially heavy penalties. "The penalties are the same as the penalties for business — there's no distinction (between) fines that can be levied, so potentially a charity that operates as a corporation could be exposed to a $10 million fine," says Prendergast. "I don't think that will ever happen but the potential is there for the same penalties to be doled out against charities as a big monolith." The act itself gives discretion to the court in fixing the fines and asks them to take into consideration that the fine is there to encourage compliance and not to strictly punish, said Carron. And due diligence is a defense. That's different than a repeat offender, she added. The CRTC is setting up a complaints bureau, which will be manned to collect complaints from the public. And it will note if it's getting multiple complaints from the same organization. The chance of non-profits being the first group to be targeted is probably pretty low, says Sookman. "In theory they run the risk of fines. In practice I think the CRTC is going to leave them alone," he says. But it puts these organizations in a situation where they have to decide what to do — make a decision to carry on their activities illegally or spend some of the little money they have on trying to be compliant and developing a due diligence program. "Nobody has the time or inclination to worry about CASL so it's going to be breached in practice," says Sookman. And it makes no sense to have a law that's serving no useful purpose that people are going to breach, he added, or one that has them worrying about whether they're conducting legitimate activities. "There's no good reason for it," he says. "When you think about charities and non-profits, they are not the kinds of organizations that we're concerned about (with) spam." The government could easily have ex- empted non-profits and it wouldn't have undermined the purpose of the legislation, says Sookman. Indeed, many other coun- tries have developed anti-spam laws with "carve-outs" for charities and other non- profit organizations. "It's a bad policy choice at a time when governments have little extra money to help non-profits and charities, to add an extra administrative burden and make it more difficult to do their jobs," says Sookman. Most organizations now have spam filters and 99 per cent of that is blocked anyway, he added. "The reality is that (CASL) is addressing a problem that largely doesn't exist anymore, so it's a huge sledgehammer to cover a problem . . . (where) there's a tech- nological solution that can deal with it." IH From one team of professionals to another, when you or your clients are talking audit, tax and advisory solutions, the right counsel is essential. With offices from coast to coast, Collins Barrow professionals offer you the insights and opinions you need, combined with objective, actionable advice, to help maximize opportunities in virtually every area of business. For clarity you can call to the stand, call Collins Barrow. Expert testimony shows The motive is clarity collinsbarrow.com ntitled-3 1 14-04-25 9:28 AM

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