JULY 2017
6
INHOUSE
News Roundup
T
he federal government issued an
Order in Council June 7, delaying
the coming into force date of the
private right of action under Canada's Anti-
Spam Legislation until completion of a par
-
liamentary review "in order to promote legal
certainty for numerous stakeholders claim-
ing to experience difficulties in interpreting
several provisions of the Act while being ex-
posed to litigation risk."
"I heard through the grapevine three
weeks ago and I didn't believe it — I thought
it was too last minute," says Eloïse Gratton,
partner and national co-leader of the privacy
and data protection practice group at Borden
Ladner Gervais LLP.
Sources indicate the Retail Council of
Canada sent a notice to members signalling
the Order in Council was expected soon.
"Canadians deserve to be protected from
spam and other electronic threats so that
they can have confidence in digital technol
-
ogy. At the same time, businesses, charities
and other non-profit groups should have rea-
sonable ways to communicate electronically
with Canadians. We have listened to the
concerns of stakeholders and are committed
to striking the right balance," said Navdeep
Bains, Minister of Innovation, Science and
Economic Development in a press release.
"If they are delaying it, that's definitely
good news for businesses. A lot of them have
been struggling in the past few months to
make sure they are complying with CASL
in light of the two changes that will be com
-
ing into force — the private right of action
as well as the end of the transition period,"
says Gratton.
Inga Andriessen, founder of Andries-
sen & Associates, says the big message that
will need to get out is that CASL hasn't been
repealed. "CASL is still going to be in place.
The government can still fine you the same
way as they could before, but the good news
is nobody is going to be suing you in court
for any violation of CASL. If anything, it's a
time to really take a look at your CASL poli
-
cies and make sure you're still compliant or
get compliant if you weren't before."
The government ought to be taking a
"very careful review" of CASL to find out
what is working and what isn't working and
determine whether CASL is really serving
its purpose in a way that is respectful of the
needs of all stakeholders, says Dan Glover,
partner with McCarthy Tétrault LLP.
"It's the only sane decision the govern
-
ment could have made," says Glover. "With
the private right of action, the really, really
dangerous aspect of it is that it allowed for
the combination of individual actions into
class actions with extraordinarily high pen
-
alties that had nothing to do with actual
harm. If you look at the language of the pri-
vate right of action, it's a statutory penalty
up to $1 million a day.
"The prospect for class actions that don't
actually connect to the guiding purposes of
CASL just doesn't make sense and doesn't
promote the goals of a more confident digi
-
tal economy," adds Glover. "What would
happen is people would basically take the
most conservative route to communicating
with the public out of fear."
CASL first came on the scene with anti-
spam provisions in July 2014, with a three-
year transitional period planned for com
-
mercial electronic messages. In January
More women general counsel showing up on
Canadian public boards
M
ore women general counsel are landing positions on Canadian public boards
compared to their male counterparts, according to a report on opportunities for
legal professionals on boards.
Of 2,288 board positions in Canada in 2016, 35 general counsel held 44 board positions.
Of those, 26, or 59 per cent, of the board positions held by GCs were women (six women
each occupy two board positions) and 41 per cent were held by men. That's up from 2015
when 45 per cent were held by women GCs, according to the "Blakes Board Report:
Opportunities for Women General Counsel: The Canadian Public Company Landscape for
Legal Professionals on Boards."
In fact, the report shows women GCs have achieved and exceeded gender parity on board
representation, which does not exist among lawyers in general (where women hold 23 per
cent of board positions) or board members generally (where women hold 20 per cent of
board positions).
In late 2016, Blake Cassels & Graydon LLP initiated a study to look at the involvement of
general counsel and lawyers on the board of directors of Canadian publicly listed companies
that comprise the S&P/TSX Composite Index. The results are based on 2016 proxy data that
includes key fields such as board member name and biography, current employer ad title and
company industry classification.
Most of the board positions held by women GCs are in banking, insurance and the energy
sector — all very regulated industries where GCs would have considerable experience in
areas attractive to boards.
Last year at this time, Trudy Curran, former GC of Canadian Oil Sands, decided she was
moving on from the GC role and began pursuing board positions.
At the time, Curran said it was a natural progression for a GC like herself, motivated to
expand learning and skillsets, to seek out board positions.
"In my view, the move is to take the next step and apply my skills in a board-director context.
I think if you're a general counsel, you're used to not being the boss and, therefore, more apt to
take into account other people's views and have a consensus-building approach," she says.
Today, Curran serves on three boards: Baytex Energy Corp., Dominion Diamond Corp.
and the Alberta Securities Commission. She is also on the Kids Cancer Care Foundation of
Last-minute reprieve as feds suspend controversial
private right of action provision in CASL
