This is part five of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.
Following the Compu-Finder penalty levied in early 2015 (to be walked back in 2017), CASL goes on a tear, dropping AMPs left and right. 7 out of the 15 total AMPs issued under CASL come from these two years.
We’re going to set aside one of them as particularly relevant to my interests (education space), and zip through some of the others:
March 25, 2015:
$48,000 AMP levied against “Plentyoffish Media”, a dating site. I’m not sure why people would want to date folks who are plenty offish, but there y’go. There was no question about consent here — CEMs were only sent to registered subscribers — but with no evident, or a non-functional, unsubscribe mechanism. This, along with a compliance program, seems to have passed without any re-evaluation or follow-up.
Issued penalty: $48,000
Final penalty: $48,000
Total issued AMPs: $1,148,000
Total imposed AMPs/monetary penalties: $248,000
Differential: $900,000
June 29, 2015:
$150,000 AMP levied against Porter Airlines, a small carrier. CEMs were sent to people without Porter being able to furnish any proof of consent. Some messages were sent without contact information, and others without “clear and prominent” unsubscribe information. Again, this plus a compliance program seems to have landed with no further appeals or follow-up.
Issued penalty: $150,000
Final penalty: $150,000
Total issued AMPs: $1,298,000
Total imposed AMPs/monetary penalties: $598,000
Differential: $900,000
November 20, 2015:
$200,000 monetary compensation paid by Rogers Media, a telecommunications giant. There were flawed unsubscribe mechanisms in emails they were sending, some unsubscribe requests were not acted upon within 10 days, others did not have an unsubscribe address that was valid for a minimum of 60 days after the message was sent. This, with a compliance program, landed without appeals or follow-up. The financial penalty is framed as “monetary compensation” rather than an “administrative monetary penalty,” with no further explanation.
Issued penalty: $200,000
Final penalty: $200,000
Total issued AMPs: $1,498,000
Total imposed AMPs/monetary penalties: $798,000
Differential: $900,000
September 1, 2016:
$60,000 monetary compensation paid by Kellogg Canada Inc., a food company. It, or authorized third parties, sent email without consent. This, with a compliance program, landed without appeals or follow-up. The financial penalty is framed as “monetary compensation” rather than an “administrative monetary penalty,” with no further explanation.
We’re going to unpack this more in the next post, as I’m very interested in education-space developments here, but in a nutshell, lots of email without proof of consent. The notice of violation (which was issued on January 30, 2015, but doesn’t seem to be available online) sent to Blackstone set out an AMP of $640,000, but the decision lowered it to $50,000.
Issued penalty: $640,000
Final penalty: $50,000
Total issued AMPs: $2,192,000
Total imposed AMPs/monetary penalties: $908,000
Differential: $1,284,000
December 14, 2016:
$100,000 AMP issued against Brian Conley of Couch Commerce/nCrowd, an online deals website. We’ll discuss this in detail when we get to 2019 and the final CRTC decision. Note that the link above goes to the final 2019 decision — Enforcement action 9090-2015-00414 (the 2016 notice) isn’t available, and the CRTC’s table of decisions links to the 2019 CRTC decision rather than the enforcement action.
The timing here is important, for reasons we’ll get into in our 2017-18 anthology including Conley’s case.
We’ll be back to look more in depth at Blackstone, and then get back to reviewing other CASL decisions.
This is part four of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.
As we get into cases resulting in AMPs,1Administrative Monetary Penalties – check the terminology post for more acronyms! if there’s a theme here, I think it will be in establishing a prism of views on CASL: its effectiveness as a practical deterrent, its effectiveness as an educational tool, and how the marketing of CASL reflects the government’s (and our) view on the value of spam control vs. the panoply of other issues facing society today.
As somebody in marketing at the time, it’s hard to underestimate how vaguely scary CASL was for people who relied on email for marketing. The day CASL came into force as also _my_ first day on the job in higher ed marketing, having transitioned from almost a decade in for-profit marketing work, mainly in the pharma / CPG / health product sectors.
So I was cutting my teeth in higher education, a sector with a heavy reliance on email marketing, while CASL took shape. My higher ed marketing career has evolved concurrent with CASL, and it’s interesting to look at how my own views on it have evolved.
The following captures the anxiety and situation well just before the law came into force:
“When CASL comes into force on July 1, 2014, it will be one of the most demanding laws in the world dealing with CEMs. The requirements that recipients specifically opt-in to receiving CEMs and CASL’s classification of electronic requests for express consent CEMs themselves, combined with the potentially enormous financial penalties for breaching the legislation make CASL particularly daunting for businesses sending messages to or from Canada.
It is impossible to know at this point how strictly CASL will be enforced, and the severity of fines that will be issued for infractions.”2Jennifer Birrell, Emond Harnden LLP, Legislation to be Aware of: PIPEDA, Anti-Spam, Non-Discrimination, Harassment, Accessibility for Ontarians. https://www.canlii.org/en/commentary/doc/2014CanLIIDocs33375
Moving from that quote alone, we have a few areas for follow-up:
how closely is the requirement that recipients specifically opt into CEMs followed?
what are the financial penalties that have been levied, and have they been followed through on?
has the legislation worked, in the raw sense of whether or not spam is in fact being curbed?
The latter question is at least answerable through statistics — see this earlier post.
The straightforward answer to “Did CASL work?” depends on how you define its goal. We can start with the stated purpose from the Act itself:
Purpose
Purpose of Act
3 The purpose of this Act is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct
(a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;
(b) imposes additional costs on businesses and consumers;
(c) compromises privacy and the security of confidential information; and
(d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.3An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23), section 3
“CASL hasn’t stamped out spam, and complaint rates remain relatively consistent, so it is not successful” is a defensible position, but per the Act itself, it is achieving its purpose as stated: to regulate commercial conduct and discourage communications that do a number of things that amount to what we think of as spam.
And even from the jump, reaction to the Act was mixed at best.
It’s also worth noting that the organization that enforces the law is also the one that gathers the complaints.
Which makes sense: the police get calls about people breaking the law, and enforce the law. The fire department gets the calls about fires and then puts out the fires. There’s no disconnect in the process, but it does leave a certain amount of latitude in terms of letting one body both define the problem and attempt to resolve it.
As mentioned in the statistical breakdown, the ratio of complaints to actions — be it requests for information, warnings, or eventually compliance actions — is immense. And the number of actual decisions is small, and the number of AMP penalties even smaller.
Small enough that one person can look at each of them in turn. We’ll start with one that got national headlines at the time: back in 2015, a $1.1 million AMP levied against Compu-Finder.4It’s spelled “Compu.Finder” in the header of the CASL decision, “CompuFinder” in the body of that decision, and “Compu-Finder” in the PIPEDA investigation referenced below – for the sake of consistency, we’ll be using “Compu-Finder”, which is how the company referred to itself in its promotional materials throughout.
In a nutshell: Compu-Finder sent out a lot of unsolicited email without an adequate unsubscribe mechanism, which is pretty blatantly in violation of the law (and also — for anyone in marketing – not smart. Seth Godin wrote Permission Marketing in 1999, for Pete’s sake… this, even absent legislation, violated a lot of common sense and best practices).
The Notice of Violation is so brief that I can fit it all right here, in an accordion (fold out to view):
2015 AMP for Compu-Finder
Ottawa, 5 March 2015 File Nos.: 9094-2014-00302-001
To: 3510395 Canada Inc. (dba Compu.Finder)
Name: Ms. Sylvie Pagé, President
Address: 707, chemin du Village, suite 202 Morin Heights, QC, J0R 1H0
Issue Date of Notice: 5 March 2015
Penalty: $1,100,000
Pursuant to section 22 of the Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23 (the Act), the undersigned has issued this notice of violation finding 3510395 Canada Inc. to have committed the following violations contrary to Paragraphs 6(1)(a) and the Act:
Between 2 July 2014 and 16 September 2014, inclusively, 3510395 Canada Inc. sent or caused or permitted to be sent, to electronic addresses, commercial electronic messages, in three (3) patterns, without having the consent of the persons to whom the messages were sent, resulting in three (3) violations of section 6(1)(a) of the Act.
Between 2 July 2014 and 16 September 2014, inclusively, 3510395 Canada Inc. sent or caused or permitted to be sent, to electronic addresses, commercial electronic messages, containing an unsubscribe mechanism that did not function properly, resulting in one (1) violation of paragraph 6(2)(c) of the Act. Contrary to paragraph 6(1)(b) of the Act, 3510395 Canada Inc. did not ensure that the unsubscribe mechanism was valid for a minimum of 60 days after the message was sent, in accordance with subsections 11(1)(b) and 11(2) of the Act and as required by paragraph 6(2)(c) of the Act, or 3510395 Canada Inc. did not give effect to an indication sent in accordance with subsection 11(1) without delay, and in any event no later than 10 business days after the indication was sent, without any further action being required on the part of the person who so indicated, as required by subsection 11(3) of the Act.
Pursuant to section 20 of the Act, the undersigned has determined that the total administrative monetary penalty for the violations identified above is $1,100,000.
The penalty of $1,100,000 must be paid by 3510395 Canada Inc. to “The Receiver General for Canada” in accordance with subsection 28(3) of the Act.
Manon Bombardier Chief Compliance and Enforcement Officer
The widely reported decision was a wake-up call for marketers from coast to coast in Canada. Over a million dollars? For 3 email campaigns? In a miasma of still not being entirely rock solid on how the law worked, and how aggressively it would be enforced, especially in the soft areas around what constituted a “business relationship,” it was pretty scary stuff.
Other investigations and a walking-back of the $1.1M
While addresses were harvested before the Act introduced provisions regarding address harvesting on July 1, 2014, use of some of those addresses still constituted a violation of the Act [16].
The volume of complaints to the SRC was 1,015 over a nine-months-plus-a-bit period. That’s over 100 complaints a month, which is a lot of complaints. Reading between the lines – if people were submitting that many complaints to a government body, surely Compu-Finder must have been getting a ton, enough that I’d hazard they were being deliberately obtuse about it. Again – permission marketing wasn’t a new concept, even in 2014. [27]
Ultimately, 317 emails were at issue; ultimately this averages out to about 100 emails per “pattern” of email. Only 87 violated the unsubscribe requirement. [31]
The emails came from a revolving door of domain names, including “coursacf”, “acfmanagement”, formationacf”, “objectifscommerciaux”, “gestionnaireschan, “laformationsenligne” and “moncourtravailz” – “to name a few,” as stated in the investigation. They were also sent / signed by generic names such as “Team Leader,” “Director General,” etc. [29,30]
…honestly, the investigation is worth reading. It feels like Compu-Finder missed a trick in not opening a highly profitable red flag factory.
Lack of meaningful consent, ambiguous phone scripts to cold-call companies and extract names and email addresses, reliance on implied consent (PIPEDA 4.3.6; PIPEDA 40.1) but disregarding express prohibitions against solicitation in public email directories… if I were to write a Goofus and Gallant children’s book on e-mail marketing in Canada, the Goofus pages are fully filled in.
Ultimately, Compu-Finder agrees to implement the OPC’s mandated changes “without prejudice and without admission.” [156]. The OPC determines that the issues are either well-founded and resolved, or well-founded and conditionally resolved, noting that the Office has a “continuing interest” in making sure Compu-Finder is compliant. [160, 161]
Which is still more money than most organizations would care to spend on a fine for spam, but a pretty huge leap back from the national-headline-grabbing over-a-million amount. Why? The reasoning extends across [87] through [124] of the decision, culminating in
[125] The Commission finds, on a balance of probabilities, that Compu-Finder committed the four violations set out in the notice of violation, and imposes a total penalty of $200,000 on the company.
So why was there apparently a $900,000 error in the first decision? This may seem cynical, but as somebody who works in marketing, the one line that that review that leaps out as pretty close to an admission that they did it for the shock and awe is here:
[92] The investigation report stated that the purpose of the penalty, being the promotion of compliance with the Act, was achieved through general deterrence created by the AMP, and that the proposed penalty was not disproportionate to the violations. (emphasis added)
The decision, in [87-124], covers ground including the offense, Compu-Finder’s ability to pay, whether or not the size of the penalty triggers a s11 Charter violation (more on constitutional challenges later), and proportionality.
It is what it is; but one might expect that the CRTC would have worked through all of this before issuing the AMP in the first place, unless the object was to terrify as opposed to impose a fee that sticks.
established that CASL is constitutionally valid federally (among other things this prevents “legislation shopping” among provinces for the one with the least stringent anti-spam legislation)
doesn’t violate Sections 7, 8 or 11 of the charter (the first because there’s no unreasonable seizure in a CASL request, the latter two because there’s no criminal charges or penal consequences)
justifiably violates S1 of the Charter, Freedom of Expression — of note, see Para 194 of the FCA decision and its statement that “commercial expression is not as jealously guarded as some other forms of expression”.
Compu-Finder then sought leave to bring this to the Supreme Court, and was rebuffed in March of 2021, six and a half years after the initial ruling.
We won’t be covering further decisions in this much detail, but out of the gate Compu-Finder establishes a few modes of action that are worth tracking:
Big-money AMPs that are later reduced
CASL decisions that get walked back by the CRTC later on
Targeting offenders that operate mainly in the private sector, and mainly in tech
On that first bullet, here’s the beginning of a running tally:
Issued penalty: $1,100,000
Final penalty: $200,000
Differential: $900,000
Let’s dive into a few more of these, and see where and when that pattern holds, and how those numbers differ over time.
Incidentally – Compu-Finder seems to have fallen on hard times since the Supreme Court’s rebuffing. At the time of writing, of the URLs identified in the PIPEDA investigation in 2016 as being the principal URLs for Compu-Finder have all fallen on hard times:
compufc.com – 404 error
acfmanagement.com – returns a blank page; View Page Source shows only a notification to enable JavaScript but not indication of what the content would be
prosperer.ca – clearly abandoned; there is content on the page but the CSS is broken and the page is unreadable
academiedegestion.com – redirects to an alphabet soup URL that requires you to allow notifications to view it – no thank you.
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23), section 3
4
It’s spelled “Compu.Finder” in the header of the CASL decision, “CompuFinder” in the body of that decision, and “Compu-Finder” in the PIPEDA investigation referenced below – for the sake of consistency, we’ll be using “Compu-Finder”, which is how the company referred to itself in its promotional materials throughout.
Another U.S. decision that AI-generated art cannot be copyrighted — while acknowledging that there will be “challenging questions about how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.”
Where this is going to get really interesting, I think, is when somebody uses AI to produce something with a striking resemblance to a certain M. Mouse, or D. Vader.
A one-off ask in DALL-E with the prompt “cartoon mouse with black ears and a white face, smiling, with exaggerated features.”A one-off ask in DALL-E with the prompt “menacing figure with a cybernetic black mask, cape, respirator and holding a glowing laser sword.”
See above for two 30-second not-even-trying prompts that are arguably completely innocent, but get within striking distance of the Disney Zone.
Secondary infringement — when you “should” know that you’re infringing, even if the resemblance is innocent or coincidental — is going to be come much more pivotal.
But even secondary infringement in the Copyright Act presumes an author:
Secondary infringement(2) It is an infringement of copyright for any person to
(a) sell or rent out,(b) distribute to such an extent as to affect prejudicially the owner of the copyright,(c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,(d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or(e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),
a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.
Copyright Act, III 27(1) – emphasis mine
And/or prompts are going to become pivotal to prove primary infringement.
If AI can’t be an “author” and can still produce works that strongly resemble copyrighted work, I wonder if Compo Co. Ltd. v. Blue Crest Music et al. is going to become much more of a juggernaut in copyright law in Canada — precedence that producing something that violates copyright is itself copyright violation, even if you’re not the producer of the violating work. Even in Compo, the issue resided in the fact that the provider of the work, Canusa, _had_ violated copyright — which isn’t the case with AI.
It’s going to be an interesting decade for IP law…
This is part three of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.
With the 10th year anniversary of Canada’s Anti-Spam Legislation coming up in a few months, it’s beneficial to run through the data they provide (starting in 2018).
My interests here are chiefly:
establishing whether or not the overall rate of spam is going down
gaining some understanding of the likelihood of a significant action being imposed on an organization
On the first, CASL itself reports on the number of complaints it receives over time. I’ve aggregated these from their reports, such as the Sept. 2022 – March 2023 report presented here.
Based on complaints to regulators, is spam diminishing over time?
The number of complaints about unsolicited CEMs over time wobbles, but stays within a rough 140,000-170,000 range, trending up steadily since COVID.
Complaints over time: note that the baseline is set at 100,000.
On its face, then, the presence of the legislation isn’t slowing the rate of complaints about unsolicited messages.
Careful phrasing, there: I don’t want to say that the legislation is not having an effect on spam. All we’re seeing here is that complaints about spam are staying high and gently rising over time following a 2020 dip (COVID?) This could feel like it means “spam is not going down,” but there are counter-arguments to that – it may not be that spam is not decreasing, per se, but that growing awareness of CASL means that reporting rates are going up: people can recognize spam more readily, and know it is easy to report.
Even if you take the complaint number as representing spam volume overall, there are (at least) two arguments one could make that CASL is effective:
Spam would be growing unchecked were it not for CASL, and relatively flat numbers are a proof of its success.1Why do police budgets keep going up while crime rates fall? Because enough politicians believe that if we don’t keep buying military hardware for the police, crime will suddenly rise. I’m not a subscriber to this line of thought, and think declines in crime are more provably attributable to things the police have very little to do with — education, social services, access to mental health supports and healthcare — but this line of thought exists, and there’s no reason it shouldn’t apply to CASL as it applies to street crime.
Complaints aren’t really the right tool to measure its effectiveness: the legislation isn’t really about stopping commercial electronic messages (CEMs) entirely, but consumer and marketer education.
The best test would be to compare complaint rates with those from a country that has no CASL-type legislation or enforcement. Unfortunately, CASL is the reporting structure as well as the enforcement unit — if there are countries that track spam complaints but don’t have any mechanisms for controlling spam, please let me know.
What about the other easily measured numbers: notices to produce, and preservation demands – both easily interpreted as preludes to enforcement?
The graphs are a bit more jagged, due to the smaller overall numbers, and reflect a “ramping up” of CASL following its introduction – the complaints came hard and fast initially, but it clearly took some time to respond to them and begin issuing notices:
CASL – Notices to Produce, April 2018-March 2023.CASL – Preservation Demands, April 2018 – March 2023CASL – Warning Letters, April 2018 – March 2023
It feels like it took the CRTC a couple of years to hit its stride with Notices to Produce and Preservation Demands,2please see the Terminology blog post for descriptions of these! with complaints flowing in out of the gate and some ramping up of the tools and processes for investigation, with a fairly steady state since 2020 in terms of notices to produce and preservation demands. Until our most recent periods, anyway. I thought I’d identified a wave – notices to produce in one six-month span create higher preservation demands in the next – but the above shows that’s wrong.
Warning letters are very different – a (relatively) large burst in 2019, and then not much at all. I would have expected a consistency here, and can only speculate that the Commission has at some point decided that NoPs and preservation demands are more effective.
The complaints chart looks very smooth compared to the notices/preservation/warning charts because the scale of the numbers is different. Taking a reasonably high period for notices and demands (April-September 2020), here’s how they compare:
Complaints
Notices to Produce
Preservation Demands
140945
257
17
That is a whopping ratio: almost 550 complaints per notice to produce.
About 8300 complaints per preservation demand.
And if you dig into the actual actions beyond the “warning shots” of notices to produce, preservation demands and warning letters, the number gets very small indeed. From April 2018 to present, the ratios are:
1,529,257 complaints total 3This project overall might be read as critical of CASL, and I just want to be clear that processing 1.5 million complaints is nothing short of heroic. We’ll be getting to conclusions eventually, but please remember this number — I don’t know how many people are staffing the CASL project, but 1.5 million complaints in five years is an incredible amount of work to manage.
18,785 complaints per warning letter
21,240 complaints per preservation demand
1007 complaints per notice to produce4We have to be clear that this is not a magic number; when we get into looking at specific cases, sometimes a very low number of complaints ultimately result in a notice, preservation demand, or AMP. Saying “if less than a thousand people complain, nothing will happen” shouldn’t be the takeaway here!
There have been 16 undertakings and/or decisions with financial penalties issued since 2014. Nine happened prior to 2018, when complaint numbers started being made publicly available, so if we measure from when these stats were published, we arrive at 1,529,257total complaints resulting in seven announced penalties – many of those later being reduced or ultimately not imposed (stay tuned for closer looks at the decisions and – more importantly – the follow-throughs).
That math breaks down to over 218,000 complaints per announced penalty.
That feels like a lot of complaints ultimately leading to a penalty (or in some cases, no penalty after all).
A summary in convenient graphic form, with tasteful gradient background:
Arguably, warning letters and notices to produce are the deterrent, and the issue rate of warning letters / NOPs is chilling violators, and focusing solely on AMPs is a bit too narrow – but CASL likes to broadcast the dollar values of penalties levied on every report, so I think it’s fair enough to zero in on those as the key factor.
Next post, we’ll start to look at the actual decisions – those seven penalties – and poke at their stories a bit. It’s interesting stuff, I promise.
Why do police budgets keep going up while crime rates fall? Because enough politicians believe that if we don’t keep buying military hardware for the police, crime will suddenly rise. I’m not a subscriber to this line of thought, and think declines in crime are more provably attributable to things the police have very little to do with — education, social services, access to mental health supports and healthcare — but this line of thought exists, and there’s no reason it shouldn’t apply to CASL as it applies to street crime.
This project overall might be read as critical of CASL, and I just want to be clear that processing 1.5 million complaints is nothing short of heroic. We’ll be getting to conclusions eventually, but please remember this number — I don’t know how many people are staffing the CASL project, but 1.5 million complaints in five years is an incredible amount of work to manage.
4
We have to be clear that this is not a magic number; when we get into looking at specific cases, sometimes a very low number of complaints ultimately result in a notice, preservation demand, or AMP. Saying “if less than a thousand people complain, nothing will happen” shouldn’t be the takeaway here!
Are dogs allowed, with exceptions, or are all dogs forbidden (again with exceptions)?
This is part two of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up.
Before we dig into what Canada’s Anti-Spam Legislation (CASL) does, let’s look at what it’s for. This whole series kicked off as a work-related question around student subscriptions to Faculty newsletters,1In a nutshell: we use Mailchimp for newsletters, which comes with a baked-in unsubscribe function; we’ve also developed a process to scrape the school database to auto-update student lists so that it periodically “automagically” recalibrates for students who have left, new students who have joined, etc. That in turn would refresh the lists in a way that pushes students who unsubscribe – which they really shouldn’t do in the first place – back into the mailing list, and administrators, appropriately concerned, asked if that was even CASL compliant. Hence (gestures around). so that’s a jumping off point for what I’ll be exploring here.
The first organizing question, then, is “are school newsletters subject to CASL?”
The most safe answer is “yes.” But that’s not an entirely accurate answer. If you are very diligent about content and ensuring you’re always on the right side of not including CEMs2Commercial Electronic Messages; Part One of this series has all the definitions. (see below), it’s feasible to have a newsletter program that – by diligently avoiding CEMs entirely – is outside of CASL’s scope.
Law firm Borden Ladner Gervais prepared an overview for Colleges Ontario, vexingly not available on either the BLG or Colleges Ontario sites but available on some college sites, including that of Algonquin College.
It is very much a document that errs on the side of caution, and is very prescriptive; to understand it, it’s necessary to understand some of the basic premises of CASL.
All commercial messages are forbidden, and CASL creates exceptions to a general prohibition.
All commercial electronic messages (CEMs) are forbidden by default.
This isn’t a situation where they are allowed, with some prohibited: they are all forbidden, except under circumstances that the law lays out.
This might seem obvious but was kind of hard for me to wrap my head around. Going into this, I had the general sense that the law hews toward a “if it’s not forbidden in the law, it’s okay”, or as WR Lederman put it:
What is not forbidden is permitted, but certain things must be and are forbidden.3W R Lederman, The Nature and Problems of a Bill of Rights, 1959 37-1 Canadian Bar Review 4, 1959 CanLIIDocs 21, <https://canlii.ca/t/t5qk>, retrieved on 2023-05-24
I kind of assumed it was like a sign at a park about dogs. “Dogs Welcome!” Generally speaking, you can bring your dog there. And then it specifies that some types of dogs, or certain breeds, are not allowed (“No Pit Bulls”, or “No Aggressive Dogs,” or “No Dogs Over 10 lbs.”). Dogs are permitted, generally speaking, and there are rules governing outliers.
CASL is actually like a sign that says no dogs allowed and then goes on to say “except these specific breeds” or “except dogs of a certain size”. CEMs fall under the “…but certain things must be and are forbidden.” end of Lederman’s sentence above.
The legislation carves out exceptions to a prohibition, rather than prohibiting elements of a broadly allowed behaviour.
CEMs are prohibited. Period. The only exceptions under which CEMs are allowed are those detailed in CASL.
All dogs are welcome (except certain dogs), vs. no dogs are allowed (except certain dogs). CASL keeps all the dogs out, but makes provisions for certain dogs being okay. I have tried to make a “who let the dogs out” joke here, but it’s just not coming together.
Before we get to how the Act defines a CEM, let’s hop through a couple of other definitions from Part 1 of the Act:
1(1) commercial activity: means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.
(…)
electronic address: means an address used in connection with the transmission of an electronic message to
(a) an electronic mail account;
(b) an instant messaging account;
(c) a telephone account; or
(d) any similar account.
(…)
electronic message: electronic message: means a message sent by any means of telecommunication, including a text, sound, voice or image message.
Putting it all together for a definition of a CEM:
1(2)
For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that
(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
(b) offers to provide a business, investment or gaming opportunity;
(c) advertises or promotes anything referred to in paragraph (a) or (b); or
(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.
The law also extends the request for consent itself to be a commercial electronic message.
This is vexing for people who are permission-seeking, but makes perfect sense from a consumer standpoint: it closes a loophole of the permission-seeking being the ad. If they didn’t do this, “May we send you messages about CreamerSquirtz (a squeezable creamer container that will revolutionize how you put cream in your coffee, now on sale at your local grocer for $2.99, buy it today!)?” would be viable. Hence:
1(3)
(3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.
CASL regulates all electronic messages, not just email
While “Spam” is right there in the name, it’s not really just about email spam (or text spam). As defined above in 1(1), an electronic message is a message sent by any means of telecommunication.
There’s an implied element of directness in there: a billboard cannot be a CASL violation, for instance. It governs messages sent to an “electronic address” (see above):
6 (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless
(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and
(b) the message complies with subsection (2).
Any commercial message contaminates a non-commercial message
The content of school newsletters, at least where I work, is almost entirely non-commercial. Upcoming key exam dates, or an announcement that a club is looking for members, or summaries of recent news articles, don’t fall under the definition of a CEM.
But some things on the periphery do qualify, and that’s why understanding contamination is important.
Just like you can’t have a shop that stocks mostly soda pop and just a smidge of toxic waste, and think that’s okay because it’s mostly soda pop, you can’t have a “mostly” non-commercial message with a bit of commercial messaging.
The law is clear: all commercial messages are de facto forbidden. A school e-newsletter that’s 90% announcements but also 10% promoting a clothing sale that kicks back some profits to the school is considered a CEM – the latter contaminates the former, as it’s a commercial message.
There are no exceptions for non-profits or charities
Right back up to 1(1): “…whether or not the person who carries it out does so in the expectation of profit…”. Just because you’re a school – or a church, or a Scout troop, or whatnot – a CEM is a CEM is a CEM.
People can’t sue you for CASL violations
At one point, the federal government was going to introduce a “private right of action” – i.e. empowering lawsuits – over CASL violations. It was removed before the law finally came into full force, but it’s not impossible to see it being reintroduced. It’s possible that people could sue you for other reasons related to unsolicited messages, but there’s no mechanism for people to point at CASL as the foundation of a lawsuit.
Consent is implied if a recipient is in an existing business or non-business relationship
This is something I’m still actively poking at, because it feels like the mechanism under which school newsletters might work, but it also feels… tricky.
One of the challenges with CASL implementation – which we’ll see when we get into examining actual cases, especially those resulting in AMPs – is that there just isn’t that much jurisprudence in the “interesting” zones around the fringes of the flagrant examples of unsolicited, no-question-it’s-spam spam. Like many things in law, a Real Lawyer (and I am not one) can confidently say “the law says this” but it’s still ultimately up to the courts to decide how the law is applied when a use case is operating on the fringes.
I feel there’s a strong argument, when you look at s10 (9) and (10), that students at a university are in a business relationship with their school.
Implied consent — section 6 (9) Consent is implied for the purpose of section 6 only if (a) the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent (…)
Definition of existing business relationship (10) In subsection (9), existing business relationship means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from (a) the purchase or lease of a product, goods, a service4emphasis mine, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons (…)
On its face, it seems clearly arguable that a student is purchasing a service, or really a broad set of services, from a university. Money is exchanged, the student receives instruction and grades and so on.
To date, there hasn’t ever been anything that addresses this or is comfortably adjacent to it. So I personally feel confident that consent is implied when a student is paying a college or university for the services of education (or residence, or gym use, etc.) but it’s… fuzzy. I’ve got a lot of notes for a dive into this topic as its own thing, and hope to get to it.
This interestingly dovetails entirely with another area of active interest for me – the interweaving of FIPPA and PIPEDA5Freedom of Information and Protection of Privacy Act / Personal Information Protection and Electronic Documents Act; essentially provincially-regulated public-sector legislation and national private-sector legislation governing privacy. on campuses, with for-profit PIPEDA eligible activity nested inside larger FIPPA-regulated structures, but that’s a whole ‘nother thing.
Coming up: actual numbers, 2018-present
Up soon… let’s look at the actual numbers of what CASL has done since it started taking recorded actions. There will be charts.
In a nutshell: we use Mailchimp for newsletters, which comes with a baked-in unsubscribe function; we’ve also developed a process to scrape the school database to auto-update student lists so that it periodically “automagically” recalibrates for students who have left, new students who have joined, etc. That in turn would refresh the lists in a way that pushes students who unsubscribe – which they really shouldn’t do in the first place – back into the mailing list, and administrators, appropriately concerned, asked if that was even CASL compliant. Hence (gestures around).
W R Lederman, The Nature and Problems of a Bill of Rights, 1959 37-1 Canadian Bar Review 4, 1959 CanLIIDocs 21, <https://canlii.ca/t/t5qk>, retrieved on 2023-05-24
4
emphasis mine
5
Freedom of Information and Protection of Privacy Act / Personal Information Protection and Electronic Documents Act; essentially provincially-regulated public-sector legislation and national private-sector legislation governing privacy.
This is part one of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of full enforcement in 2017. Crosslinks will be added as new parts go up.
CASL has been a subject of professional and personal interest to me for some time. I began working in higher ed marketing at around the same time as the legislation was introduced, and well in the groove when it came into full force. It made pretty much everyone in marketing — whether they were in for-profit, not-for-profit or charitable work — pretty anxious.
Almost 10 years later, it feels like a good time to see how it’s all playing out. I’ve been working on this at a fairly relaxed pace, so it’s conceivable that I might wrap this up for its 10th anniversary at this point.
Even as somebody who was passingly familiar with CASL for professional reasons going into this, I rapidly ran into a pretty fair-sized lexicon of terms and acronyms. Before we get into the meat of it, let’s get some acronyms and terms out of the way.
CASL: Canada’s Anti-Spam Legislation. The subject of these short essays. It was introduced in 2014, with a “transitional period” to July 1, 2017, when it came into full force.
CEM: Commercial electronic messages. Pretty much any electronic message (text, email) that promotes a product or service, with some clearly defined exceptions. We’ll unpack this more in the next post.
Investigative powers: Commission staff, who are persons designated by the Commission to conduct investigations, may use the following powers to investigate possible violations under CASL. These presumably lead to actions (see below).
Notice to Produce (NTP) – a notice served on a person requiring them to produce data, information or documents in their possession or control (additional information is available in section 17 of CASL);
Preservation Demand – a demand served on a telecommunications service provider requiring it to preserve transmission data in that is in or comes into its possession or control (additional information is available in section 15 of CASL); and
Search Warrant – a judicially pre-authorized warrant that authorizes designated persons to enter a place (business or dwelling-house) to examine, copy or remove documents or things (additional information is available in section 19 of CASL). 2Verbatim from the CASL FAQ at https://crtc.gc.ca/eng/com500/faq500.htm/
Action types: measures that CASL / the CRTC uses to reinforce compliance with CASL (as well as Unsolicited Telecommunications Rules (UTR) and the Voter Contract Registry (VTR)). Particularly pertinent for CASL:
Citation: a letter outlining alleged violations and an “opportunity to clarify”. Other than publishing the citation 30 days after issuance (absent a valid defence), there don’t seem to be any follow-on penalties to a citation. There’s only been one citation in CASL history to date (Orange Link Inc., details not available online).
Notice of Violation: sets out alleged violations, and may include an AMP (see below).
Compliance and Enforcement Decision (“Decision”): official decisions following the review of a Notice of Violation, Notice to Produce or Preservation Demand.
Undertaking: an agreement between a violating entity and Commission staff defining compliance obligations; can also include a payment amount.
AMP: Administrative Monetary Penalty. These are part of a Notice of Violation; a civil penalty imposed by a regulator. They can be appealed to the commission – this gets important later.
In the next post, we’ll start looking more at the early days of CASL, its remit governing Commercial Electronic Messages (CEMs), and what exactly CASL is, and is not, meant to enforce. It wasn’t quite what I always assumed it was; this might be true for you as well.
In a 24/7 global news cycle, we are all capable — if not always actively engaged — with knowing what is wrong in the world. This means a lot in higher education, which combines international presences with institutional commitments to both recognizing diversity and treating students with empathy and support.
When members of our community are suffering, they look to their institutions for support and understanding, particularly in a public context. A statement in support of their plight means a lot: it shows that the institution sees them, that it cares, and that it is on their side. “We stand with ________ during the __________” messages can mean a lot to the people affected. Doubly so in a lot of ways in higher ed, where a school can be an intrinsic part of one’s identity, above and beyond just a place you show up and take classes. Community, support and spirit are a core part of the value offering of colleges and universities, and the corollary of that is that the demand for emotional buttressing may be greater than one might expect from, say, a favourite fast food restaurant, day job or leisure activity.
Knowing that: why in the world would you not provide your commmunity with leadership, comfort, and goodwill in a time of need?
And I want to be clear here that I’m talking about things that are unambiguous. Tsunami-level disasters. Decrying tyrannical governments or full-on Nazis. This isn’t “take a stand on a highly contentious issue” territory where the risk is that 50% of people will disagree with you: this is “vaccines are good, the Earth is round, ethnic cleansing is bad” issues where sane humans are entirely on board and you can afford to discount the weirdos.
But even in those cases where you’re making a public comment on a fully realized issue that 99% of humanity will back, there are reasons not to do it.
The first is that any comment on that isn’t completely in the ambit of your core mission represents a deliberate choice to make a purposeful statement. It therefore implies choices to not comment on other issues. Speaking out on Issue A is a positive act of support for Issue A, but can be read by people affected by Issue B — for which no statement has been made — as disinterest in what affects them.
I’m defining “core mission” here as (in a higher ed context) things that in the first order directly affect the school and its community; in the second order, things that affect its educational or research mandate, or have a profound impact on the industry/sector that the primary subject of teaching/research focuses on.
I’m never sure if diagramming things is helpful, or just opens me up for trouble by oversimplifying some pretty complex and nuanced stuff.
Once you’ve commented on Issue A, subsequent calls for more statements are harder to resist, because there’s now a legitimate area for complaint: if you support this part of the community, why don’t you equally support this other part?
Once you’ve broken the “speak on subjects outside of the core mission” seal, there are three paths:
Rare statements based on what the administration feels is important, but without a formal policy or guidelines on when a statement should be issued.
More statements — either on demand whenever a concern is raised or proactively when something that might affect the community is noticed.
Development of a policy or guidelines that clearly identify what circumstances should generate a statement of support, with statements only issued when the policy supports it.
The first is the default; it’s the status quo, and frankly, it’s… probably fine? I haven’t noticed our institutions crumbling to dust around us. Issues with this approach manifest themselves chiefly in planning — it’s hard to know when the call will be made, and what kind of a statement and what kind of distribution will be desirable. The other is the spectre of bias and resulting reputational risk: why did you speak up to support group A and not group B? Why do you care about issue Y and not issue Z?
These play out internally, for the most part. There’s an ever-present risk of getting a black eye on social media over supporting A but not B. Since there’s already commenting on A, and no policy in place, it’s a legitimate question, which makes public criticism more pointed. That leads to a temptation to just speak on Issue B as well. And over time, this can lead to…
The second path — lots of statements, without a clear policy on why and when they’re being issued. This is the least good option; the more an insitution diverts itself to talking about things fundamentally unrelated to its core mission, the more it is diluting its own message and purpose. Which, in at least the case of higher education, are things that are also worthy of support: research, education. There’s also a question of what message this sends internally — if the institution we’re looking to for stability and support is constantly reminding us of crises and tragedy, even through support messages, what does that do to people who want safety and steadiness in the world? This is almost an inevitable path to…
The third path — policy. Which provides clarity, but ultimately opens the institution up to the same criticisms as the first path, with the additional disadvantage that somebody has actually sat down and tried to write out a formula that quantifies human suffering. Does one measure the “statement-worthiness” of an issue by deaths? By trauma? By the percentage of the community it affects? Who drafts it? Who approves it? How and where is it published to refer to, and who handles complaints about the policy? On its face, “write policy” seems like a straightforward path, but it’s a fraught one.
Ultimately the three paths are two: infrequent/frequent ad hoc statements, or a single policy-driven approach.
And that brings us to moral courage.
Two flavours of it.
The first is sticking to the “official statements in our area of expertise” guns. No matter what happens in the world, in scope or scale, you just adhere to the non-policy of speaking only on issues that affect your core mission.
The second is feeling moved to comment on something outside your remit, knowing this may lead to accusations of unfairness, difficult-to-navigate conversations about statements on other issues, and public pressure from people pro- and anti- whatever you are commenting on… and doing it anyway.
Both represent a kind of fortitude; both are about a willingness to have hard conversations about difficult topics, and possibly suffer some public lambasting regardless on where you fall on the issues.
The first gives you an easy response (if sometimes tough conversations) to requests for statements. The second leads to challenging responses to the same questions — but is also for something.
My own thinking on this has been, frankly, muddy. I feel like I’ve been slowly sloughing through the practical, moral, and logistical issues around public statements for years, and have been very slow in coming to a conclusion that people with a stronger moral compass than I have probably would get to a lot quicker:
Some things are worth the risk.
The institution-only statement path is one that is simple and easy to follow. It’s driven by clarity, but also, it could be argued, by fear: we don’t want to deal with the risk of these other conversations about fairness; we are anxious about being driven down paths where we have to publicly navigate questions about what and who we support, and why.
As a naturally risk-averse person, I fully identify with the anxiety.
Which is why I’ve come to appreciate the statement-makers more of late: I don’t think they’re ignorant of the risks above (although they may not have ever articulated them like this). I think they are just okay with them.
I’m very slowly reversing gears on a long tradition of counsel to just stick to the institutional mission and not colour outside the lines. I think — if the risks are known, and accepted — it’s more courageous to take the risky statement route than not.
This is possibly a very long walk to cover a very short distance, but hopefully it lands with somebody who’s going through the same slow slog I’ve been undergoing for the last few years.
Busy times here, with work picking up a tremendous amount of steam on the undergraduate recruitment front, Homecoming around the corner and some new members being added to the Engineering marcomms unit this week.
A placeholder here to say that I am chipping away at something I’m pretty happy with — an analysis of CASL undertakings and decisions since they started publishing them in 2018. This started as something fairly work-related around the parameters of what qualifies as a CEM (commercial electronic message) and specific rules around subscription/unsubscription when a business relationship is ongoing or renewed, but it’s turning into something a bit more interesting.
Now that the Master’s is done (surreal!) and I’ve had a few months of watching dumb horror movies, reading comics and playing various flavours of Magic: The Gathering online, I’m starting to poke at self-directed legal research again.
I’m starting with picking up my rejected original premise for my Master’s — puffery is fascinating, by God, and I will not be deterred from poking at it with a big dumb stick even if no serious legal academic on the planet thinks it’s worth doing.
But — as somebody who is eminently easily distracted — I almost immediately got detoured into interesting turns of phrases in some of the cases I was reading in CanLII where puffery is mentioned.
One of these,
Alcamo v. Walt, 2022 ONSC 1913 (CanLII)1https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html is a riveting read in and of itself. But I was immediately struck by the use of the phrase Dramatis Personae, which I’d never seen in a legal decision before, to establish the various parties in the case. A quick search of CanLII later, and there are only 49 decisions in the database (which only reaches back to the early 2000s, but still, it’s 18+ years and 3,000,000+ decisions) that use that specific string.
What are they, and who are they by? There’s only a trickle before 2008, and then they start occurring more frequently…
2008
Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC)2https://www.canlii.org/en/on/onsc/doc/2008/2008canlii17304/2008canlii17304.html Perell J
2010
Alberta (Child, Youth and Family Enhancement Act, Director) v. Z.G., 2010 ABPC 7 (CanLII)3https://www.canlii.org/en/ab/abpc/doc/2010/2010abpc7/2010abpc7.html A.H. Lefever
D.J. (Re), 2013 ABPC 99 (CanLII)11https://www.canlii.org/en/ab/abpc/doc/2013/2013abpc99/2013abpc99.html Steven E. Lipton
2014
R v Fast, 2014 SKQB 84 (CanLII)12https://www.canlii.org/en/sk/skqb/doc/2014/2014skqb84/2014skqb84.html Danyliuk J “This case is about unscrupulous business practices, criminal schemes to make money, greed, and human nature.” — hot dang I like it when the justices get a little Grishamy in their headnotes.
R v. Beauchamp, 2015 ONCA 260 (CanLII)14https://www.canlii.org/en/on/onca/doc/2015/2015onca260/2015onca260.html Cronk, Blair and Watt JJ.A.
2016
Pev International Research & Development Incorporated (Re), 2016 NSUARB 88 (CanLII)15https://www.canlii.org/en/ns/nsuarb/doc/2016/2016nsuarb88/2016nsuarb88.html Roberta J. Clarke, Q.C., Member
Dhudwal v. Canada (Citizenship and Immigration), 2016 FC 1124 (CanLII)17https://www.canlii.org/en/ca/fct/doc/2016/2016fc1124/2016fc1124.html Mr. Justice Harrington
2017
907687 Ontario Inc. (International Institute of Travel) v. 1472359 Ontario Ltd (IBT College of Business Travel & Tourism Technology), 2017 FC 969 (CanLII)18https://www.canlii.org/en/ca/fct/doc/2017/2017fc969/2017fc969.html Fothergill J
2018
4075447 Canada Inc v Pacrim Developments Inc, 2018 ABQB 358 (CanLII)19https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb358/2018abqb358.html Robertson AR QC
Hallman Construction Ltd. v Cambridge (City), 2018 CanLII 70303 (ON LPAT) [Local Planning Appeal Tribunal]20https://www.canlii.org/en/on/onlpat/doc/2018/2018canlii70303/2018canlii70303.html Swinkin, Douglas – Tribunal members
2019
Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting Inc, 2019 ONSC 1507 (CanLII)21https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1507/2019onsc1507.html Perell J
Signature Realty Inc. o/a Royal Lepage Signature Realty v. Fallico, 2020 ONSC 1117 (CanLII)22https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1117/2020onsc1117.html Perell J
Children’s Aid Society of Algoma v. L.G., 2020 ONCJ 297 (CanLII)23https://www.canlii.org/en/on/oncj/doc/2020/2020oncj297/2020oncj297.html Kukurin J
2021
Peters v. SNC-Lavalin Group Inc., 2021 ONSC 5021 (CanLII)24https://www.canlii.org/en/on/onsc/doc/2021/2021onsc5021/2021onsc5021.html Perell J
Barkley v. Tier 1 Capital Management Inc., 2022 ONSC 175 (CanLII)25https://www.canlii.org/en/on/onsc/doc/2022/2022onsc175/2022onsc175.html Perell J
2022
Fehr v. Gribilas, 2022 ONSC 275 (CanLII)26https://www.canlii.org/en/on/onsc/doc/2022/2022onsc275/2022onsc275.html Perell J
Riha v. A. Wilford Professional Corporation, 2022 ONSC 1110 (CanLII)27https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1110/2022onsc1110.html Perell J
Alcamo v. Walt, 2022 ONSC 1913 (CanLII)28https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1913/2022onsc1913.html Perell J
Park Lawn Corp. v. Kahu Capital Partners Ltd., 2022 ONSC 3341 (CanLII)29https://www.canlii.org/en/on/onsc/doc/2022/2022onsc3341/2022onsc3341.html Perell J
Raponi v. Olympia Trust Company, 2022 ONSC 4481 (CanLII)30https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4481/2022onsc4481.html Perell J
The attentive reader will notice a trend — Perell J, whose Alcamo decision got me on this groove in the first place, holds the strong plurality for the use of the phrase. It also seems to come up in Alberta more than anywhere else after Ontario (on review, it looks like almost all ON, several AB and a single SK use).
On Perell J’s frequent use, it occurred to me that I’m not a lawyer and will not be one; I’ll never appear before Justice Perell in court as a lawyer (and hopefully not in other contexts). I’m not a full-time legal academic. I’m just a curious person with a lot of intersecting interests in law. So I don’t really have to worry about my reputation or what he thinks of me.
So I emailed him to ask why this turn of phrase? Because I find it accessible, engaging, and even narratively strong. But it also feels a bit flip, and even cynical, to position the people on both sides of a legal dispute as “actors”. It’s a curious phrase, and it made me curious.
If he writes back, and is inclined to give me permission to share his thoughts on the use of the phrase, I’ll update here. If not, so it goes — a passing observation.
Update: he wrote back! About two days after I emailed, actually.
A really nice note from Justice Perell but without permission to reproduce, so to paraphrase, it’s not intended to be cheeky, but a recognition that litigation is inherently dramatic as something grounded in dispute, with dramatis personae a useful term of art to introduce not only litigants but all others involved in the story.
It was gratifying, and a bit thrilling, to hear back. Dramatis personae!
I’m mainly just posting this so I can share this image in a discussion about agricultural fair dominance over at MetaFilter.
What’s going on here? It seems that there was one entrant in the Peanut Butter Cookie category, and the panel of judges awarded it second place.
Let that sink in for a second. What it means.
It means that — in the opinion of the Kingston fair judges — the absence of a cookie is a superior option to this cookie. That if somebody presented this cookie to them and said “do you want this cookie?” the answer would not be a polite “no thank you”, but a dead-eyed glare and “I abjure this cookie” delivered in a monotone.
They could have just given the only entrant first prize. By default. If there’s a single racer in the race, they win the race. If there’s one apple in the bowl, it’s the best apple in the bowl. This is how these things generally go.
But this was a deep ontological choice to award nothingness a higher status than this cookie. The judges, in their wisdom, effectively told poor Yvonne Brownlee that she had created the anti-cookie, a cookie that inverts the very idea of cookiehood.
This feels harsh. Maybe the judges were having a bad day.
But I think of this cookie more often than I expected when I first saw it. A reminder that the only option can still be rejected, that just because there’s only one path ahead of you there’s still another option: reject the premise.
So — whatever the merits or flaws of this peanut butter cookie — I respect and appreciate that you went in there swingin’, Yvonne. Thank you, and thank your cookie.
