Lately, with Canada’s new anti-spam legislation being such a relevant topic, I find myself contemplating the different ways it can be interpreted and how it may impact me and others, both personally and professionally. This includes asking questions such as “could this text message qualify as a commercial electronic message?” and “would this person fall under the personal relationship exemption?”
Considering my practice is primarily focused on business law and estates law, it also includes taking a moment to consider how estates law is captured by the scope of the legislation.
First of all, the definition of “person” includes, among other things, an individual, organization, executor and a trustee, and the definition of a commercial electronic message includes a message that encourages participation in an activity of a commercial character, regardless of whether that activity is carried out in the expectation of profit. This means that CASL could, conceivably, apply to estate planning and estate administration.
For example, an email or text message to the person you would like to act as your estate trustee is definitely an electronic message, and could presumably be classified as a commercial electronic message since an estate trustee will generally be compensated. That said, since you should be naming someone you trust as your estate trustee, this will likely be someone who falls under the definition of a personal relationship or a family relationship and, therefore, these messages would likely be exempt. Further, if you are making electronic inquiries into the trustee services of an estates lawyer or trust company, your message would likely be covered by the CASL exemption which states that a message sent to a person engaged in a commercial activity which is an inquiry or application related to such activity is exempt from the anti-spam provisions of the legislation.
With respect to estate administration, estate trustees must consider whether the electronic communications they send would in any way violate the anti-spam provisions of the legislation. They must, like everyone else, analyze each electronic message they send to determine, on a case-by-case basis, whether CASL applies and, if so, how.
In many instances, I think their communications will be covered by the various exemptions. For example, an email sent to a bank to inquire into the status of a deceased’s bank account would likely qualify as an electronic message that is an inquiry with respect to the commercial activity carried on by the bank and, as a result, would likely be fully exempt.
Further, estate trustees may have personal or family relationships with the deceased’s beneficiaries – for example, think of the situation where the husband is the estate trustee for his deceased wife, and their child is a beneficiary of the Will. If a personal relationship or family relationship exists (these are defined terms), then the commercial electronic message is exempt.
That said, if an exemption does not apply, the requirements set out in CASL might.
Due to the broad nature of the definition of a commercial electronic message, it could encompass an electronic message from and estate trustee to a beneficiary or vice versa. Therefore, an email notifying a beneficiary that they are entitled to a share in an estate may be a commercial electronic message which requires consent, and which must include the prescribed identifying information and an unsubscribe mechanism.
Ultimately, CASL is a far reaching piece of legislation that impacts everyone and, therefore, is a piece of legislation everyone should be aware of.