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The Legal Playing Field Everything I needed to know about the law I learned on the softball diamond

Rule Changes Present an Opportunity for Creativity on the Legal Playing Field

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The new Canadian Federal legislation colloquially referred to as the Canadian Anti-Spam Law (“CASL”) came into effect on July 1, 2014.  The actual name of the legislation represents a disturbing trend on the part of legislators to name legislation in the broadest and most far reaching terms imaginable, specifically, the title of this legislation is:

“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 …” S.C. 2010, c.23, as amended.

Generally speaking, the CASL provisions change the rules on how a party engaged in commercial activity can communicate electronically with actual or potential customers, clients and the like.  However, there are also some potentially meaningful consequences of the CASL provisions which may impact on labour relations issues including permissible communications between employers and their employees during union organizing campaigns and as between trade unions and employees whom the union wishes to organize.

In advance of the 2014 baseball season, Major League Baseball amended its rule book to allow team managers to challenge a substantial number of additional umpire’s calls concerning plays on the field, exempting from this right of challenge any ability to question balls and strikes, other than outfield foul balls.  At first blush, this baseball rule change seemed to respond

appropriately to calls for the modernization of the game and the effective use of technology in the game and to the trend permitting in-game challenges particularly in professional football.

However, some unintended consequences have arisen as a result of this apparently positive rule change.  Team managers have learned to be creative in preserving their limited number of challenges (2 per game).  So, now we are faced with a number of in-game putative challenges by team managers whenever a “close play” occurs.  In such circumstances, the manager inevitably shuffles on to the playing field to engage with the umpire and stalls the conversation just long enough for the bench coach to review the play in slow motion on replay equipment and then signal the manager as to whether or not a formal challenge will be fruitful.  In the interim, the game is at a standstill.  Not exactly exhilarating, ticket selling, edge of the seat stuff but that’s modern technology for you.

 

Under the CASL provisions (Section 1(2)) a “commercial electronic message” is defined as an electronic message that, having regard for the content of the message, the hyperlinks in the message to content on a website or other data base, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one or more of its purposes, to encourage participation in a commercial activity, including an electronic message that:

  • Offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
  • Offers to provide a business, investment or gaming opportunity;
  • Advertises or promotes anything referred to above; or
  • Promotes a person, as being a person who does anything referred to above.

Section 6(1) of the CASL provisions prohibit a party from sending, or causing to be sent, a commercial  electronic message unless the person to whom the message is sent has consented to receiving it and unless the message complies with certain formalistic requirements concerning identification of the person who sent the message, information concerning the entity on whose behalf the message is sent and an unsubscribe mechanism as specified in the Act.

Section 6(6) of the CASL provisions provides certain limited exemptions.  In particular, Section 6(6)(e) provides that consent, either express or implied, may not be required where the commercial electronic message in question provides information directly related to an employment relationship in which the person to whom the message is sent is currently involved.

So, how does this legislation impact communications between employers, employees and trade unions during the course of an organizing campaign?  The legislation is of course new and to-date unchallenged and it is difficult to answer this question with precision.  But what we do know is that every time the rules change, there is a premium placed on creativity in interpreting and applying the rules when it comes to challenging the plays on the field regardless of the logo on the front of the jersey.

Employers may want to claim that any electronic messages which they send to employees are exempted from the necessity of consent pursuant to Section 6(6)(e).  The issue that will arise is, whether such communications are necessarily directly related to the employment relationship.  The answer may depend on a detailed analysis of the nature of the particular message.

Trade unions face a greater challenge.  On the face of it, it does not appear that unions are exempt from the CASL provisions.  Unions are “organizations” and appear to fall within the definition of “person” under the Act. Employees whom the union approaches through electronic means may have had no ongoing relationship whatsoever with the union prior to the organizing campaign and may not have granted any express or implied consent for the receipt of electronic messages from the trade union.  The target employees are not in an employment relationship with the trade union and, at least until they sign a union card, the employees cannot be said to be members of the trade union for the purposes of the CASL provisions.

Are the subject messages commercial electronic messages?  In the case of the trade union, the argument may be that the union is seeking to represent the employee(s) in return for the payment of union dues.  This may be seen as commercial activity, certainly every bit as much so as participation in any other not for profit organization or charity.  From the employer’s perspective, apart from the partial exemption that may be available under Section 6(6)(e), the argument would be that the determination by employees as to whether or not they wish to organize may well have an economic/commercial consequence for the employer.

Will either trade unions or employers challenge the campaign practices of the other, with or without actual complaints by employees concerning employee receipt of commercial electronic messages at home or elsewhere on their personal devices during the conduct of an organizing campaign?  We’ll have to wait and see how such tactics will play out.  But count on the fact that unintended consequences of this seemingly appropriate legislation will ensue.  That’s how it is in the legal playing field.