Compliance Guidance and Procedures
Canadian Unsolicited Telecommunications Rules and Canadian Anti-Spam Law
This document provides background for agents regarding the Canadian federal Unsolicited Telecommunications Rules (the “Rules”) and the Canadian Anti-Spam Law (“CASL”), and guidance about how to comply with the requirements of each. Agents who have contracted with TRB have agreed to comply with the applicable law in their respective Independent Contractor Agreements, and this includes compliance with the Rules and with CASL. The intent of this Guidance is to provide an overview of the issue and suggested best practices; it is not legal advice, nor is this intended to create obligations or requirements beyond those contained in the Independent Contractor Agreement.
The Unsolicited Telecommunication Rules
What is are the Rules?
The Rules are federal requirements that restrict certain telephone and fax messages. Email messages, text messages/SMS, and other “electronic messages”, such as push notices, that are sent to an “electronic address” are subject to CASL rather than the Rules (for guidance on CASL see the following section). The Rules apply to unsolicited telephone calls and fax messages made for the purpose of “solicitation” - which will include any unsolicited call or fax message made for the purpose of selling or promoting a product or service.
The Rules specifically prohibit several categories of calls and faxes made without the consent of the call recipient including: (1) calls for solicitation made to phones that are made using an automatic dialing and announcing device (automatic equipment with the capability of storing or producing telecommunications numbers that is used alone or in conjunction with other equipment to convey a pre-recorded or synthesized voice message - “ADAD”), (2) calls or faxes to consumer phone numbers that are on the “National Do Not Call List”, and (3) calls or fax messages to the numbers of individuals of businesses who have directly asked you or the company you are calling for not to call or fax them.
It is important to remember that individuals and entities are subject to strict liability under the Rules for the calls they make and faxes they send—this means that it is not a defense to say that the individual or entity did not know that they should not have made the call, text, or fax.
What can an agent do to comply with the Rules?
To mitigate the risk of agents having direct personal liability under the Rules, agents must take steps to comply with its requirements. TRB recommends that each agent maintain a robust compliance policy to ensure that the agent is complying with the Rules and their contractual obligations to TRB. An example of a policy that can be modified for an agent’s use is attached as Exhibit A.
The following steps can be taken to help reduce an agent’s risk:
- If the Agent makes calls or sends fax messages for the purpose of solicitation, they must first register with the National Do Not Call List operator.
- If the Agent makes calls or sends faxes that are not exempt from the National Do Not Call List, the agent must also have a paid subscription to the National Do Not Call List (“NDNCL”). The Agent must screen their calls against this list so that they do not call any phone number that has been placed on the NDNCL unless they have received the express consent of the call recipient.
- Ensure that each phone number added to your customer records and each lead has provided express written consent to be called or to receive faxes. This includes obtaining written consent at the time the phone number or lead is acquired. Such consent must state both the specific number you intend to call or fax, and must specify you as the person making the calls or sending the faxes. For leads from a lead source this would include understanding what express consent your lead source has obtained, and only contacting the leads after (a) checking against the NDNCL and the individual agent DNC List and (b) first contacting the lead (without using an ADAD or an artificial or prerecorded voice) to obtain prior express written consent before using an ADAD or an artificial/prerecorded voice in subsequent communications. Please keep in mind that that a call recipient’s consent can be revoked at any time if the recipient informs you in writing, on a call, or via other means that they do not wish to be contacted.
- Maintain and update an internal “do not call list” (“DNC List”). The agent may not call or send fax messages to any number where its owner has asked to be placed on the agent’s do not call list.
- Maintain and update a record-keeping system containing clear documentation of the agent’s telemarketing activities. This includes retaining records of the agent’s registration with and subscription to the NDNCL, copies of as well as the date and time of prior express written consents obtained, the consent language used, the source of the any leads, the dates of the calls, and the numbers called, and the of the receipt and implementation of do not call requests.
- Before calling any phone number or faxing any lead, ensure that the phone number or lead is not on the NDNCL or, if it is, that you have an “existing business relationship” or express consent to call or text them. An “existing business relationship” is one in which the call/fax recipient has had voluntary two way communications with you and has either:
- Purchased or leased goods or services from you in the 18 months before you make a call/fax;
- made an inquiry or application to you regarding a product or service you offer in the six months before you make a call/fax; or
- there is an existing written contract between you and the call/fax recipient, or such a contract expired in the 18 months before the call/fax.
An important reminder: checking the NDNCL is not a one-time exercise. Consumers may add their numbers to the NDNCL at any time. The only safe harbor for calling or faxing a number on the NDNCL absent an established business relationship or prior express consent is if you have checked the NDNCL within the past 31 days and did not find the number on the list. In other words, you must check the NDNCL at least every 31 days to ensure that a number for a lead has not been added to the list.
- Maintain and honor an internal Do-Not-Call list to handle all requests from individual call recipients that you not call or fax them—this includes where a recipient revokes existing consent. Your record-keeping system must be updated with clear written documentation of any do not call requests (“DNC request”) or consent revocation, including date, time, and manner of the request/revocation. Like the NDNCL, the internal Do-Not-Call list must be checked before calling or faxing any phone number or lead.
- Consider not using phone numbers or leads that are older than 18 months.
- Consider not using any artificial or prerecorded voice in any calls. If you do use one, do so only with prior express consent from the call recipient.
- Consider not using any software that is a random number generator to identify numbers to call. If you do use one, make calls to those numbers only with prior express consent.
- The use of sequential number generators is prohibited.
- Regularly check call histories to monitor call frequency and timing to prevent excess or improper contact. No calls may be made before 9 a.m. or after 9:30 p.m. on weekdays, or before 10 a.m. or after 6:00 p.m. on weekends. All times are the applicable time zone of the call/fax recipient.
- Ensure your call script meets the requirements of the Rules.
- Educate yourself about the Rules.
The Canadian Anti-Spam Law “CASL”
The Canadian Anti-Spam Law, or “CASL”, is strict legislation that creates consent, message content, and unsubscribe functionality requirements for “commercial electronic messages”. Commercial electronic messages include email, text messages/SMS, and other forms of electronic messages sent to an “electronic address”, such as push notices and certain forms of direct message through social media- where those messages “encourage participation in commercial activity”. CASL applies regardless of whether the messages are sent “one to one” or on a group or mass basis.
Agents who have contracted with TRB have agreed to comply with the applicable law in their respective Independent Contractor Agreements, and this includes compliance with CASL. The intent of this Guidance is to provide an overview of the issue and suggested best practices; it is not legal advice, nor is this intended to create obligations or requirements beyond those contained in the Independent Contractor Agreement.
Agents can be pursued directly and personally for violations of CASL. A company also may be pursued for a violation of the Rules for emails or text messages sent by its employees or others who had actual or apparent authority to act on their behalf. Like the Telemarketing Rules, CASL is enforced by the Canadian Radio-television and Telecommunications Commission (the “CRTC”), and enforcement actions are common, and often driven by consumer complaints. This can include investigation of both the company on whose behalf the messages were sent, as well as potentially any contractor or vendor who sent the messages. The potential monetary risk is large. The CRTC may impose a fine of up to $10,000,000 for violation of CASL. Typically, the CRTC will look at the activities of the company or individual over a period of months or years, and impose a fine that reflects the volume and magnitude of violations that occurred during such period. Defending such investigations can also be costly and time consuming. Pursuant to the Independent Contractor Agreement, any agent affiliated with the Company agrees to indemnify, defend, and hold the Company harmless from any costs and damages, legal or otherwise, arising from the agent's failure to comply with the Rules.
Consent
CASL creates very specific consent requirements. There are two forms of consent: “express consent” and “implied consent”. Both forms of consent are subject to specific requirements under CASL, and other means of getting ‘consent’ are not permitted under the law.
To obtain express consent, a positive opt-in consent is required. This means the person you want to send messages to must take a positive action to agree to receive those messages (they cannot be automatically opted in or asked to opt out). For example, express consent may be obtained by providing a consent box the individual may choose to click, or physically check to provide consent. Pre-ticked consent boxes (i.e. opt-out consent) are not allowed.
A request for express consent to send commercial electronic messages must state:
- That the person is agreeing to receive commercial electronic messages,
- That the person is agreeing to receive commercial electronic messages from you;
- Your name;
- That you are asking for consent on behalf of yourself;
- Your mailing address;
- Either a telephone number, email, or web address, for you; and
- A statement consent can be withdrawn.
Implied consent can arise in the context of certain existing business relationships, and certain personal relationships. However, CASL only allows reliance on ‘existing business relationships’, or ‘personal relationships’ in limited circumstances set out in the law.
Agents may only send commercial electronic messages on the basis of an established business or personal relationship with the recipient where the agent has an ‘existing business relationship’ or ‘personal relationship’ with the message recipient, defined as follows:
- “Existing business relationship” means where the message recipient has made an inquiry or application to you regarding a potential purchase or lease in the prior six (6) months, where the message recipient has made a purchase or lease directly from you in the prior two (2) years, or where the message recipient has an existing written contract with the Agent, or such a contract expired in the prior two (2) years.
- “Personal relationship” means a relationship between you as an individual and the individual message recipient, if you have had direct, voluntary, two-way communications and it would be reasonable to conclude you have a “personal relationship” with that individual considering any relevant factors such as shared interests, experiences, opinions and the information in your communications, the frequency of communications, the length of time since you have communicated, and whether you have met in person.
CASL places the burden of proof for consent on the entity claiming to have it. So, you must retain proof that you have obtained consent in accordance with these requirements for any contacts to whom you send commercial electronic messages, and provide such proof to The Real Brokerage upon its request.
CASL does not prohibit replying to a question when someone emails or texts you with a question. However, you cannot then use that contact information for marketing except in accordance with the law, and the requirements of this guide.
Message Content
In addition to consent requirements, CASL creates requirements for the content of commercial electronic messages. All commercial electronic messages, including both email and text messages, must comply with the following:
- There must be a functioning reply address (e.g. email for an email message, and phone number for a text message) to you as the sender.
- There must be a notice in the message that advises the recipient that he or she may reply to the message, via the functioning return contact information, to request that future solicitations not be sent (a functioning “opt-out” notice).
- The message must include your name and physical mailing address.
- The message must include at least one of your email address, web address, or a telephone number with access to you, or an agent or voicemail system for you.
- The message must clearly and conspicuously disclose that the message is an advertisement or solicitation.
- The use of deceptive subject lines or message content and/or false header information is prohibited.
- All opt-out requests, whether received by reply e-mail, reply text, regular mail, or other means, must be honored promptly and in no more than 10 business days.
For text messages, the information in a) to d) above may be on a website that is clearly and conspicuously linked from the text message, rather than be stated within the body of the text message itself.
For clarity, in each commercial electronic message, there must be an an opportunity to opt-out of receiving future marketing communications from the agent and the agent must ensure they have a process in place to honor such opt-out requests.
Despite this guidance, agents are responsible for determining their legal obligations for any method of contact they use, and are encouraged to consult their own legal advisor with questions.
What can an agent do to comply with CASL?
To mitigate the risk of agents having direct personal liability under CASL, agents must take steps to comply with its requirements. TRB recommends that each agent maintain a robust compliance policy to ensure that the agent is complying with CASL and their contractual obligations to TRB. An example of a policy that can be modified for an agent’s use is attached as Exhibit A.
The following steps can be taken to reduce an agent’s risk:
- Ensure that you send commercial electronic messages, whether email or text, only if you have the consent of the recipient to do so.
- Ensure that each commercial electronic message you send contains the identity of the sender (i.e. the agent), and their contact information (i.e. physical mailing address and one of an email or telephone number or web address).
- Ensure that each commercial electronic message you send contains an unsubscribe mechanism.
- Ensure that all unsubscribe requests are implemented promptly, and in all cases in no more than 10 business days.
- Do not source lists of potential contacts from third parties.
Exhibit A
[Company] Do Not Call and Anti-Spam Compliance Policy
The following sets forth [Company’s] policy for complying with the Unsolicited Telecommunications Rules and the Canadian Anti-Spam Law, including consumer requests not to be called, emailed, texted, or sent fax messages by [Company], and maintaining a list of such requests. The purpose of this Policy is to ensure that (a) telephone calls, fax messages, email messages, and text messages/SMS made by [Company]’s employees, team members, agents and representatives conform to federal requirements, and (b) [Company] honors requests not to be messaged. A copy of this Policy shall be made available to [Company’s] consumers or their representatives promptly upon request.
[Company] Do Not Call List
In making outbound telephone calls or faxes, [Company] maintains, follows and updates its own internal do-not-call list (“[Company] Do Not Call List”). The [Company] Do Not Call List includes those consumers and businesses who have directly communicated their desire not be called or faxed by the Company.
Consumers and businesses who do not want to receive marketing or promotional calls or faxes from [Company], may ask us to place their telephone/fax number on the [Company] Do Not Call List by:
- Sending a written request to [Insert Address]
- E-mailing [Company] at [Insert Contact Email]
- Calling [Company] at: [Insert Contact Number]
- Other reasonable means.
All such do-not-call or text requests must include the telephone/fax number(s) at which the person making the request no longer wishes to receive calls or fax messages from [Company].
The Company’s policy is to record each do-not-call or text request, regardless of the form in which it is made, at the time it is made and to place the requestor’s telephone number(s) on the [Company] Do Not Call List within a reasonable time after the request. This must always occur with 14 days of the request, and numbers must remain on the [Company] Do Not Call List for at least 3 years and 14 days after the date of the request.
The numbers listed in the [Company] Do Not Call List are excluded from any future calls or faxes by the Company, unless the applicable consumer or business later provides us permission or consent to call or fax that number or the call or fax is otherwise required or permitted by applicable law.
The Company’s policy is to maintain a record of all do-not-call or fax requests. The Company also prohibits its employees, representatives, or agents from using, accessing, selling or sharing the [Company] Do Not Call List (except for call suppression purposes).
National Do Not Call List
[Company] is registered with and subscribed to the National Do Not Call List. This is required by federal law, in an effort to prevent unsolicited telephone calls or faxes to any telephone number properly listed on the National Do Not Call List. This list is updated and maintained in accordance with the requirements of applicable federal law (e.g., such as receiving and implementing updates at least once every thirty (30) days). Records documenting this process are maintained by the Company in the regular course of its business. The Company also does not allow access to or use of the National Do Not Call List except for compliance with the National Do Not Call rules. It is prohibited to sell, rent, lease the National Do Not Call List.
The Company, and federal law, prohibit telephone or fax solicitations to numbers registered on the National Do Not Call List unless:
- the Company has an “established business relationship” with the consumer, as defined in the relevant statutes. An existing business relationship exists where a consumer has had voluntary two way communications with the Company, and has either:
- purchased or leased goods or services from the [Company] in the 18 months before you make a call/fax;
- made an inquiry or application to the [Company] regarding a product or service we offer in the six months before you make a call/fax; or
- there is a written contract between the [Company] and the call/fax recipient, or such a contract expired in the 18 months before the call/fax.
or
- the consumer has expressly consented to Company contacting them by telephone or fax, and the consent stated both the name of the Company and the specific telecommunications number the consumer was agreeing to be contacted at.
If a consumer with an established business relationship with the Company communicates directly to the Company his/her desire to be placed on the [Company] Do Not Call List, the Company’s requirement is to place the consumer on the List and to ensure that the consumer will not receive future telephone or fax solicitations from the Company.
Script requirements
Upon reaching the intended call recipient, you must state at the beginning of the call:
- Your name or fictious name as the individual calling;
- The name of [Company];
- The nature of the business interest or product being promoted; and
- The purposes of the communication.
During the call, you must disclose in a fair, reasonable, and timely manner, the price of any product or service whose supply or use is being promoted, and any material restrictions, terms or conditions applicable to it.
On request of the call recipient, you must provide:
- The [Company] telephone number [number[1]], and our email address, [email], or our mailing address [mailing address], for purpose of asking questions, making comments about the communication, or making or verifying a do not call request.
Fax messages must provide the following information at the top of the first page of the message, in 12 point font or larger:
- The name of [Company];
- The originating date and time of the fax; and
- The [Company] telephone number [number[2]], and our email address, [email], or mailing address [mailing address] for purpose of asking questions, making comments about the communication, or making or verifying a do not call request.
Other Telephone and Fax Requirements
Both telephone calls and fax messages for the purpose of solicitation are limited to the hours of 9 a.m. to 9:30 p.m. on weekdays, and 10 a.m. to 6:00 p.m. on weekends. All times are the applicable time zone of the call/fax recipient.
All telephone calls must display their originating number, or an alternate number at which the Company may be reached. You may not take any steps to obscure this information.
The following practices are prohibited:
- Sequential dialing,
- Calls or faxes to emergency lines,
- Calls or faxes to healthcare facilities
Finally, note that the requirements apply to “unsolicited” calls of fax messages. If a person calls you and leaves a voice message asking to be contacted, returning their call is not an “unsolicited” call, regardless of whether that person is on a Do Not Call List. However, that contact could not then be added to a marketing list for further unsolicited communications.
Consent for Email and Text Messages
Before sending commercial email, or text messages/SMS, the [Company] must establish the consent of the message recipient.
Requests for express consent must require a positive action from the person giving consent- for example, ticking an initially unticked, and optional, consent box. All express consent requests must use the following language:
☑️ Yes, I would like to receive commercial electronic messages, including promotions, offers, news, from [Company/Agent] by email and text message. I may later withdraw my consent to these messages. [Company/Agent mailing address] [Company/Agent email address].
“Implied consent” will only exist where the message recipient has an “Existing business relationship” with the [Company]. This means that the message recipient has made an inquiry or application to us regarding a potential purchase or lease in the six (6) months prior to the message, where the message recipient has made a purchase or lease directly from us in the two (2) years prior to the message, or where the message recipient has an existing written contract with us, or such a contract expired in the two (2) years prior to the message.
Content of Email and Text Messages
All commercial email messages sent by company must include the following footer:
“This message was sent by [Company]. To unsubscribe, reply to this message with “Unsubscribe” in the subject line. [Company/Agent mailing address] [Company/Agent email address]”
All commercial text messages must include the following statement:
“Reply STOP or Click Here to unsubscribe.”
“Click here” must link to a website that includes the following statement in a clear and prominent manner:
“Commercial text messages are sent by [Company]. To unsubscribe from commercial text messages from [Company], you may reply STOP to any of our text messages. [Company/Agent mailing address] [Company/Agent email address]”
Training
All [Company] personnel engaged in any aspect of telephone, fax, email, or text message/SMS solicitation are informed of and trained in the existence and use of both the [Company] Do Not Call List and the National Do Not Call List, the Company’s anti-spam policy, and the Company’s policies and procedures with respect to do-not-call or fax requests, and unsubscribe requests for email or text messages/SMS.
[1] This phone number must be local or toll free to the call recipient and must be answered by a live agent or a voicemail system that is always capable of taking messages. The voicemail system must provide a message informing the consumer their call will be returned within 3 business days, which then must be done in practice.
[2] This phone number must be local or toll free to the call recipient and must be answered by a live agent or a voicemail system that is always capable of taking messages. The voicemail system must provide a message informing the consumer their call will be returned within 3 business days, which then must be done in practice.