Express vs Implied Consent: Mastering CASL Compliance

The distinction between express and implied consent is at the heart of compliance with Canada's Anti-Spam Legislation (CASL / LCAP). For mortgage brokers, this distinction is fundamental because it precisely determines whom they can contact by email, text message or other commercial electronic communication, under what conditions and for how long. Rigorous and documented consent management is essential to avoid CASL's severe penalties (up to 10 million dollars per violation for businesses), maintain client trust and protect the professional reputation of the broker and their firm.

Express Consent: The Gold Standard

Express consent is the most robust and legally secure level of consent under CASL. It is obtained when the recipient actively and voluntarily agrees to receive commercial electronic communications from the broker. This consent must be documented, clear, specific and verifiable. Concretely, it can be obtained through an unchecked checkbox on an online or paper form, through the signature of a dedicated consent form or through recorded oral consent. Express consent remains valid indefinitely until the recipient unsubscribes. This is why mortgage brokers should systematically prioritize obtaining express consent from the very first contact with any prospect or client.

Implied Consent: A Temporary Authorization

Implied consent is a temporary authorization, of limited duration, based on specific factual circumstances defined by CASL. For mortgage brokers, the relevant implied consent situations are primarily two. The existing business relationship allows sending commercial messages to a client who obtained a mortgage loan or used the broker's services within the last two years following the end of that relationship. The inquiry allows sending messages to a prospect who contacted the broker for information about mortgage products within the six months following that inquiry. Upon expiration of these periods, the broker must cease all commercial message sending, unless they have obtained the recipient's express consent in the meantime.

Operational Consent Management

• Maintain a centralized and up-to-date register documenting the type of consent (express or implied), the exact date obtained, the method used and the scope of consent for each contact
• Set up automated alerts and reminders in the CRM before implied consent expiration to trigger a conversion campaign toward express consent
• Process all unsubscribe requests within a maximum of 10 business days, in accordance with CASL's legal requirement
• Train all firm staff (brokers, administrative assistants, coordinators) on CASL rules and internal consent management procedures
• Regularly audit the contact database to identify and remove contacts whose implied consent has expired and who have not provided express consent
• Document applicable exemptions (transactional messages, responses to requests, communications between professionals) and train staff on their correct use

Mandatory Content of Each Commercial Message

Regardless of consent type, every commercial electronic message sent by the broker must contain mandatory elements prescribed by CASL. Clear sender identification must include the broker's or firm's name, and ideally the AMF certificate number. Sender contact information must include a valid physical mailing address, a phone number and a functional email address. A clear, visible and functional unsubscribe mechanism must be included in every message, allowing the recipient to easily and freely opt out. This mechanism must remain accessible for at least 60 days after the message is sent.

Practical Cases and Common Situations for Brokers

Mortgage brokers regularly encounter situations requiring good mastery of consent rules. Sending a monthly newsletter with rate updates and mortgage market information constitutes a commercial message requiring consent. Sending a follow-up email to a client whose mortgage term is expiring in 120 days is covered by the implied consent of the business relationship if the current loan was obtained through the broker within the last two years. Sending a promotion to a contact list obtained at a networking event requires obtaining express consent from each person, as merely collecting a business card does not constitute consent. The wise broker will integrate consent management into each of their business processes to ensure continuous and systematic compliance.

The comprehensive CASL consent framework, with its careful distinction between express and implied consent, represents a balanced approach to protecting Canadians from unwanted commercial communications while allowing legitimate business relationships to be maintained through electronic channels. For Quebec mortgage brokers, mastering this framework is essential not only for avoiding the significant financial penalties associated with non-compliance but also for building a permission-based marketing practice that generates better client engagement, higher conversion rates and stronger long-term relationships. The broker who integrates systematic consent management into every aspect of their business operations will find that CASL compliance and marketing effectiveness are complementary objectives rather than competing priorities.