- New Canadian Anti-Spam Legislation takes effect on July 1, 2014
- Forms of Business
- If business plans are so important why do so few people actually write one?
- Why do I need a business plan?
- If I use 2 antiviruses in my computer then what will happen..?
- New Canadian Anti-Spam Legislation takes effect on July 1, 2014
What is electronic address harvesting?
Address harvesting refers to various techniques used to automatically compile lists of electronic addresses (e.g. email addresses) for bulk electronic mail-outs. This can be done by the spammers themselves or other entities (some known as electronic address harvesters) who then sell address lists.
How can I know that my address has been harvested?
While it’s very difficult and often impossible to know for sure, you can suspect you’ve been a target of address harvesting if you experience a significant increase in spam, either actually delivered to your electronic account or blocked by your spam filter.
If I can’t tell whether or not my address has been harvested, how can I alert your Office and trigger an investigation?
If you have reason to believe that your electronic address may have been harvested, you are encouraged to submit your concerns to the Spam Reporting Centre via fightspam.gc.ca. The OPC’s investigations may be triggered based on analysis of accumulated submissions from many users and/or information received from domestic and international partners.
Under Canada’s anti-spam law (CASL), what should I do if I suspect my address was harvested?
Once CASL is in force, make a submission and send details of the incident to the Spam Reporting Centre. Submissions received by the Centre will help the Office of the Privacy Commissioner determine whether there are reasonable grounds for launching formal investigations.
Personal information collection through illicit access to computer systems
What is the collection of personal information through illicit access to other people’s computer systems?
This refers to computer programs known as malware or spyware that collect personal information and are downloaded and remotely installed on a computer without the user’s knowledge.
Some kinds of spyware gather information about web-browsing.
Others can collect information about user computer activities and send that data to someone else via the Internet. This can include “keylogging”, the recording of individual keystrokes to capture things like passwords and credit card numbers.
Certain types of malware meanwhile can take the form of a virus specifically designed to harvest addresses from a user’s e-mail address book or instant messaging programs.
How can I know that my computer or device is infected with spyware?
Here are some warning signs of a spyware infection:
- a barrage of pop-up ads, even if your computer isn’t connected to the Internet;
- a hijacked browser that goes to sites different from those typed into the address box;
- sluggish performance when opening programs or saving files;
- a sudden or repeated change in your Internet home page;
- your web browser suddenly closes and stops responding;
- random error messages;
- new and unexpected toolbars; and
- new and unexpected icons in the system tray at the bottom of your computer screen.
How do I know if spyware on my computer or device has been collecting personal information?
Again, as with address harvesting, you may not know for sure. However if someone has taken the trouble to install spyware on your computer, it’s highly probable that personal information has been collected and relayed elsewhere.
To delve deeper, once CASL comes into force, send details of your concerns to the Spam Reporting Centre via fightspam.gc.ca. Submissions received by the Centre will help the Office of the Privacy Commissioner determine whether there are reasonable grounds for launching formal investigations of parties who are likely using spyware to collect personal information.
Reports, investigation and enforcement
What should I submit to the SRC to help investigations into electronic address harvesting and the collection of personal information through illicit access to other people’s computer systems?
Following July 1, to make a submission, go to fightspam.gc.ca, click on the link to the Spam Reporting Centre’s consumer interface and fill out the form.
Will I be contacted following the submission of my report?
You will be asked to provide contact information, however you will not be contacted in order to acknowledge receipt. Instead, one of the enforcement agencies mandated with enforcing CASL may contact you to support an investigation that may follow.
Why shouldn’t I just file a complaint dealing with electronic harvesting or spyware directly with the OPC?
It is important that you submit your concerns about email address harvesting, spyware and other similar electronic threats to the Spam Reporting Centre.
The Spam Reporting Centre is the central repository for information about spam-related activity and threats. While a submission from a single individual about a possible contravention may not provide sufficient evidence to enable the OPC to open an investigation, the collective submissions of many Canadians will help identify possible organizations contravening the legislation which may warrant action.
Your submission may also be a matter of interest under the CASL mandates of either the CRTC or the Competition Bureau.
How will the OPC investigate incidents of electronic address harvesting and the collection of personal information through illicit access to other people’s computer systems?
Analysis of the accumulated reports along with information received from domestic and international partners will greatly assist the OPC identifying email harvesters and spyware that collects personal information. Based on this information, the OPC will determine whether there are reasonable grounds to launch an investigation.
What penalties can the OPC use to enforce its responsibilities under CASL?
The OPC can investigate alleged contraventions of PIPEDA and issue reports setting out its findings and recommendations. Where possible, the OPC seeks to obtain voluntary compliance with its recommendations. The OPC does not have the power to issue orders or to impose penalties for contraventions of PIPEDA. However, if an organization fails to comply with the OPC’s recommendation, the OPC may apply to the Federal Court to obtain an order compelling an organization to correct its practices.
What if I hired a supplier to do something like email marketing? Is my business accountable for work done by a third party on my behalf?
Yes. Your business must make sure any third party whom you employ complies with the provisions of CASL and PIPEDA.
What questions should I ask of e-mail marketers who may be carrying out work for me to help ensure that I don’t run afoul of the electronic address harvesting provision?
Ask them to explain – in detail – where they get the e-mail addresses they will use to promote your business. If the list was purchased from elsewhere, then ask the marketers to explain how the e-mail addresses were originally gathered and how consent was obtained as required under CASL. For more information on this, please consult the CRTC’s resource page at www.crtc.gc.ca/antispam.
Email and other electronic messaging is an important way for me to reach and stay in touch with my customers. How can I ensure that I do this without breaking the law?
While there are some exceptions, in order to send people commercial electronic messages, you need to have their consent, an area in CASL over which the CRTC has responsibility.
What are the guidelines about gaining proper consent?
Under CASL, the CRTC is responsible for the rules regarding the sending of commercial electronic messages and appropriate consent.
Does the new Anti-Spam Legislation prohibit me from sending marketing messages?
No. Rather, it sets out some requirements for sending a certain type of message, called a commercial electronic message (CEM), to an electronic address.
If you are sending a CEM to an electronic address, then you need to comply with three requirements. You need to: (1) obtain consent, (2) provide identification information, and (3) provide an unsubscribe mechanism.
Section 6 of CASL applies to a commercial electronic message (CEM) that is sent to an electronic address. If both of these elements exist, then section 6 applies.
Section 6 does not apply if the CEM is not sent to an electronic address, as defined in the legislation. Also, section 6 of CASL does not apply to interactive two-way voice communication between individuals, nor does it apply to faxes or voice recordings sent to a telephone account. However, other requirements outside of CASL may apply in situations like these, such as the Unsolicited Telecommunications Rules.
What is CEM?
A key question to ask yourself is the following: Is the message I am sending a CEM? Is one of the purposes to encourage the recipient to participate in commercial activity?
When determining whether a purpose is to encourage participation in commercial activity, some parts of the message to look at are:
- the content of the message
- any hyperlinks in the message to website content or a database, and
- contact information in the message.
These parts of the message are not determinative. For example, the simple inclusion of a logo, a hyperlink or contact information in an email signature does not necessarily make an email a CEM. Conversly, a tagline in a message that promotes a product or service that encourages the recipient to purchase that product or service would make the message a CEM.
Some examples of CEMs include:
- 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;
- promoting a person, including the public image of a person, as being a person who does anything referred to above, or who intends to do so.
What is an electronic address?
An electronic address is defined in CASL as being: an email account, a telephone account, an instant messaging account, and any other similar account.
Some social media accounts may constitute a 'similar account'. Whether a "similar account" is an electronic address depends on the specific circumstances of the account in question. For example, a typical advertisement placed on a website or blog post would not be captured. In addition, whether communication using social media fits the definition of "electronic address," must be determined on a case-by-case basis, depending upon, for example, how the specific social media platform in question functions and is used. For example, a Facebook wall post would not be captured. However, messages sent to other users using a social media messaging system (e.g., Facebook messaging and LinkedIn messaging), would qualify as sending messages to "electronic addresses."
Websites, blogs and micro-blogging would typically not be considered to be electronic addresses.
Does CASL apply to messages sent by non-profit organizations?
Yes, CASL applies to activities of non-profit organizations, such as sending commercial electronic messages (CEMs) and installing computer programs. However, there is an exemption under the Governor-in-Council Regulations for CEMs sent by or on behalf of a registered charity, as defined under the Income Tax Act, where the primary purpose of the CEMs is to raise funds for the charity.
How can I obtain express consent?
Consent can be obtained either in writing or orally. In either case, the onus is on the person who is sending the message to prove they have obtained consent to send the message.
The CRTC has issued information bulletins to provide guidance and examples of recommended or best practices. Compliance and Enforcement Information Bulletin CRTC 2012-548, among other things, helps explain what information is to be included in a request for consent. The Bulletin also suggests some key considerations that may make tracking or recording consent easier, and therefore, may make it easier to prove consent. They are:
- whether consent was obtained in writing or orally,
- when it was obtained,
- why it was obtained, and
- the manner in which it was obtained.
The examples provided in the information bulletin are not exhaustive. They are simply examples of recommended or best practices. They may not necessarily be appropriate in every situation. Compliance will be examined on a case-by-case basis in light of the specific circumstances of a given situation.
How do I show that I have consent to send a commercial electronic message?
The onus is on the person who claims that they have consent to prove that they have such consent. Compliance and Enforcement Information Bulletin CRTC 2012-548 provides a few examples on how one can prove they have obtained express consent. Note that the examples provided are not exhaustive; they are simply practices that the Commission considers to be compliant with the legislation. Other practices may satisfy legal requirements imposed by CASL. However, their adequacy will be evaluated on a case-by-case basis in light of the specific circumstances of a given situation.
Someone gives me a business card: is that clear consent to add them to my distribution list?
You may have their implied consent to send them CEMs, as long as:
- the message relates to the recipient's role, functions or duties in an official or business capacity; and
- the recipient has not made a statement when handing you the business card that they do not wish to receive promotional or marketing messages (CEMs) at that address.
It is important to remember that the onus is on the sender to prove they received consent. Recall that consent under CASL is also implied if you have an existing business relationship, existing non-business relationship with the person. Compliance will be examined on a case-by-case basis in light of the specific circumstances of a given situation.
I conduct my business from home. Do I need to disclose my home address to fulfill the identification requirements?
No, you do not need to provide your home address. You can provide another valid mailing address as long as you can be contacted at that address. Please refer to paragraph 9 of Compliance and Enforcement Information Bulletin CRTC 2012-548 for more information. Of note, that Information Bulletin explains that a mailing address includes not only a street address, but also a P.O. Box, rural route address, or general delivery address.
I have a limited amount of characters that I can use when sending a message. What should I do if I cannot include all the required information in the commercial electronic message (CEM)?
Where it is not practicable to include this information in the body of a CEM, then a hyperlink to a webpage containing this information is an acceptable practice as long as the webpage is readily accessible at no cost to the recipient of the CEM. The link to the webpage must be clearly and prominently set out in the CEM.
For more information, refer to sections 2 and 3 of the Electronic Commerce Protection Regulations (CRTC) and Compliance and Enforcement Information Bulletin CRTC 2012-548.
What is unsubscribe mechanism?
Under CASL, you must include an unsubscribe mechanism in the commercial electronic messages (CEMs) that you send. For example, a CEM sent via SMS may state that an end-user can unsubscribe by texting the word "STOP." Another possibility is a hyperlink that is included clearly and prominently in an email that allows the end-user to unsubscribe by simply clicking it. The hyperlink may also be to a webpage that is readily accessible without delay and is at no cost to the recipient.
You can set up your unsubscribe mechanism in many different ways. It can be broad or very granular. For example, you can offer a choice to the recipient, allowing them to unsubscribe from all or just some types of CEMs your organization sends.
A key aspect is that an unsubscribe mechanism must be "readily performed." It should be simple, quick and easy for the end-user.
For examples of acceptable unsubscribe mechanisms under CASL, please see Compliance and Enforcement Information Bulletin CRTC 2012-548.
- Forms of Business
What is a Sole Proprietorship?
A Sole Proprietorship is an unincorporated business with one (sole) owner. The owner must be an individual. It is NOT a corporation.
What is a Partnership?
A Partnership is an unincorporated business with two or more partners operating under a firm name.
What is a Corporation?
A Corporation is an incorporated entity with its own rights and responsibilities as a distinct person under the law. A business corporation is owned by the shareholders and managed by directors chosen by the shareholders.
Who can form a corporation?
One or more competent individuals who are Canadian residents, 18 years of age or older and who are not in a status of bankrupt may form a corporation under the Ontario Business Corporations Act (OBCA) or under the Canada Business Corporations Act (CBCA).
Do I need to hire a lawyer to incorporate?
No. A lawyer may provide valuable advice, but is not a requirement for incorporation.
What is the governmental institution which deals with small businesses and corporation and how I can contact it?
The Ministry of Government Services plays a very important role in the delivery of government services to the people of Ontario and is responsible for the government's workforce, procurement and technology resources. One of their key activities is to provide government information to individuals and businesses. With the Ministry of Government Services, for the Business Name Registration program, you can:
- change principal place of business address;
- change business mailing address;
- change the business activity;
- change owner address;
- change partner names and addresses as long as one of the original partner’s names remains the same;
- cancel your business name registration.
You can access a wide range of information and services through its toll-free call centres, 64 walk-in Government Information Centres or online through:www.mgs.gov.on.ca/ - Ontario Ministry of Government Services www.canadabusiness.ca/ - Canada Business - Services for Entrepreneurs www.serviceontario.ca/ - Service Ontario www.ontario.ca/economy - Ontario Ministry of Economic Development www.cra.gc.ca/ - Canada Revenue Agency
By Mail:393 University Avenue Suite 200 Toronto ON M5G 2M2
In Person:375 University Avenue 2nd Floor Toronto ON Hours of Service: 8:30 am to 5:00 pm EST Monday to Friday – closed on statutory holidays 1-800-361-3223 (toll-free province wide) (416) 314-8880 TTY Services: (416) 212-1476
Should I incorporate?
This depends on your particular situation. The type of legal structure (sole proprietorship, partnership, or corporation) you decide on for your business will depend upon the type of business you are in, your potential risk and liability, and the amount of money you need to start and expect to earn. If your potential risk and liability are high, the incorporation process will provide protection. If you are starting a home-based business with little or no risk, you should consider the advantages of having a sole proprietorship. It is always a good idea to consult a lawyer and tax accountant.
I am a sole proprietor but I would like to change my business ownership to a corporation type. Can I do so?
No, you cannot change your business ownership or ownership type. If the ownership or ownership type changes you must close/cancel your existing account(s) and re–register.
A change of ownership or ownership type includes:
- From a sole proprietor to a different sole proprietor
- From a sole proprietor to a partnership
- From a sole proprietor to a corporation
- From a partnership to a different partnership (See Note A)
- From a partnership to a sole proprietor
- From a partnership to a corporation
- From a corporation to a different corporation
- From a corporation to a sole proprietor
- From a corporation to a partnership
Note: The Ministry of Government Services and Canada Revenue Agency may allow you to change partners as long as one of the original partners remains.
I want to change my business name. What I can do?
For the Ministry of Government Services a change of Business/Trade/Operating Name requires a new registration. You must cancel your existing business name registration, re-register the new business name and pay the applicable registration fee. Only with the Workplace Safety and Insurance Board (WSIB) you can change both your legal and trade names. Contact the Canada Revenue Agency (CRA) directly if you wish to update the Business/Trade/Operating Name or your Business Number (BN) or any program accounts.
Should I inform the Ministry of Government Services of changes in my business address?
For the Ministry of Government Services, if you are amending business name registration information or cancelling your business name registration, please do so as soon as possible to ensure that the public record is accurate. The Business Names Act requires changes to business information, such as addresses, business activity or partners, to be filed within 15 days after the change.
Can I use a post office box to register my small business?
No. A post office box, rural route, general delivery, suburban service or mobile route is not acceptable as a principal place of business address. For rural addresses, use Lot/Concession numbers or Part/Plan numbers. If there is more than one place of business, select one as the principal place.
If my business address is outside of Ontario how can I change my business name registration with the Ministry of Government Services?
If your business address is outside Ontario you have to contact the Ministry of Government Services for the information and instructions.
What is the difference between a Federal Business Number (BN) and a Business Identification Number (BIN)?
The Business Number (BN) is a 9-digit federal client identification number to which businesses can register program accounts. This number should be used when communicating with the Canada Revenue Agency (CRA) about accounts you have or wish to create. For example, if you would like to discuss your GST/HST account or you would like to create a payroll account, you should quote your existing BN. The Business Identification Number (BIN) is also a 9-digit number. This number is used by the Ministry of Government Services to identify a provincial Business Name Registration. It appears on the Ontario Master Business Licence.
What if I don’t know my Ontario Business Identification Number (BIN) or my Ontario Corporation Number (OCN)?
If you are unsure of your BIN or your OCN, please see the information on how to contact the Ministry of Government Services.
I am considering changing my Limited Partnership Declaration. Can I do it with the Ministry of Government Services?
No, you cannot. A Limited Partnership is a business with at least one general partner and one or more limited partners. General partners have unlimited liability and limited partners have limited liability up to the amount of their investment. In Ontario, filing a Declaration Form 3 under the Limited Partnerships Act creates a limited partnership.
What is the difference between trademarks and trade names?
A trademark is a word, logo, symbol or design, or a combination of one or more of these features, that is displayed for identification purposes to the public. The display can be on commercial goods or their labels or containers, in association with the advertisement of services, or for the purpose of identifying the services or goods to purchasers. A trade name is a name under which a particular business is carried on by an individual, partnership, or company. A trade name can be registered under the Trade Marks Act as a trademark only if it is also used as a trademark.
Should I register the trademark?
It is not mandatory to register a trademark, but it is advisable to do so in many situations. If a trademark has not been registered, the holder of the trademark has what are called common-law rights. In other words, rather than the Trade Marks Act and cases relating to the Act providing protection, the owner of the unregistered trademark must rely on the courts to determine what is fair or appropriate in the circumstances.
What are advantages and disadvantages of incorporating a company federally rather than provincially?
Both types, federal or provincial, companies can implement business throughout Canada. Federal incorporation may be of benefit if you want to protect your business name across Canada, or if you want to do international business with the expectation that a federal corporation may attract more prestige than a provincial one. You do not need to apply for an extra-provincial license anymore in Ontario, if your company is incorporated federally or from another province. Only if your company was incorporated outside of Canada, you will have to register for a license. However, no matter how you incorporate, you will still need to file an Initial Financial Return with the Province under the Corporations Information Act within 60 days of commencing business within Ontario.
What is a legal contract?
In fact, a contract is an agreement. To be legally enforceable a contract does not have to be in writing: a verbal agreement can be as good as a written from the law point of view. However, when large amount of money or important transactions are involved, it would be wise to have it in writing and hire a lawyer to do it. For instance, if you pay your neighbour to do some garden work in your front yard in April, and your neighbour agrees to it, your agreement becomes a legal contract. If it’s already June and your neighbour doesn’t show up, you can seek legal actions against him/her. However, if your neighbour hears that you need garden work, and says that he/she will “help,” it is not a legally binding contract because you offer nothing in return.
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