What implied consent is
Implied consent is permission the law hands you for a fixed period because of something the other person already did. You did not ask for it and they did not grant it. It arrives with an expiry date attached, and when that date passes the permission is gone even though nothing else about the contact has changed.
It matters because Canada's Anti-Spam Legislation, CASL, prohibits sending a commercial electronic message unless the recipient consented, expressly or by implication, and the message carries the required identification and unsubscribe mechanism. Rental email sits squarely inside that. The Act defines a commercial electronic message to include one that offers to lease land or an interest or right in land, and it defines an electronic message as one sent by any means of telecommunication, including a text message. Your listing blast and your SMS follow-up are both covered.
The two clocks
Implied consent based on an existing business relationship runs on one of two timers, and the event that created the relationship decides which one you get. Section 10 of the Act sets out both.
Six months from an inquiry. If someone made an inquiry or application to you about renting, you have implied consent for six months from the day of that inquiry. A form fill on your site, a portal lead, an email asking whether the two bedroom is still available: each one opens a six month window.
Two years from a transaction. Where the person leased from you, the two year window is measured from the leasing transaction itself. A separate limb covers written contracts on matters other than a purchase or lease; it runs while the contract exists and for two years after it expires or is terminated, which is the limb that fits a management agreement or a vendor contract.
Here is the detail that catches people. The clock is set by what the other person did, not by what you did. Your fourth follow-up does not restart it. Their next inquiry does.
Three ways this goes wrong in leasing
Treating a lead as permanent
A prospect who inquired in March is outside implied consent by September. Dropping them into a new-availability email in November is a message with no consent behind it, unless they came back to you or gave you express consent in the meantime. Most leasing databases have no field that would surface this, so the list keeps growing while the share of it you may lawfully email keeps shrinking.
Going quiet when you did not have to
The consent rule has carve-outs, and the one that earns its keep in leasing is the quote. A message that solely provides a quote or estimate for land or an interest in land, where the recipient asked for it, is exempt from the consent requirement. Answering a rent question with the rent is covered. The exemption is narrow: it removes the consent requirement, not the obligation to identify yourself and include an unsubscribe mechanism.
Assuming consent transfers
Consent belongs to whoever sought it. The Electronic Commerce Protection Regulations require a consent request to name the person seeking consent and, where it is sought on behalf of someone else, that person as well. A renter who agreed to hear from a listing portal has not agreed to hear from you. The same rule points at agencies and third-party leasing teams: a message sent on behalf of an owner has to say whose message it is.
The onus sits with the sender
Section 13 of the Act is short and one-sided. A person who alleges they have consent to send a message has the onus of proving it. That turns consent into a record-keeping question rather than a memory question. A contact in your system with no consent basis and no date attached is a contact you cannot defend.
Maximum penalties run to $1,000,000 for an individual and $10,000,000 for any other person. Those are ceilings, not typical outcomes, and enforcement is not the only reason to care. Mailing people who forgot you six months ago produces complaints and dead addresses, and mailbox providers price that into whether your next leasing email reaches an inbox.
What express consent has to contain
Express consent does not expire. It stands until the person withdraws it, which is what makes it worth collecting while an implied window is still open. The regulations set out what the request must include:
- the name of the person seeking consent, the name of anyone it is sought on behalf of, and a statement of which is which
- a mailing address, plus a telephone number, email address or web address
- a statement that the person can withdraw their consent
The request can be oral or written, and it has to be sought separately for each act it covers. Consent also has to be given, which rules out a box that arrives pre-ticked.
Two obligations that never switch off
Consent is one half of the rule. The other half applies whether your basis is express consent, implied consent or one of the exemptions:
- identify the sender, and the person on whose behalf the message is sent, with contact information that stays valid for at least 60 days after the message goes out
- include an unsubscribe mechanism that works through the same electronic means, and give effect to an unsubscribe within 10 business days
What to change in your contact records this week
- Add two fields to every contact: consent basis and consent date. Basis is express, inquiry or transaction.
- Backfill the date from the triggering event, not from your last touch. The date of their inquiry, the date of the lease.
- Compute an expiry date at the point of capture and store it. Six months on an inquiry, two years on a transaction.
- Suppress on expiry rather than delete. An expired record still tells you the person is out of scope, and it revives if they inquire again.
- Ask for express consent inside the window you already have. The reply to a live inquiry is the cheapest place you will ever get it.
- Audit what your vendors send under your name. Causing or permitting a message to be sent falls under the same section as sending it.
None of this needs new software. It takes two date fields and the discipline to fill them in at capture, because reconstructing consent a year later is the part that cannot be done. The CRTC's CASL pages and the Act itself carry the authoritative wording, and anything close to the line belongs in front of counsel.