Cease and Desist FAQ - Canada
From LawDepot Law Library
What is a Cease and Desist Letter?
A Cease and Desist Letter is a letter that requests that an individual or organization stop a specified action and refrain from doing it in the future, with a threat of legal action if the recipient fails to comply. Anyone can send a Cease and Desist Letter.
A Cease and Desist Letter is different than a Cease and Desist Order, which is an order given by a judge to stop an illegal activity.
What is the “Debt Collection” letter used for?
The Debt Collection letter is used to stop Debt Collectors from inappropriately harassing you.
What is the “Copyright Infringement” letter used for?
The Copyright Infringement letter is used to demand that an individual or organization cease infringing on intellectual rights of your copyrighted work.
What is the “General” letter used for?
The General letter is used to demand that an individual or organization ceases an action or behavior. The General letter can be used to demand the cessation of the following:
- Property, boundary and neighborhood disputes.
The General letter can also be used for cases of debt collection or copyright infringement. However, the Copyright Infringement and Debt Collection letters are more specifically suited for those purposes.
Should I keep a copy of the letter for my own records?
Yes, you should retain a copy of the Cease and Desist Letter in case further legal action is required and the recipient of the letter attempts to deny having received it.
What method of delivery should I use?
To ensure that the Cease and Desist Letter is received, you should use certified or registered mail where possible. Where speed of delivery is more important than cost and the party is in the same geographical area, you can also use a process server (they will provide an affidavit of service or its equivalent upon delivery).
What is copyright infringement?
Copyright infringement is a violation of the rights granted to the holder of a copyright.
A copyright holder has the following exclusive rights:
- To produce and sell copies of the original work.
- To create derivative works (works based on the original).
- To display or perform the work publicly.
- To sell or assign the above rights to others.
When individuals or organizations do any of the above without the permission of the copyright holder, they are committing copyright infringement.
What are fair use and unfair use?
Fair use refers to the Fair use doctrine, which allows individuals or organizations to use limited amounts of a copyrighted work without first seeking permission from the rights holder(s). There is no science behind determining fair or unfair use. However, the following are guidelines:
- The more directly the new work copies from the original, the more likely it is to be considered unfair use.
- The more artistic or creative the original was, the more likely it is to be considered unfair use.
- If the original was a factual account, the less likely it is to be considered unfair use.
- The more the original is used in the new work, the more likely it is to be considered unfair use.
- The less the original is changed in the new work, the more likely it is to be considered unfair use.
- If the new work is intended for commercial purposes, as opposed to educational or nonprofit purposes, it is more likely to be considered unfair use.
- If the new work could hurt the financial viability of the original, it is more likely to be considered unfair use.
Who should I send a Copyright Infringement Cease and Desist Letter to?
You should send a copy of your Copyright Infringement Cease and Desist Letter to the person or organization that is using your copyrighted material and your attorney, if you have one. And don’t forget to keep a copy (or several) of your Cease and Desist Letter for yourself.
What is a CCA request?
Section 77(1) and 78(1) of the Consumer Credit Act requires a creditor or debt collection agency to provide a true signed copy of the original executed credit agreement and any related documentation. If the creditor or debt collection agency doesn't provide this information within 12 working days plus time for service, they are prevented from enforcing or collecting on the account against you while they are in default of your request. The agreement is then rendered unenforcable unless allowed by a court. Section 77(1) is for fixed amount loans and section 78(1) are for line of credits and other revolving loans. You need to submit a £1 statutory fee with your request.
What is a S.A.R. (Subject Access Request)?
Section 7 of the Data Protection Act 1998 allows you to request all personal data held by the creditor about you. The creditor has 40 days to provide this information. You need to submit a maximum statutory fee of £10 with your request. If a creditor fails to comply with this request, you can apply to the courts to require the creditor to provide this information. You can also report them to the Information Commissioners Office that can demand that they comply.
What is the difference between a CCA request and a SAR?
The CCA & the Subject Access Request are two different demands but with simular end results.
A CCA request is only 12 working days while a SAR is 40 days. If your agreement has been renewed, some creditors will only provide the renewal agreement and not the original agreement with a CCA request, while a SAR the creditor has to provide all agreements on file.
How do I make the S.A.R - (Subject Access Request)?
You must make your request in writing. The bank is entitled to charge a maximum fee of £10 for this. (s.7 (2)) You are entitled to make further SARs at reasonable intervals.
You can send your S.A.R. to the Bank at its address that it registered with the Data Protection Commissioner. You can search the database at Information Commissioners - Data Protection Public Register. Mark the envelope for the attention for the Data Controller. Send this through your local Post Office and be sure to obtain a FREE Certificate of Postage. Do not throw away the posting slip until you have received the information you have required.
The bank is entitled to ask you for such information as it reasonably requires to satisfy it as to your identity. (s.7 (3)) and this may include you filling in a form.
What is a working day?
It is Monday to Friday, excluding Saturday, Sunday and bank holidays. You don't count the day that they receive it (delivery date).
Where does the 12 working days for a section 77/78 notice come from?
Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 SI 1983/1569
What is the difference between the Office of Fair Trade and the Trading Standards Office?
The Office of Fair Trade (OFT) does not deal with individual complaints from consumers, but will accept information that may assist them to determine a company's suitability to hold a consumer credit licence.
The Trading Standards Office will deal with individual complaints from consumers.
When is a debt statute barred?
Section 5 of the Limitation Act 1980 provides that in England, Wales and Northern Ireland an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. In Scotland, Section 6(1) of the Prescription and Limitation (Scotland) Act 1973 provides that "If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of 5 years: (a) without any relevant claim having been made in relation to the obligation, and (b) without the subsistence of the obligation having been relevantly acknowledged, then as from the expiration of that period the obligation shall be extinguished:".
If the last payment was made more than the six/five years ago and no further communication, acknowledgment or payment has been made since that time, the creditor is no longer able to take any court action against the debtor to recover the alleged amount owed.
Can a collection agent still enforce the debt against me if I am disputing the amount or debt?
Debt collection agents are holders of a Consumer Credit Licence and, as such, they are obliged to comply with the Office of Fair Trading Guidelines on Debt Collection. Section 2.8 of the Office of Fair Trading's Guidance on debt collection also provides that it is unfair practice: (a) where the debt collection agent pursues third parties for payment when they are not liable; or (b) where debt collection agent do not cease collection activity while investigating a reasonably queried or disputed debt.
According to Regulation 3 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), it is unfair practice to threaten to take any action which cannot legally be taken.
What is a Section 10 Data Protection Act 1998 Legal Notice?
Under Section 10 of the Data Protection Act 1998, a debtor can demand that a creditor or debt collection agent cease processing any of the debtor's data by any means whether written or electronically, with third party individuals and organisations.