Legislation Update

November 2019 Charity & NFP Law Update

Terrance S. Carter

Ontario Bill 124, Protecting a Sustainable Public Sector for Future Generations Act, 2019, Receives Royal Assent

On November 7, 2019, Ontario Bill 124, Protecting a Sustainable Public Sector for Future Generations Act, 2019 (“Bill 124”) received Royal Assent, with sections 1-38 being proclaimed into force on November 8, 2019. In accordance with the provincial government’s Backgrounder, Bill 124 seeks to ensure that public sector compensation “reflects the province’s current fiscal reality” by establishing what the government’s Backgrounder describes as “a fair and reasonable approach to managing compensation”, as well as managing compensation growth. In this regard, Bill 124’s answer to this objective is to introduce a 1% cap annually on increases to public sector compensation for three years. Bill 124 applies its minimalist growth cap to certain public sector organizations, such as school boards, post-secondary institutions, children’s aid societies, not-for-profit long-term care homes, charitable or not-for-profit transfer payment recipients who received more than $1 million in annual funding in 2018, and hospitals within the meaning of the Public Hospitals Act. 

Schedule 31 of Ontario Bill 100, Protecting What Matters Most Act (Budget Measures), 2019 Proclaimed into Force

Schedule 31 of Ontario Bill 100, Protecting What Matters Most Act (Budget Measures), 2019 was proclaimed into force on November 4, 2019. This schedule amends the Freedom of Information and Protection of Privacy Act (“FIPPA”) by adding a new Part III.1 on “Data Integration”. New Part III.1 generally allows for the Government of Ontario to create “data integration units” to collect and use personal information, which may include that of charities and not-for-profits, from various sources, including institutions under FIPPA. In other words, Part III.1 allows provincial agencies and ministries to indirectly collect personal information from other provincial agencies and ministries, which may then be used to compile information to enable analysis for the allocation of resources, and for planning and evaluating the delivery of programs and services provided or funded by the Government of Ontario. The schedule also amends the grounds on which personal information can be disclosed by public sector organizations to law enforcement agencies.

Ontario Bill 138, Plan to Build Ontario Together Act, 2019 at Second Reading

Ontario’s Budget Bill 138, Plan to Build Ontario Together Act, 2019 (“Bill 138”) was introduced in the Legislative Assembly of Ontario on November 6, 2019. As of November 27, 2019, Bill 138 had passed Second Reading and has been referred to the Standing Committee on Finance and Economic Affairs. Bill 138 amends, among others, the Child, Youth and Family Services Act, 2017 (“CYFSA”); the Personal Health Information Protection Act, 2004 (“PHIPA”); and the Co-operative Corporations Act, which is discussed in the Corporate Update, below. 
Bill 138 amends the CYFSA by allowing a justice of the peace to issue warrants authorizing peace officers to bring a child to a place of safety in circumstances involving the child leaving or being removed from a child welfare authority’s care. It also introduces amendments related to the manner in which service providers request corrections to records of information.
Among the changes to PHIPA, Bill 138 prohibits the use of de-identified personal health information to identify an individual, subject to certain exceptions. Bill 138 also allows the Lieutenant Governor in Council to make regulations regarding the collection, use and disclosure of personal health information by and to Ontario Health, as well as regarding the collection, use and disclosure of personal health information by an Ontario Health Team. Further, Bill 138 gives Ontario’s Information and Privacy Commissioner the power to order the return of personal health information records that were improperly collected, used or disclosed, but only if that would not be reasonably expected to adversely affect the provision of health care to an individual.

Ontario Bill 136, Provincial Animal Welfare Services Act, 2019, Second Reading Debates

On October 30, 2019, Ontario Bill 136, Provincial Animal Welfare Services Act, 2019 (“Bill 136”) was introduced in the Legislative Assembly of Ontario. As of November 27, 2019, Bill 136 had passed Second Reading and was referred to the Standing Committee on Justice Policy. Bill 136 enacts the Provincial Animal Welfare Services Act, 2019, and repeals the Ontario Society for the Prevention of Cruelty to Animals Act (“OSPCA Act”). Bill 136 was introduced as a result of the Ontario Superior Court of Justice decision in Bogaerts v Attorney General of Ontario (discussed in the January 2019 Charity & NFP Law Update) where the court found that it was unconstitutional for the government to have enacted legislation that delegated search and seizure powers to a private organization, the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”). While these provisions of the OSPCA Act were invalidated, the court suspended its declaration for a year (“interim period”) in order to allow the legislature to establish a new framework for animal welfare enforcement.
Following this, as recently reported in the June 2019 Charity & NFP Law Update, the OSPCA relinquished its responsibilities with respect to the enforcement of animal welfare legislation in Ontario in March 2019. Subsequently, Ontario Bill 117, Ontario Society for the Prevention of Cruelty to Animals Amendment Act (Interim Period), 2019 was passed in order to address the interim period, receiving Royal Assent on June 6, 2019. In a decision of the Court of Appeal of Ontario released November 14, 2019 (Ontario (Attorney General) v Bogaerts), the court set aside the application judge’s declaration of invalidity, holding that the OSPCA’s search and seizure powers were not unconstitutional. Nonetheless, the OSPCA has relinquished its search and seizure powers, and Bill 136 will continue to be debated at the Legislative Assembly of Ontario.

Part X of the Child, Youth and Family Services Act, 2017 (Ontario) Coming into Force

On January 1, 2020, Part X of the CYFSA, which sets out the privacy framework for Ontario’s child and youth sector, will be brought into force. As was reported in the May 2018 Charity & NFP Law Update, the CYFSA replaced the Child and Family Services Act. Once in force, Part X of the CYFSA will establish new rules for the collection, use, and disclosure of, and access to, personal information held by ministry-funded and licensed service providers. Part X of the CYFSA fills in the “legislative gap” that presently exists in the child and youth service sector with regard to the personal information of children and youth by providing more consistent protections and rights for children, youth, and families.

Read the November 2019 Charity & NFP Law Update