Legislation Update

by | May 27, 2021 | Uncategorized

May 2021 Charity & NFP Law Update

Bill C-30, Budget Implementation Act, 2021, No. 1

On April 30, 2020, the Honourable Chrystia Freeland, Deputy Prime Minister and Minister of Finance, introduced Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures (“Bill C-30”) in the House of Commons for first reading. At the time of writing, Bill C-30 is in second reading in the House of Commons, but is also being studied by the Standing Senate Committee on National Finance and other Senate Committees. Bill C-30 includes a number of amendments to the Income Tax Act that will impact charities and not-for-profits, as outlined  in Charity & NFP Law Bulletin No. 492, with certain amendments specifically geared towards Journalism Organizations as qualified donees, as described in the June 2020 Charity & NFP Law Update.

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3 Days of Paid COVID-19 Leave in Ontario, with Reimbursement Available to Employers

by | May 27, 2021 | Uncategorized

May 2021 Charity & NFP Law Update

Ontario’s government has now passed into law three days of paid leave for employees affected by COVID-19. Bill 284, COVID-19 Putting Workers First Act, 2021 (the “Act”) received Royal Assent on April 29, 2021. The new legislation introduces “infectious disease emergency leave pay” into the Employment Standards Act, 2000 (“ESA”) allowing workers up to $200 a day and three paid days off for reasons of an infectious disease, such as COVID-19. This is now retroactive to April 19, 2021 and will be effective until September 25, 2021, when the Canada Recovery Sickness Benefit program expires; however a later date may be prescribed. The provincial government will reimburse employers, including charities and not-for-profits, for the allowable amount. The provincial government will partner with the Workplace Safety and Insurance Board to deliver the new infectious disease emergency leave pay (“IDELP”) program. According to an April 28, 2021 announcement, “Employers and their workers can call a dedicated COVID-19 Sick Days Information Centre hotline at 1-888-999-2248 or visit Ontario.ca/COVIDworkerbenefit to get more information and updates” about the paid leave days.

The Act enables IDELP when there is a “designated infectious disease” under the ESA regulations, which currently only applies to COVID-19. Among the new provisions added to the ESA by the Act are the following:

Leave of absence with pay

50.1(1.2) In addition to any entitlement under subsection (1.1), an employee is entitled to a paid leave of absence if the employee will not be performing the duties of the employee’s position because of one or more of the following reasons related to a designated infectious disease:

1.  The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.

2.  The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.

3.  The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.

4.  The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.

5.  The employee is providing care or support to an individual referred to in subsection (8) because,

i.  the individual is under individual medical investigation, supervision or treatment related to the designated infectious disease, or

ii.  the individual is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.

“Treatment” related to the designated infectious disease “includes receiving a vaccine for the designated infectious disease and recovery from associated side effects.” An employee would receive the lesser of $200 and their regular wages for a day of IDELP, and a partial day taken is deemed to be a full day. The Act includes technical provisions governing an employee who is entitled to paid time off in their employment contract, on a paid public holiday, or interactions with other sections of the ESA that affect the allowable amount and whether or how much an employer can be reimbursed up to a maximum of $200 per day.

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Churches and Their Leaders in Ontario Fined for Breaches to Religious Gathering Limits

by | May 27, 2021 | Uncategorized

May 2021 Charity & NFP Law Update

Over the last several months, and since the decision reported on January 2021 Charity & NFP Law Update, the Ontario Superior Court of Justice has issued at least two restraining orders, followed by findings of contempt of the orders and the imposition of fines against religious organizations and their leaders in Ontario, for continued defiance of the restrictions in Regulation 82/20 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“ROA”), in R v The Church of God (Restoration) Aylmer (“Aylmer”) and AG of Ontario v Trinity Bible Chapel et al (“Trinity”).

In Aylmer, the Ontario Superior Court of Justice released its reasons for sentence on May 14, 2021, imposing fines against the Church of God (Restoration) Aylmer, a pastor and an assistant pastor, for contravening the restrictions in Regulation 82/20 with regard to indoor gatherings for religious services. The first breaches of the restrictions were reported on January 24 and January 31, 2021, when Regulation 82/20 provided that indoor gatherings for the purpose of a religious service were limited to 10 people and required all attendees to wear masks or face coverings. As a result of these breaches, the court issued a restraining order on February 11, 2021 ordering the church and the pastors, as well as their employees, agents, officers, directors and anyone else acting on their behalf, to comply with Regulation 82/20 in respect of gatherings for the purpose of a religious service, rite or ceremony at, inside, or in conjunction with the operations of the Church of God (Restoration) Aylmer. However, the breaches continued after the restraining order and, on April 25, 2021, Pastor Henry Hildebrandt “openly and flagrantly conducted a live-streamed service […] which included in excess of 100 unmasked congregants […] inside the Church’s John Street place of worship”. On April 30, 2021, the court found the respondents in contempt of the restraining order. The church and the pastors continued to hold large indoor services on May 2 and May 9, 2021, in breach of Regulation 82/20. The court found that, at these gatherings, pastor Hildebrandt was “not so much conducting a service of worship as he [was] promoting his role as leader of the resistance to these public health restrictions”.

In Trinity, the Judge found that the senior pastor and the church leadership made their own determination as to the healthcare risks and related concerns of COVID-19 during the province-wide lockdown in effect from December 26, 2020, and concluded that the problem was in long-term care homes and not churches. The church held services on December 26, 2020, and January 3, 2021, with more than 10 persons in attendance. The court issued a restraining order on January 22, 2021, but the church held two indoor services for 225 people with full knowledge of the order on January 24, 2021. In its reasons for sentence released on February 23, 2021, the court found that the senior Pastor Jacob Reaume “encouraged ‘civil disobedience’ and encouraged others to attend the service in breach of the Order.” In the court’s opinion, “this is a case of a public, notorious and intentional breach of a court order” in the context of a public health risk that the Ontario regulation was intended to address.

In Aylmer, the court acknowledged that the respondent church had brought an application challenging the constitutionality of the restrictions under the ROA for infringing on the fundamental freedoms protected in section 2 of the Canadian Charter of Rights and Freedoms. However, it stated that “as long as the law remains in effect, the Court has a right to enforce its terms and any orders made pursuant thereto”. The court made the same statement in Trinity but also noted that the respondent church and its leaders did not take steps that were available and known to them to challenge the legislation under the Charter before the contempt. For that reason, they could not assert that freedom of religion justified their breach of the restraining order.

In both cases, the court ordered the doors of the church to be locked to deter further breaches of the regulations. The court recognized the church building as the centre of community for the congregation but also stated that the restrictions and state of emergency were put in place to protect the health of the community and save lives.

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Ontario COVID-19 Update

by | May 27, 2021 | Uncategorized

May 2021 Charity & NFP Law Update

On May 20, 2021, the Ontario government released its Roadmap to Reopen (the “Roadmap”), a three-step plan to gradually ease public health measures and reopen the province. The steps of the Roadmap are based on the vaccination rate of adults in the province and other key indicators.

In this regard, the Roadmap outlines the following three steps:

  • Step One will begin after 60 percent of Ontario’s adults have received at least the first dose of a COVID-19 vaccine, subject to certain key public health indicators. Step One will permit outdoor activities and gatherings of up to 10 people as well as non-essential retail at 15 percent capacity. Outdoor gatherings for purposes of a religious service, rite and ceremony will be permitted provided 2 metres’ physical distancing can be maintained.
  • Step Two will begin after 70 percent of adults in the province have received at least the first dose of a COVID-19 vaccine, 20 percent of adults have received two doses, and other key public health indicators have been met. Step Two will allow outdoor sports and outdoor gatherings of up to 25 people, as well as limited indoor services subject to capacity limits and provided face coverings are worn. Indoor gatherings for purposes of a religious service, rite or ceremony will be permitted at 15 percent capacity.
  • Step Three will begin after 70 to 80 percent of adults in Ontario have received at least one dose and 25 percent of adults have received two doses of a COVID-19 vaccine, subject to certain key public health indicators. Step Three will allow access to indoor settings, such as indoor sports and recreational fitness as well as indoor dining, museums, art galleries and libraries, and casinos and bingo halls, subject to capacity limits. Indoor and outdoor gatherings for purposes of a religious service, rite or ceremony will be permitted with capacity limited to permit 2 metres’ physical distancing.

The Roadmap states that Step One and Step Two will each last no less than 21 days. The government has stated that it expects Ontario to enter Step One of the Roadmap the week of June 14, 2021, but will confirm closer to the expected start of Step One. Amending regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 have introduced new rules applicable to areas in Stages 1, 2 and 3 of the Province’s reopening framework. However, it is unclear how the Roadmap will fit within that framework.

Until Ontario is ready to start Step One of the Roadmap, the orders issued under the Emergency Management and Civil Protection Act, including Ontario Regulation 265/21: Stay at Home Order, currently set to expire on June 2, 2021, are expected to remain in effect. As well, because the government’s powers under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 were limited to an initial period of 1 year, the government has stated that it plans to table a bill in the Legislature to extend these powers to December 1, 2021.

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Muttart Foundation Publishes Comprehensive Resource Book for Charities and Not-for-profits

by | May 27, 2021 | Uncategorized

May 2021 Charity & NFP Law Update

The Muttart Foundation has provided the charitable and non-profit sector in Canada with a tome of valuable information. Published on May 12, 2021, Intersections and Innovations: Change for Canada’s Voluntary and Nonprofit Sector (the “Book”) is a loose-leaf textbook edited by Prof. Susan D. Phillips of Carleton University and Bob Wyatt, Executive Director of The Muttart Foundation. The Book is composed of 36 chapters — each a separate essay — by 52 respected academic and sector authors on a variety of topics of interest to the charitable and non-profit sector. Topics as diverse as “The Regulation of Charities in Canada”, “The Evolution of the Legal Meaning of Charity”, “New Technologies and Fundraising”, “Human Resource Management in the Canadian Nonprofit Sector”, “Indigenous Peoples, Communities and the Canadian Charitable Sector”, and “Impact Investing in Canada” are just a handful of the chapters available in the Book’s more than 600 pages. The entire Book is published under a Creative Commons licence and has been made available for free, non-commercial use by The Muttart Foundation.

The publication of the Book is another effort to “build the capacity of charities” in Canada, according to mission statement of The Muttart Foundation, which was incorporated in Alberta in 1953 as a private charitable foundation, and has been focusing on research and support for the charitable sector for decades. The authors of the 36 essays in the Book “bring different perspectives on the role and inner workings of Canada’s charities,” The Muttart Foundation states. The Book is dedicated to “all of those in, or interested in, Canada’s charitable sector.” Organizations within the charitable sector have lauded the Book as the “first, comprehensive book about our country’s sector,” according to Carleton University, and “an unprecedented insight into the work of organizations whose diversity is exceeded only by their desire to serve,” according to Charity Village. The Ontario Nonprofit Network has similarly reported that the Book “is a comprehensive resource examining Canada’s nonprofit and charitable sector.” The Book is clearly a major milestone for academic research of, and practical application for, the charitable and non-profit sector in Canada for years to come.

Read the May 2021 Charity & NFP Law Update