by Dev User | Feb 25, 2021 | Uncategorized
February 2021 Charity & NFP Law Update
After the provincial emergency declared under section 7.0.1 of the Emergency Management and Civil Protection Act (“EMPCA”) ended at the end of February 9, 2021, the provincial government announced in a news release its plan to transition Ontario’s public health regions out of the shutdown and into a modified COVID-19 Response Framework: Keeping Ontario Safe and Open (the “Framework”).
In this regard, as of February 22, 2021, the Stay-at-Home order filed as Ontario Regulation 11/21 under the EMCPA was revoked for most public health regions in the province. However, as per a news release dated February 19, 2021, the shutdown measures and three separate Stay-at-Home orders will continue to apply until Monday, March 8, 2021 unless otherwise extended in the Toronto and Peel Public Health Regions, as well as the North Bay-Parry Sound District. The provincial government is still advising Ontarians to continue to adhere to public health measures, stay home as much as possible, and limit close contact to their household.
As well, the Ontario government filed the latest amendments to regulations under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“ROA”), namely: Ontario Regulation 82/20: Rules for Areas in Stage 1, Ontario Regulation 263/20: Rules for Areas in Stage 2, and Ontario Regulation 364/20: Rules for Areas in Stage 3. The designation of which health units are in each stage of reopening under the Framework is established in Ontario Regulation 363/20: Stages of Reopening. Of note, the modified Framework imposes the following rules for gatherings for purposes of a wedding, a funeral or a religious service, rite or ceremony, as described below.
For public health regions in Stage 1 shutdown and grey zones, organized public events, social gatherings or gatherings for a religious service or ceremony are limited to 10 people, even if held at a private dwelling, and with special rules for gatherings in motor vehicles.
For public health regions in Stage 2 red zone, social gatherings such as wedding receptions are limited to five (5) people if the gathering is held indoors and twenty-five (25) people if the gathering is held outdoors. In the case of gatherings for the purposes of a wedding, a funeral or a religious service, rite or ceremony itself, indoor gatherings held in a building or structure other than a private dwelling are limited to thirty percent (30%) of the capacity of the particular room, and outdoor gatherings are limited to 100 people. Both indoor and outdoor gatherings require that all persons attending the gathering comply with public health guidance on physical distancing.
For public health regions in Stage 3 green, yellow, and orange zones, social gatherings such as wedding receptions are limited to fifty (50) people if the gathering is held indoors, and one hundred (100) people if the gathering is held outdoors. However, if the gathering is held in a residential building or any places not operated by a business or organization, the limits are ten (10) people if the gathering is held indoors and twenty-five (25) if the gathering is held outdoors. Similar to Stage 2 public health regions, in the case of gatherings for the purposes of a wedding, a funeral or a religious service, rite or ceremony itself, indoor gatherings held in a building or structure other than a private dwelling are limited to thirty percent (30%) of the capacity of the particular room, and outdoor gatherings are limited to 100 people. Both indoor and outdoor gatherings require that all persons attending the gathering comply with public health guidance on physical distancing.
After returning to the colour-coded Framework, public health regions are required to stay in their stage of reopening for at least two weeks or until the government determines that the region should be moved to a different stage of reopening or back to lockdown as an “emergency brake” measure. Charities and not-for-profits should regularly review the rules applicable to the public health regions where they operate and how they apply to their specific situation.
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by Dev User | Feb 25, 2021 | Uncategorized
February 2021 Charity & NFP Law Update
The Ottawa Region 2021 Charity & Not-For-Profit Law Webinar, hosted by Carters Professional Corporation on February 11, 2021, had over 500 in attendance from the charitable and not-for-profit sector. The special speakers this year were The Honourable Ratna Omidvar, C.M., O.Ont., Senator for Ontario and Former Deputy Chair of the Special Senate Committee on the Charitable Sector, as well as Tony Manconi, Director General of the Charities Directorate of the Canada Revenue Agency. Designed to assist charities and not-for-profits in understanding developing trends in the law in order to reduce unnecessary exposure to legal liability, with a focus this year on legal issues that charities and not-for-profits can face when operating virtually, the Charity & Not-For-Profit Law Seminar has been held annually since 2008. All handouts and presentation materials are now available at the links below:
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by Dev User | Feb 25, 2021 | Uncategorized
February 2021 Charity & NFP Law Update
Public Safety Canada Updates List of Suspected Terrorist Groups
Further to an announcement released by Public Safety Canada on February 3, 2021, the Government of Canada has added 13 new groups to the list of terrorist entities under the Criminal Code. The list, maintained by the Governor in Council on the recommendation of the Minister of Public Safety and Emergency Preparedness pursuant to section 83.05 of the Criminal Code, sets out entities that the Government of Canada has reasonable grounds to believe have either knowingly participated in or facilitated a terrorist activity, or have knowingly acted on behalf of, at the direction of, or in association with such an entity.
The 13 new listed entities are: Atomwaffen Division, the Base, the Proud Boys, Russian Imperial Movement; three Al Qaida affiliates including Jama’at Nusrat Al-Islam Wal-Muslimin, Front de Libération du Macina, and Ansar Dine; and five Daesh affiliates, including Islamic State West Africa Province, Islamic State in the Greater Sahara, Islamic State in Libya, Islamic State East Asia, and Islamic State – Bangladesh; and Hizbul Mujahideen. These additions bring the total listed terrorist entities up to 73.
The Government of Canada is also required to review each listed entity every five years to determine whether they should remain on the list. In this regard, the following seven entities were reviewed, and will remain on the list: Al Qaida in the Arabian Peninsula, Al Qaida in the Indian Subcontinent, Al Shabaab, Islamic State – Khorasan Province, Al-Ashtar Brigades, and Fatemiyoun Division.
The CRA uses listings to support the denial or revocation of charitable status for organizations that maintain connections to listed entities. Charities involved in activities both inside and outside of Canada should therefore have adequate due diligence procedures in place to reduce the risk of unknowingly providing any kind of support to the listed entities.
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by Dev User | Feb 25, 2021 | Uncategorized
February 2021 Charity & NFP Law Update
Waiting six years while on unpaid leave from work is too long to claim constructive dismissal, according to the Ontario Labour Relations Board (“OLRB”). In Basdaye Kissoon v Victorian Order of Nurses (VON), the applicant employee alleged constructive dismissal and reprisal against her employer, neither of which were found by the OLRB in its December 7, 2020 decision. The case offers a summary of the principles of constructive dismissal, which is important for employers, including charities and not-for-profits, to know. In a common law civil action, constructive dismissal can result in expensive termination payments in lieu of reasonable notice if employers unilaterally change the terms of the employment contract, resulting in a potential wrongful termination claim by an employee. This Bulletin summarizes the facts of the case and the legal analysis applied by the OLRB.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 487.
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by Dev User | Feb 25, 2021 | Uncategorized
February 2021 Charity & NFP Law Update
On January 28, 2021, the Ontario Superior Court of Justice released its decision in Caplan v. Atas, recognizing a new common law tort of harassment in internet communications. The ruling emanated from a shocking, decades-long, international campaign of internet harassment and defamation against an “ever widening group of people”.
In the four actions underlying this decision, the defendant, Atas, was found to have carried out “extraordinary campaigns of malicious harassment and defamation” against a vast number of people, including her own lawyers, the lawyers and agents (and their relatives) of a bank that foreclosed on two properties owned by Atas in the early 2000s, as well as a former employer, its successor, owners, managers and employees, and their siblings, children and other family members, adding up to as many as 150 victims. The court found that Atas carried these acts over the internet on a number of sites, including social media, while hiding her identity with false names and pseudonyms, unchecked, for many years, with the intent of causing emotional and psychological harm. The Court determined that the majority of the thousands of postings were seriously defamatory of the plaintiffs, with a few being “merely abusive” and that Atas had posted or caused them to be posted. The Court noted that Atas had already ignored court orders to stop posting online.
The Court also determined that the existing privacy tort of intrusion upon seclusion was not applicable and that the existing tort of intentional infliction of mental suffering was not adequate to address the situation. The Court reviewed various reports and analyses regarding the prevalence and devastating impact of online harassment, which differs from other forms of harassment because it is an “unstoppable intrusion” that the perpetrator can perform from anywhere remotely and the victim has no escape in their own home or private domain. As well, stating that the facts of this case “cry out for a remedy” in the face of insufficient traditional remedies, and noting that the Court of Appeal in Merrifield v. Canada (Attorney General) had left the door open for the tort of harassment to be recognized in another case, the Court held that:
[T]he tort of internet harassment should be recognized in these cases because Atas’ online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery.
Based on American case law, the court proposed the following stringent test for the tort of harassment in internet communications:
where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.
The Court held that the facts of these cases clearly met this stringent test.
As previous court orders and even incarceration had been ineffective to stop the harassment, and as Atas was indigent and no monetary compensation would be possible, the court vested title to the postings in the plaintiffs with ancillary orders enabling them and other victims to take steps to have the content removed. The Court also granted a permanent injunction prohibiting Atas from any internet communications with respect to all plaintiffs and other victims of her defamation and harassment, together with their families, related persons and business associates, to prevent her from shifting her focus to a new set of victims.
It is unclear whether these remedies will be sufficient to undo the harm caused by Atas to her victims and their reputations.
However, this decision is an important step for the common law in Ontario and provides new and creative remedies that may assist victims of internet harassment. This case is also a reminder of the challenges and risks introduced by the internet and the need for the boards of directors of charities and not-for-profits with an online presence to ensure that they have appropriate policies and procedures in place to protect personal information as well as monitor and control the use of information technology by employees and volunteers, both within and outside of the workplace environment. Charities and not-for-profits should have appropriate social media and information technology use policies in place, as is increasingly becoming the norm in terms of governance. Such policies provide a set of rules and standards to govern how individuals employed by or associated with the organization conduct themselves online and allow the organization to hold them accountable for misconduct.
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