by Dev User | Oct 30, 2020 | Uncategorized
Charity & NFP Law Bulletin No. 478
In a move to provide protection for workers, volunteers and organizations from certain types of liability related to COVID-19, the government of Ontario introduced Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 on October 20, 2020, which was most recently carried on division and referred to the Standing Committee on Justice Policy on October 27, 2020. If passed, Schedule 1 of Bill 218 will enact the Supporting Ontario’s Recovery Act, 2020 upon Royal Assent (the “Act”), which will protect persons from legal liability from claims where other individuals either have, or potentially have been, infected with or exposed to COVID-19.
According to the government’s October 20th announcement of the draft measures, the Act is intended to protect those who “make an honest effort to follow public health guidelines and laws relating to exposure to COVID-19. At the same time, it will maintain the right of Ontarians to take legal action against those who willfully, or with gross negligence, endanger others.” The government further indicated that this targeted protection will be available to a range of persons, including healthcare workers and institutions, charities, non-profit organizations, and coaches, volunteers and minor sports associations. This Bulletin provides a brief summary of the Act and its impact on charities and not-for-profits, if passed.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 478.
Read the October 2020 Charity & NFP Law Update
by Dev User | Oct 30, 2020 | Uncategorized
October 2020 Charity & NFP Law Update
Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)
On October 5, 2020, the Federal government reintroduced Bill C-7, An Act to amend the Criminal Code (medical assistance in dying) (the “Bill”), proposing changes to the Criminal Code’s provisions on medical assistance in dying (“MAID”). The News Release of the same date explains that the Bill is the same that was introduced in the previous session of Parliament on February 24, 2020 which was outlined in the February 2020 Charity & NFP Law Update.
The Bill removes from the Criminal Code the requirement that a person’s death must be reasonably foreseeable to be eligible for MAID because the Superior Court of Quebec found the requirement to be unconstitutional in Truchon c. Procureur general du Canada. However, to be eligible for MAID, a person must still have a “grievous and irremediable medical condition” as defined in the Criminal Code. If mental illness is the sole underlying medical condition, the person is not eligible for MAID. The Bill provides new provisions on who can witness the signing of a request for MAID and expands the collection of data related to MAID.
Removal of the requirement that death be reasonably foreseeable created the need for additional safeguards for people whose death is not reasonably foreseeable, so that the Bill provides two sets of safeguards, one applicable to persons whose death is reasonably foreseeable and another applicable to persons where it is not. For example, there is no waiting period between the signing of a request for MAID and the day it is provided for people whose death is reasonably foreseeable. By contrast, there is a 90 day waiting period for people whose death is not reasonably foreseeable unless two physicians judge that loss of capacity is imminent. When natural death is reasonably foreseeable, the Bill provides criteria for waiving the requirement that consent be given immediately before MAID is provided. The Bill does not deal with advance requests or the eligibility of mature minors for MAID.
Bill C-6, An Act to amend the Criminal Code (conversion therapy)
On October 1, 2020, Bill C-6, An Act to amend the Criminal Code (conversion therapy) (“Bill C-6”) was introduced by the Federal government in the House of Commons. As explained in the News Release of the same date, Bill C-6 is similar to Bill C-8, An Act to amend the Criminal Code (conversion therapy), introduced on March 9, 2020.
If passed, Bill C-6 would criminalize certain acts related to conversion therapy, a practice intended to change an individual’s sexual orientation, including counselling and behavioural modification. Bill C-6 proposes the following five new criminal offences: (a) causing a person to undergo conversion therapy against their will; (b) causing a minor to undergo conversion therapy; (c) removing a minor from Canada to undergo conversion therapy; (d) advertising an offer to provide conversion therapy; and (e) profiting from the provision of conversion therapy. Bill C-6 would also authorize courts to order the seizure of conversion therapy advertisements or their removal from computer systems or the Internet.
Read the October 2020 Charity & NFP Law Update
by Dev User | Oct 30, 2020 | Uncategorized
October 2020 Charity & NFP Law Update
In a new release dated September 30, 2020, the Canada Radio-television and Telecommunications Commission (“CRTC”) announced that it had reached an agreement with Notesolution Inc. (doing business as OneClass) (“OneClass”) to resolve alleged violations of Canada’s Anti-spam Legislation (“CASL”), including a voluntary undertaking from OneClass to make a payment of $100,000.
OneClass provides an electronic platform for post-secondary students to access exam study guides, lecture notes and video tutorials. The CRTC alleged that OneClass did not comply with CASL by sending commercial electronic messages (“CEMs”) promoting its platform without obtaining consent from the recipients between October 31, 2016 and March 25, 2020, and installed a computer program on post-secondary students’ computers between October and November 2016 that collected their personal information, including usernames and passwords, in the course of its commercial activities without obtaining their express consent.
In addition to making the $100,000 monetary payment pursuant to s 21 of CASL, OneClass also agreed to develop and implement a compliance program addressing the sending of CEMs; to monitor and review its internal policies and procedures to eliminate incentives for its employees to violate CASL; and to register and track CEM complaints and resolutions.
Although OneClass is not a charity, this decision is a helpful reminder to charities and not-for-profits of the importance of CASL compliance, and the high monetary cost that can be associated with violations. Although there are certain exemptions for registered charities that permit them to send CEMs for the primary purpose of fundraising, charities and not-for-profits are generally subject to CASL’s CEM requirements, and as such should obtain express consent from each recipient before sending CEMs.
Read the October 2020 Charity & NFP Law Update
by Dev User | Oct 30, 2020 | Uncategorized
October 2020 Charity & NFP Law Update
Employers will have to write strictly worded and legally precise termination clauses if they aim to exclude entitlements to financial incentive bonuses for executive employees who have recently left their company. In Matthews v Ocean Nutrition Canada Ltd., a judgment rendered on October 9, 2020, the Supreme Court of Canada (“SCC”) restored $1,086,893.36 in damages, for payment in lieu of notice, awarded in a 2017 trial to a former employee as a result of a Long Term Incentive Plan (“LTIP”) agreement with his employer. The SCC overturned the 2018 Nova Scotia Court of Appeal’s holding that excluded the LTIP payment, and the issue pivoted on whether that money would be included in a reasonable notice period at common law, considering the terms of the employment contract. This decision is relevant to charities and not-for-profits that include bonus and incentive programs as part of employee compensation.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 479.
Read the October 2020 Charity & NFP Law Update
by Dev User | Oct 30, 2020 | Uncategorized
October 2020 Charity & NFP Law Update
The Supreme Court of Canada granted leave to appeal on June 18, 2020, from the judgment in Aga v Ethiopian Orthodox Tewahedo Church of Canada, which was released by the Ontario Court of Appeal (“ONCA”) on January 8, 2020. The ONCA’s decision was discussed in further detail in Church Law Bulletin No. 57. However, given the interest generated by this case, a brief summary of the main points from the ONCA decision is provided below in order to help explain some of the key issues that the Supreme Court of Canada will be considering.
This case involves three separate legal entities: the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, which was incorporated under the Ontario Corporations Act (“Church Corporation”); the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral, which the ONCA described as a “voluntary association” (“Congregation”); and the Ethiopian Tewahedo Orthodox Church, which has parishes around the world (“International Church”), and of which the Congregation was a local branch. This case also involves the expulsion of five former individual members from the Congregation (“Appellants”)
While both the Church Corporation and the Appellants were members of the Congregation, the Appellants were not members of the Church Corporation. In bringing the legal action against the Church Corporation, the Appellants alleged that “‘The Church failed to follow their own internal procedures’ in deciding to expel them from the Congregation and their right to natural justice and freedom to practice their religion as set out in s. 2(a) of the Charter was violated in expelling them from the Congregation.”
The motions judge dismissed the case on the basis that there was no contract between the Appellants and the Church Corporation, and therefore alleged breaches of procedural fairness could not be remediated, as she found there was no underlying contract between the parties (although they were both members of the Congregation). The motions judge relied upon the Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, discussed in Church Law Bulletin, No. 54, where the Court held that, as a general principle, judicial review is not available for the decisions of voluntary religious organizations absent the existence of an underlying legal right.
On appeal, the ONCA found that the Congregation’s constitution and by-laws, which contained rules concerning member discipline, together with consideration in the form of monthly tithes made by the Appellants to the Congregation, constituted a contract between the Congregation and the Appellants. The ONCA did not, however, decide whether or not the contract was breached, on the basis that there was insufficient evidence to make that determination.
Although a date has not yet been set for the Supreme Court hearing, charities and not-for-profits will want to read the decision when it is released to see if it will impact the nature of their governing documents and their relationships with members.
Read the October 2020 Charity & NFP Law Update
