Ontario Amends Stage 3 Regulations, Including Mandated Use of Masks in Public Indoor Settings
Provided by the Office of the Premier for Ontario, current as of October 2, 2020
Federal and Ontario COVID-19 Relief Update
September 2020 Charity & NFP Law Update
Federal Government Announces Further COVID-19 Support in Speech from the Throne
A new session of Parliament opened on September 23, 2020, with the Speech from the Throne delivered by Governor General Julie Payette. In the Speech from the Throne, the government outlined its plan to support Canadians through the COVID-19 pandemic. Among the relief measures referenced the government committed to extending the Canada Emergency Wage Subsidy (“CEWS”, discussed most recently in Charity & NFP Law Bulletin No. 477), to the summer of 2021; expanding the Canada Emergency Business Account (“CEBA”), discussed in Charity & NFP Law Bulletin No. 471 and the May 2020 Charity & NFP Law Update, and immediately below, to help businesses with fixed costs; as well as “introducing further support for industries that have been the hardest hit, including […] cultural industries like the performing arts”. The government also indicated that it would invest in housing, including partnering with not-for-profits and housing co-operatives in the mid- to long-term.
Federal Government Extends CEBA Applications for Small Business Loans
In an announcement on August 31, 2020, the Department of Finance Canada announced that the application deadline for CEBA was extended from August 31, 2020 to October 31, 2020. CEBA was introduced on April 9, 2020 to provide interest-free, partially forgivable loans of up to $40,000 to help cover the operating costs of small businesses and certain charities and not-for-profits whose revenues have been impacted by the COVID-19 pandemic.
In addition to extending the deadline for CEBA applications, the government indicated that it was increasing flexibility to allow more organizations to access CEBA. In this regard, the government stated that it was working with financial institutions to make CEBA available to applicants with qualifying payroll or non-deferrable expenses that have, to date, been unable to apply for CEBA because they do not operate from a business banking account.
Federal Government Extends CECRA Rent Relief
The Department of Finance Canada announced on September 8, 2020, that the Canada Emergency Commercial Rent Assistance (“CECRA”) for small businesses would be extended by one month through to the end of September, 2020 to provide commercial rent relief for eligible small businesses, including charities and not-for-profits. As discussed in Charity & NFP Law Bulletin No. 475, the CECRA program lowers commercial rent payments for small businesses that rent property from qualifying commercial landlords by 75%. Landlords and tenants must agree that tenants will pay 25% of their monthly rent, with landlords covering another 25%, and with the federal and provincial government covering the remaining 50% through forgivable loans. With this extension, CECRA relief will now be available for the months of April to September, 2020, with the opt-in deadline extended to October 30, 2020. The government has indicated that this is the final extension of CECRA.
Ontario Amends Stage 3 Order and Extends Current Orders to October 22, 2020
As announced on September 19, 2020, the Ontario government has amended O. Reg 364/20, Rules for Areas in Stage 3, under the Reopening Ontario (A Flexible Response to COVID-19) Act. As a result, the limits on “unmonitored and private social gatherings”, as well as organized public events, have been lowered across the province to 10 people for indoor gatherings and 25 for outdoor gatherings. It is not entirely clear whether the limits for weddings, funerals and religious services, rites and ceremonies remain unchanged from those discussed in COVID-19 Resource for Charities & NFPs: Ontario Moving to Stage 3 of COVID-19 Reopening Framework. The regulation provides that social gatherings associated with a wedding, a funeral or a religious service, rite or ceremony, such as a wedding reception are subject to the lower limits of 10 people for indoor gatherings and 25 for outdoor gatherings, while the limits that apply to the wedding, funeral or religious service, rite or ceremony itself remain unchanged from the limits of 50 for indoor gatherings and 100 for outdoor gatherings.
The government also extended all orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, in force on September 17, 2020 until October 22, 2020. Those orders, including O. Reg 364/20, Rules for Areas in Stage 3, discussed above, had been set to expire on September 22, 2020. Orders that have been extended are listed in O. Reg 458/20, Extension of Orders, under the Reopening Ontario (A Flexible Response to COVID-19) Act.
Global NPO Coalition on FATF Provides Input on Recommendation 8
September 2020 Charity & NFP Law Update
The Global NPO Coalition on FATF, a network of diverse not-for-profits, has released its submission to the Financial Action Task Force (FATF) Secretariat’s Strategic Review process, seeking to “initiate a discussion on whether the existing country evaluation/assessment framework for the not-for-profit sector and for Recommendation 8 […] is fully appropriate, feasible or effective for the purposes of achieving the goals of the FATF.” The FATF’s Recommendation 8 deals with combating the abuse of non-profit organizations particularly with regard to money laundering and terrorist financing, as discussed in Anti-Terrorism and Charity Law Alert No. 46.
The submission states that, unlike other sectors subject to FATF Recommendations, the not-for-profit sector plays a special role in society and is protected by international humanitarian and human rights law. Therefore, the submission states that the current one-size-fits-all methodology of the FATF Recommendations cannot easily or effectively fit all sectors, as it does not allow for the specific nuances of the not-for-profit sector and its internationally-protected role. Instead, the FATF could adopt a risk assessment methodology that is uniquely effective for the not-for-profit sector for the Mutual Evaluation process of Recommendation 8.
The submission argues that many countries are struggling significantly to achieve effective implementation of Recommendation 8 under the current system, and further cites the latest report of the United Nations Security Council’s Counter-Terrorism Committee Executive Directorate, which stated “fewer than 50 per cent of reporting States indicated that their approach to non-profit organizations was risk-based and in accordance with international human rights obligations” and that “54 per cent of responding States indicated that they had never identified cases of terrorism financing through the non-profit sector.”
The submission reiterates that the risk in the not-for-profit sector lies in only a very small subset of organisations; and that any measures, which must be proportionate and targeted, must be compatible with international humanitarian, human rights and refugee law. As such, the submission includes a set of suggestions to improve the country evaluation methodology for the implementation of Recommendation 8.
New Zealand Court Finds Public Environmental Advocacy is Charitable
September 2020 Charity & NFP Law Update
The High Court of New Zealand released its decision in Greenpeace of New Zealand Inc v Charities Registration Board on August 10, 2020. The decision considers questions of charitable purposes related to advocacy and education, as well as whether an organization that carries out illicit activities may be precluded from obtaining charitable status.
As early as 2008, Greenpeace of New Zealand Inc (“Greenpeace”) had begun to seek charitable status in New Zealand, generally speaking, on the basis of protecting the environment, educating the public about environmental protection, and promoting peace, nuclear disarmament and the elimination of weapons of mass-destruction. The Charities Registration Board (the “Board”) had rejected Greenpeace’s applications for charitable status on the basis that: (i) its advocacy for environmental protection was not charitable, but instead involved promoting its views that were not of public benefit in a way the law recognizes as charitable; (ii) with regard to education, it promoted its own views and did not advance a genuine, objective education; (iii) its purpose of promoting peace, nuclear disarmament and the elimination of weapons of mass-destruction was non-ancillary and were not a benefit in the way the law recognizes as charitable; and (iv) Greenpeace and its members are involved in illegal activities from which an illegal purpose could be inferred.
Regarding environmental advocacy, the court found that environmental advocacy could be charitable in itself, as protecting the environment often requires broad-based support and effort. It further held that advocating for environmental protection by promoting its views in opposition to competing interests and views was no less in the public interest despite those competing interests. It therefore found that Greenpeace was not ineligible for charitable status on the ground of environmental advocacy.
In considering Greenpeace’s “advancement of education”, the court found that its advocacy was “aimed at persuading the public to adopt a particular attitude on some broad social question,” which was different from the “advancing education” head of charity under New Zealand’s Charities Act. The court instead found that Greenpeace’s educational activities fell under the “any other matter beneficial to the community” head of charity, insofar as Greenpeace educates the public in support of its environmental advocacy activities, which the court found constituted a charitable purpose of public benefit.
Based on the evidence, the court also found that the purpose of promoting peace, nuclear disarmament and the elimination of weapons of mass-destruction was a “historic” purpose, and that Greenpeace had not pursued any activities in furtherance of this purpose since 2004. The court therefore found this purpose to be ancillary and subsidiary to its “overall aspirational object […] to protect the planet of which humanity is part.” The court therefore found Greenpeace was not disentitled to charitable status because it retained this historic, and now subsidiary, purpose.
Finally, with regard to illicit activities, the court found that these activities have historically involved “trespass, unlawfully being on property, resisting police, obstructing a public way, bill sticking, and disturbing meetings.” However, in examining the evidence, the court held that the examples of illicit activities that the Board has raised as issues were isolated incidents, and that the Board had not established that Greenpeace promoted illegal activity. Further, it held that all the activities were a form of non-violent protest “intended to draw attention to activities that are harmful to the environment,” and further that “[s]ometimes breaches of the law of the land ultimately advance a public benefit.” In any event, as these activities formed a small part of Greenpeace’s activities, the court held that it could not be inferred that Greenpeace has an illegal purpose based on those illicit activities. Given the court’s findings, it held that there was a charitable public benefit in Greenpeace’s advocacy work, and that it was entitled to charitable registration.
Although this decision is from New Zealand and therefore not binding in Canada, the court’s findings will be of interest to the charitable sector in Canada. In Canada, an expansion concerning what is permitted as advocacy is no longer necessary given recent amendments to the Income Tax Act (Canada) permitting public policy dialogue and development activities discussed in Charity & NFP Law Bulletin No. 434 and No. 438. As such, a broad range of advocacy related activities such as those carried on by Greenpeace are permitted so long as they advance a stated charitable purpose. Other aspects of the decision may also be of interest in Canada and other common law jurisdictions, including the court’s analysis of “illegal” activities and whether a charity operates for an illegal purpose.