Ontario Court of Appeal Overturns Finding of Charitable Purpose Trust

by | May 28, 2020 | Uncategorized

Charity & NFP Law Bulletin No. 473

On May 5, 2020, the Court of Appeal for Ontario (the “Court”) released its decision in Friends of Toronto Public Cemeteries Inc v Public Guardian and Trustee. The Court allowed the appeal of Mount Pleasant Group of Cemeteries (“MPGC”), a special act corporation, and held that the application judge had erroneously interpreted a statute from 1871 that amended the trust and governance models of MPGC, making the appointment of its current trustees invalid. In addition, the Court overturned the application judge’s findings that (i) MPGC’s visitation centre and funeral home businesses exceeded its objects, and (ii) MPGC was a charitable purpose trust subject to the provisions of the Charities Accounting Act. In doing so, the Court denied the cross-appeal made by the applicants, Friends of Toronto Public Cemeteries Inc. and Kristyn Wong-Tam, affirming that an investigation by the Public Guardian and Trustee (“PGT”) into MPGC, which the PGT was never willing to partake in, was not required because the matter had become moot due to the Court’s findings, and also because it would not benefit the public. This Bulletin provides an overview of the Court’s decision, which is relevant to charities and not-for-profits (“NFPs”), as it clarifies the distinction between statutory trusts and charitable purpose trusts, in addition to reviewing the concepts of statutory interpretation, especially as they apply to archaic statutes dating back to the 1800s.

For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 473.

Read the May 2020 Charity & NFP Law Update

 

New Details on COVID-19 Federal Response Programs

by | May 28, 2020 | Expertise, Real Estate Law

May 2020 Charity & NFP Law Update

New Details on the Canada Emergency Commercial Rent Assistance Program (“CECRA”)
On May 20, 2020, Prime Minister Justin Trudeau announced that application documents and updated criteria for the Canada Emergency Commercial Rent Assistance (“CECRA”) for small businesses and charities and not-for-profits are now available. Further to the preliminary details provided on April 24, 2020, as discussed in Charity & NFP Law Bulletin No. 471, new details have been made available on the Canada Mortgage and Housing Corporation (“CMHC”) website.
Of particular note, although it was previously unclear whether property owners would be eligible where their leased property was not subject to a mortgage, the CMHC has now clarified that CECRA is available to property owners regardless of whether their property is subject to a mortgage. Further, the CMHC has also indicated that although CECRA will not apply to any federal-, provincial-, or municipal-owned properties, or where the government is the landlord, relief under CECRA will be available where the property owner is a post-secondary institution, hospital, or pension funds.
Similarly, while the Government of Ontario’s Backgrounder, dated April 24, 2020, had previously indicated that property owners applying to OCECRA must agree to “forego profit for a three-month period”, this requirement was removed from the Backgrounder when it was updated on May 8, 2020 to be more clearly aligned with the requirements outlined by CMHC. 
Property owners may apply for the program from May 25, 2020 until August 31, 2020 if they can prove eligibility during the three-month period of April, May and June 2020. The CMHC website also includes answers to frequently asked questions, such as how to calculate the 70% reduction in revenue requirement, which in the case of registered charities and non-profit organizations the calculation would include most forms of revenue, including revenue from government sources, but excluding revenue from non-arm’s length persons.

New Details on the Canada Emergency Business Account (“CEBA”)
On May 19, 2020, Prime Minister Justin Trudeau announced an expansion to the eligibility criteria for the Canada Emergency Business Account (“CEBA”), which provides interest-free loans to help small businesses and certain charities and not-for-profits whose revenues have been impacted by the COVID-19 pandemic to cover their operating costs. CEBA will now be available to applicants with payrolls lower than $20,000 who have an operating account at a participating financial institution, have a CRA business number and have filed a 2018 or 2019 tax return, and have eligible non-deferrable expenses, such as rent, property tax, utilities and insurance, between $40,000 and $1.5 million. As well, CEBA will be available to sole proprietors receiving income directly from their businesses, businesses that rely on contractors, and family-owned corporations that pay employees through dividends rather than payroll. 
CEBA was previously discussed in Charity & NFP Law Bulletin No. 471.

New Details on the Emergency Community Support Fund
Employment and Social Development Canada has released additional details on the $350 million Emergency Community Support Fund, previously discussed in Charity & NFP Law Bulletin No. 471.
The application process was opened on May 19, 2020 for community organizations, including qualified donees and non-profit organizations, serving vulnerable populations affected by the COVID-19 pandemic. The applications can be submitted through the Canadian Red Cross, Community Foundation Canada or United Way Centraide Canada, subject to specific selection criteria as follows: i) the project addresses a pressing social inclusion or well-being need caused by COVID-19 by supplying the necessaries of life and supporting activities of daily living; ii) the project serves one or more vulnerable populations during the COVID-19 crisis; iii) the project can be carried out in a short timeframe with a reasonable budget; and iv) the applicant community organization must attest to not having secured funds to cover the costs of the activities for which they have applied from another intermediary, another federal COVID-19 response program or a different source.

New Details on Emergency Support Fund for Cultural, Heritage and Sport Organizations
On May 8, 2020, the federal Minister of Canadian Heritage announced additional details regarding the COVID-19 Emergency Support Fund for Cultural, Heritage and Sport Organizations, previously discussed in Charity & NFP Law Bulletin No. 471. As such, Canadian Heritage has made funds available to partner organizations, including the Canada Council for the Arts, the Canada Media Fund, FACTOR, Musicaction, and Telefim Canada, to start distributing funds to organizations affected by the COVID-19 pandemic in the cultural, heritage and sport sectors.

Read the May 2020 Charity & NFP Law Update

May 2020 Charity & NFP Law Update

by | May 28, 2020 | Charity & Not-for-Profit Law, Faith-Based Organizations

Ontario Court of Appeal Overturns Finding of Charitable Purpose Trust

COVID-19 UPDATE
–   New Details on COVID-19 Federal Response Programs
–   CRA Statement Regarding Charity Registration Applications
–   COVID-19 Corporate Update
–   Ontario Allows Gatherings for Religious Services as “Drive-ins”
–   OPC Provides Privacy Tips for Using Videoconferencing Services
–   New Changes to the Canada Emergency Wage Subsidy (“CEWS”)

OTHER CHARITY AND NFP MATTERS
–   BCFSA Clarifies Position on Gifts of Life Insurance
–   BC Court of Appeal Reverses Decision Ordering Return of Charitable Gift
–   Lexpert Ranking

May 2020 Charity & NFP Law Update

OPC Provides Privacy Tips for Using Videoconferencing Services

by | May 28, 2020 | Expertise, Real Estate Law

May 2020 Charity & NFP Law Update

In light of the surge of Canadians using videoconferencing services to maintain social distancing during the COVID-19 pandemic, the Office of the Privacy Commissioner of Canada (“OPC”) published a blog post on May 1, 2020 providing privacy tips to consider while using videoconferencing services. The OPC warns that videoconferencing services “present personal and collective challenges for protecting privacy online,” particularly as one person’s choices may affect the privacy of everyone on the video call.
To safeguard all participants’ privacy, the OPC suggests that anybody using videoconferencing services should:
  1. Follow the news about videoconferencing to be aware of the various privacy and security vulnerabilities that certain videoconferencing services face;
  2. Review the privacy policies and terms of use of the videoconferencing service;
  3. Use a unique password for videoconferencing service accounts, and avoid using an existing social media account to sign in to a new service;
  4. Ensure that meetings are private or accessed only by invited participants where possible, including not posting video conference details publicly, and disabling features such as “join before host”, screen sharing, or file transfers where the meeting is public in order to prevent unwanted activities, such as “Zoombombing” and gate crashing;
  5. Protect video conferencing calls with a password, if possible, especially if anybody intends to discuss sensitive personal information such as health information. Each call should have its own password to prevent an unwanted participant from joining;
  6. Refrain from disclosing personal information where unnecessary, or disable call and video-recording features if personal or private information is to be discussed;
  7. Be conscious of where participants sit during the call, as items in the background can reveal personal information and reflective objects may reveal people who do not want to be in the video;
  8. Be aware of others in the vicinity who may be able to overhear the call, and wear headphones or find an isolated spot if necessary;
  9. Review the permissions and maintain an up-to-date version of any videoconferencing apps installed on phones, tablets, and computers;
  10. Open a new window with no other browser tabs if a web browser is used for call, and close other applications to prevent notification pop-ups, such as new email alerts, from being inadvertently shown to other participants; and
  11. Turn off smart speakers and personal home assistants to prevent the call from accidentally being recorded by the assistant.
With the current widespread use of videoconferencing services, charities and not-for-profits should be aware of the potential privacy risks involved with using these services, particularly where private information is discussed. Precautions, such as those outlined by the OPC, can and should be taken to best protect private information held by a charity or not-for-profit, as well as the privacy of its employees who participate in videoconferencing calls.

Read the May 2020 Charity & NFP Law Update