by Dev User | Mar 28, 2019 | Uncategorized
Mar 2019 Charity & NFP Law Update
On February 20, 2019, the Information and Privacy Commissioner of Ontario (“IPC”) released PHIPA Decision 89 (the “Decision”) in response to a complaint under Ontario’s Personal Health Information Protection Act, 2004 (“PHIPA”). In this case, an individual had sought access to his late wife’s personal health records in his capacity as her estate trustee from the Mississauga Halton Local Health Integration Network (the “LHIN”). In response, the LHIN issued a decision granting him access to the personal health information, but stated that all non-health related information would be severed from the records in accordance with subsection 52(3) of PHIPA.
Following a complaint with the Office of the IPC, the LHIN agreed to conduct further searches for additional records and issued a revised decision to provide the individual with health care records in the possession of the wife’s care service providers. However, the individual complained further that additional records existed, namely a copy of his late wife’s last will that was allegedly provided to a person/nurse, and moved the complaint to the adjudication stage before the IPC.
In the Decision, the IPC considered whether the LHIN had conducted a reasonable search for the records. In doing so, the adjudicator applied the principles established in previous IPC decisions that had canvassed reasonable search orders issued under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act and found them to be relevant to PHIPA. Having considered the LHIN’s evidence, the adjudicator stated that health information custodians are not required by PHIPA to “prove with absolute certainty that further records do not exist”, but rather only to provide “sufficient evidence to demonstrate that they have made a reasonable effort to identify and locate responsive records.” It further stated that “a reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request expends a reasonable effort to locate records that are reasonably related to the request.”
In this case, the adjudicator found that the individual’s request was for “the complete health record” of his wife, which was different from a request for “any records of his and his wife’s communications with the LHIN and its predecessor organization.” In this regard, the adjudicator found that the wife’s will was a peripheral record and was not directly related to health care provision, and that it therefore fell outside the scope of the request. The adjudicator also stated that the requester must provide a reasonable basis for concluding that additional records exist. The adjudicator considered the scope of the search conducted by the LHIN, as well as the nature of the employees who had carried it out, all of whom were experienced employees knowledgeable in the subject matter of the request. Based on the evidence given, the adjudicator held that the LHIN had made a reasonable effort to locate the records reasonably requested, and dismissed the complaint.
Section 52 of PHIPA provides individuals with a right of access over their own personal health information, and the Decision is a useful reminder to “health information custodians”, including certain charities and not-for-profits, such as hospitals, long-term care homes, home care providers and community care access centres, of the scope of their legal duty to provide access to such information in accordance with section 54. Such organizations need only provide sufficient evidence to show that they have made a reasonable effort to identify and locate responsive records in accordance with the factors laid out in the Decision. Further, in cases where requesters insist that they have not received a complete record, the onus is not on the health information custodian to prove that the records do not exist. Rather, the requester must provide a reasonable basis for concluding that additional records exist.
Read the March 2019 Charity & NFP Law Update
by Dev User | Mar 28, 2019 | Uncategorized
Mar 2019 Charity & NFP Law Update
As previously reported in the November 2018 Charity & NFP Law Update, significant changes to Canada’s trademark law will take effect on June 17, 2019. As this date is fast approaching, charities and not-for-profits are reminded of the need to consider some of the key changes that will impact the way they approach protection of their intellectual property, both now and in the future.
In this regard, charities and not-for-profits should carefully review their trademark portfolios prior to June 17, 2019 and begin filing any outstanding trademark applications while the filing fees remain modest. After June 17, 2019, the filing fees will be increasing significantly, as trademarks will be registered on a fee per class basis. The current government flat filing fee of $250 CAD, regardless of the number of classes, will soon be replaced by a $330 CAD filing fee per class, plus $100 CAD for each additional class of goods and services.
The most significant change to Canada’s trademark regime is the simplification of the application process by removing the current “use” requirements. Trademark applicants will no longer be required to have first used the trademark, whether in Canada or abroad, prior to registration. This will open the door to trademark squatters and trolls to register marks that are currently unregistered. As has been stressed in the past, charities and not-for-profits with unregistered marks should be monitoring their marks and should act quickly to register their marks, or risk squatters and trolls registering their marks and requesting large sums of money in exchange for the registration certificate.
Currently, registered trademarks must be renewed every 15 years from the date of registration or their last renewal. However, as of June 17, 2019, this renewal period will be shortened from 15 years to 10 years. In addition to the shortened renewal period, the fee for renewals will increase significantly for multi-class registrations, as discussed above. In order to take advantage of the lower renewal fees and maintain all classes of goods and services for one fixed-fee, charities and not-for-profits that own registered trademarks should renew these registrations before June 17, 2019.
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by Dev User | Mar 28, 2019 | Uncategorized
Mar 2019 Charity & NFP Law Update
On March 15, 2019, the Ontario Court of Appeal (the “Court”) released its decision in Merrifield v Canada (Attorney General), overturning a lower court decision (discussed in the Charity & NFP Law Bulletin No. 402) that had established a freestanding tort of harassment. In the lower court decision, Merrifield, a police officer, successfully sued his employer, the Royal Canadian Mounted Police, for harassment as well as intentional infliction of mental suffering (“IMSS”) and was awarded a judgment of $100,000 for general damages as a result of such harassment.
On appeal, the Court found that the trial judge had erred in recognizing a tort of harassment, in the application of the test for IMSS, and that the judge had made palpable and overriding errors in “much of her fact-finding.” Of interest to charities and not-for-profits is the Court’s analysis with respect to its refusal to recognize a separate tort of harassment. The Court noted that “common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically.” As examples, the Court cited Bhasin v Hrynew (in which the Supreme Court of Canada recognized a duty of honest contractual performance) and Jones v Tsige, which was discussed in Charity Law Bulletin No. 277, (in which the Ontario Court of Appeal recognized the tort of intrusion upon seclusion) and emphasized that these cases merely confirmed an existing duty and tort.
While the Court did not “foreclose the development” of the tort of harassment, it stated that there was a lack of compelling evidence in this case to support the existence of the tort. The Court found that the cases relied upon by the trial judge confirmed “neither the existence of the tort nor its elements.” Further, the Court had not been provided with any foreign judicial authority supporting the recognition of the tort, nor any academic authority or policy rationale that would compel the Court to nevertheless recognize a tort of harassment and its requisite elements.
While the Merrifield appeal decision confirms that, for now, an employee cannot sue an employer for the common law tort of harassment, charities and not-for-profits must be mindful that employees still have statutory protections against harassment under any of the enumerated grounds in subsection 5(2) of the Ontario Human Rights Code. As such, charities and not-for-profits still need to implement effective workplace harassment policies to manage the risk with respect to harassment claims.
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by Dev User | Mar 28, 2019 | Uncategorized
Mar 2019 Charity & NFP Law Update
On March 11, 2019, the Ontario Court of Appeal released its decision in Faas v Centre for Addiction and Mental Health Foundation, affirming the lower court’s decision (which was discussed in the June 2018 Charity & NFP Law Update) in rejecting a section 6 application under the Charities Accounting Act. The application, if granted, would have required the Public Guardian and Trustee (“PGT”) to investigate the use of donated funds by a public foundation and registered charity, the Centre for Addiction and Mental Health Foundation (“CAMH”).
By way of context, a donation of $1-million had been made by the Faas Foundation and its principal, Andrew Faas (“Faas”) to CAMH for the development of a workplace mental health program, using a written Donor Investment Agreement (“DIA”) that contained terms requiring CAMH to provide an annual status report to the donor. Subsequently, Mr. Faas became dissatisfied with the progress of the program’s development, its design and implementation by CAMH and the disclosure of information provided by CAMH, including financial accounting. As a result, Mr. Faas brought a section 6 application on the basis that it was in the public interest for the PGT to investigate whether the donation had been used for its designated purpose as agreed to in the DIA.
In dismissing the appeal, the Court of Appeal found that the motion judge did not err in finding that there were no grounds to order an investigation by the PGT and that such investigation would not serve any identifiable public interest, as Mr. Faas’ section 6 application was “based on conjecture” and “[n]o mischief has been identified, and no misuse of funds is apparent from the record.” The Court of Appeal held that the motion judge was “entitled to accept that evidence” that there had been no mismanagement of funds, and that the donation was being properly used for its designated purpose. As such, the Court of Appeal affirmed the lower courts’ finding that Mr. Faas did not have a right to a “detailed accounting of CAMH’s program and its use of funds.”
Section 6 investigations are conducted at the cost of the public and, as demonstrated in this appeal decision, courts do not grant such applications unless there is an identifiable mischief and the application is for the benefit of the public. Nevertheless, charities should be careful when expending any donated funds to ensure that such donations are used to further their charitable purposes and, where specific restricted terms are imposed on a gift by a donor and agreed to by the charity, in accordance with the said restricted terms.
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by Dev User | Mar 28, 2019 | Uncategorized
Mar 2019 Charity & NFP Law Update
On February 19, 2019, the Supreme Court of British Columbia released its decision in Peters v Soares, in which the court refused to enforce two liability waivers with respect to an individual who had been injured in a competition as a jiu-jitsu student of a martial arts academy. In holding both waivers unenforceable, the court affirmed the importance of using language that can demonstrate what each party was contemplating at the time of signing, and the need for organizations to keep proper records of such waiver agreements in order to be able to identify the exact terms to which a participant had agreed. This decision is important for charities and not-for-profits which utilize liability waivers, in that it demonstrates that courts will closely scrutinize the language of liability waivers to determine if they are to be enforced.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 444.
Read the March 2019 Charity & NFP Law Update
