by Dev User | Feb 28, 2019 | Uncategorized
Feb 2019 Charity & NFP Law Update
On December 14, 2018, the Ontario Superior Court of Justice published the transcribed written endorsement in Hemming v JAZZ.FM 91 Inc., involving a dispute between an incorporated registered charity (“JazzFM91”) and a group of dissident members who requested that JazzFM91 provide them with a membership list in accordance with the statutory provisions of the Corporations Act (Ontario), including email addresses. At the time of writing, the dissident member group was successful in replacing the previous board of JazzFM91 with their own slate at a special meeting earlier in February 2019.
Although most of JazzFM91’s over 2,000 members are primarily contacted and sent meeting notices by JazzFM91 via email, JazzFM91 refused to release the email addresses of its members, adopting a narrow reading of the Corporations Act (Ontario) and arguing that it had an obligation to protect its members’ privacy. However, the court disagreed with JazzFM91 and stated that:
Among the purposes advanced by allowing members/shareholders to access the list of members is to allow shareholders/members the means to requisition a shareholder meeting. The Respondent [JazzFM91] has decided to withhold electronic address information. That narrow view of its obligations to provide addresses was clearly adopted to frustrate the applicants and not – as suggested – out of concern to maintain privacy.
As such, the court ordered JazzFM91 to provide the “postal and electronic addresses (email) as it possesses when responding to the applicant or any other member’s request.”
The court was also concerned with the message that an order on costs in this application would send to other not-for-profits. In this regard, the court ordered JazzFM91 to pay $20,000.00 in costs, stating that the best way to deal with a dissident group is at members’ meetings and not misusing the corporation’s money by “tossing roadblocks in the way of democracy.”
A week later, officers of JazzFM91 appeared before the Divisional Court requesting a stay of the order of December 14, 2018. Even though JazzFM91 did not bring a proper motion on notice, the Divisional Court found that there was no risk of serious harm to JazzFM91 and no risk of irreparable harm to members’ privacy resulting from the order to provide the email addresses. In this regard, the Divisional Court held that: “[m]embers of a not-for-profit corporation allow the corporation and dissidents to contact them as an incident of membership. The corporation already uses email to do so. Levelling the playing field for dissidents enhances member democracy. It is not harm.”
While the obligation to disclose email addresses or other personal information of members may depend on the statute applicable to the not-for-profit corporation or information collected, these decisions are a reminder of the statutory obligation to provide membership lists, and the willingness of the court to read the statute in favor of the members’ rights in a dispute. The tension between corporate disclosures obligations and privacy obligations was earlier reviewed in the decision of Rodgers v Calvert, discussed in Charity Law Bulletin No. 70. However, increasingly, it is apparent that information collected from members during the membership process will need to be weighed carefully given the disclosure obligations of the not-for-profit corporation under corporate statutes.
Read the February 2019 Charity & NFP Law Update
by Dev User | Feb 28, 2019 | Uncategorized
Feb 2019 Charity & NFP Law Update
On February 14, 2019, the Supreme Court of Canada (“SCC”), in a case that will be of interest to charities and not-for-profits, released its decision in R v Jarvis, overturning two lower court decisions in which a high school teacher, Mr. Jarvis, was twice acquitted of charges of voyeurism under paragraph 162(1)(c) of the Criminal Code. The SCC convicted the teacher, who had been secretly recording videos of female students’ breasts and cleavage using a camera that was hidden within a pen. Mr. Jarvis was charged under paragraph 162(1)(c), which states:
Voyeurism
162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if […]
(c) the observation or recording is done for a sexual purpose.
The key elements of an offence under paragraph 162(1)(c) are: (1) whether the circumstances gave rise to a reasonable expectation of privacy; and (2) whether the observation or recording was done for a sexual purpose. The Ontario Court of Appeal had already determined that Mr. Jarvis had made the videos for a sexual purpose. Therefore, the only issue before the SCC was whether the students recorded by Mr. Jarvis were in circumstances that gave rise to a reasonable expectation of privacy. The students, who ranged in age from 14 to 18 years old, had all been recorded without their knowledge or consent in common areas of the schools such as hallways, classrooms and computer labs.
In holding that the circumstances did give rise to a reasonable expectation of privacy and convicting Mr. Jarvis of voyeurism, the SCC majority (the “Majority”) rejected a narrow, “all or nothing”, location-based interpretation of “reasonable expectation of privacy” in which a person only has a reasonable expectation of privacy in a place where she does not expect to be observed by others (such as her own home) and loses all expectations of privacy if she is in a place where she knows she can be observed by others or from which she cannot exclude others. Instead, the Majority adopted a broad interpretation in which a person retains some expectation of privacy even while knowing that she could be viewed or even recorded by others in a public place. The Majority stated that a typical or ordinary understanding of “privacy” recognizes that a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not others.
Stating that the determination of whether there is a reasonable expectation of privacy is a contextual one that must be made in the totality of the circumstances, the Majority provided a non-exhaustive list of nine factors to consider in determining whether circumstances give rise to a reasonable expectation of privacy. The location the person was in when the impugned conduct took place is only one of the factors to be considered. Other factors include whether the person was observed or recorded; whether there was consent; any applicable rules, regulations or policies in place; the nature of the relationship between the parties; the purpose for which the recording or observation was made; and the attributes of the person who was recorded or observed.
In this case, the Majority found, among other factors, that Mr. Jarvis had not only “observed” but had made recordings, which could be manipulated, shared and viewed at length in a manner that would be unimaginable if he had been standing next to a student staring at her breasts; that the recordings were of identifiable individuals, who were also vulnerable minors and young persons; that Mr. Jarvis had targeted certain students; that the recordings focused on intimate parts of the students’ bodies; that he had used hidden technology that allowed for recording at close range without the students being aware of it; that there was a trust relationship between Mr. Jarvis and the students that he had abused; that there was a school board policy in place that prohibited such recordings; and that Mr. Jarvis had a sexual purpose for making these videos. Accordingly, the Majority held that the Crown had established beyond a reasonable doubt that Mr. Jarvis recorded persons who were in circumstances that gave rise to a reasonable expectation of privacy within the meaning of subsection 162(1) of the Criminal Code.
The fact that some of the students were minors and all of them were young persons also supported the finding of reasonable expectation of privacy and strengthened the argument that they could reasonably expect not to be recorded in the manner they were, primarily due to children’s inherent vulnerability and inability to protect their own privacy interests.
Additionally, in its analysis, the Majority recognized the threat to privacy caused by new and evolving technologies, noting that even where a recording is not made, technology may allow a person to see or hear more acutely. Importantly, the Majority stated that evolving technologies do not necessarily mean that our expectations of privacy will shrink correspondingly.
This decision will expand the range of settings and contexts in which individuals will arguably have a reasonable expectation of privacy. Charities and not-for-profits must be vigilant about protecting the privacy of their clients and other stakeholders, especially minors and young persons. Charities and not-for-profits must also be aware of the implications of and risks posed by evolving, developing and increasingly ubiquitous technology. For these reasons, charities and not-for-profits should carefully screen and supervise their employees and volunteers, and ensure that their privacy policies and protocols are regularly updated and reviewed.
Read the February 2019 Charity & NFP Law Update
by Dev User | Feb 28, 2019 | Uncategorized
Feb 2019 Charity & NFP Law Update
Yukon Territory Introduces New Societies Act
As a result of the efforts of the Government of Yukon in 2017 and 2018 to modernize legislation in order to better serve the needs of societies and the public, a new Societies Act (“New Act”) received Royal Assent on November 22, 2018 (Bill 20, Societies Act).
The New Act is not currently in force and will come into force on a day or days to be fixed by the Commissioner in Executive Council. Regulations for the New Act have not yet been drafted. However, the Government of Yukon anticipates that the New Act and regulations will be approved and proclaimed in force approximately one year after Royal Assent, i.e. late 2019. When the New Act comes into force, it will repeal and replace the Yukon’s current Societies Act (RSY 2002, c 206).
Following input from a number of stakeholders from September 25 to 29, 2017, concerning their experiences with the Societies Act and its Regulations, the Department of Community Services invited the public for input on potential improvements to the Societies Act from October 14 to December 14, 2017. The Department then invited the public to provide feedback from May 1 to June 30, 2018 on proposed changes set out in Policy Elements for New Societies Legislation, which includes 40 proposed key policy elements. The Policy Elements for New Societies Legislation reviews changes in the following areas: the creation and liquidation of societies; directors’ matters; the role of the registrar; operational matters; privacy; liability; finance and employment; and other structures (being social enterprises and non-profit cooperatives).
The New Act is written in plain language and aims to clarify the framework for societies and the processes regarding their creation, governance and operation. An overview of key changes in the New Act are summarized in Bill #20 Societies Act: Highlights of Proposed New Societies Act.
Amendments to Recordkeeping Requirements under Alberta Societies Act
On December 11, 2018, sections 26 and 36 of Alberta’s Societies Act were amended by Bill 31, Miscellaneous Statutes Amendment Act, 2018. As a result of these changes, Alberta societies no longer need to state the occupation of each of their directors and officers in their annual returns, and thereby no longer need to provide the Registrar with notice when a director or officer changes occupations. Accordingly, Alberta’s REG3185 Society Annual Return has also been updated to reflect this change. As well, Alberta societies will have the flexibility of recording the “street address or postal address” of the members in the members’ registers instead of their “residential address.”
Read the February 2019 Charity & NFP Law Update
by Dev User | Feb 28, 2019 | Uncategorized
Feb 2019 Charity & NFP Law Update
CRA is Revising Form T3010 and Form T2050
The Canada Revenue Agency (“CRA”) has recently announced that it will revise Form T3010 Registered Charity Information Return and Form T2050 Application to Register a Charity Under the Income Tax Act, with additional instructions to be made available online soon, due to the new public policy dialogue and development activities (“PPDDA”) rules introduced in the Income Tax Act (Canada) (“ITA”) in December 2018 that make the reporting of spending on political activities “no longer relevant”.
Update to Info Sheet for Charities Completing their GST/HST Return
On February 12, 2019, the CRA updated its GST/HST Info Sheet GI-066 How a Charity Completes Its GST/HST Return (the “Info Sheet”). The Info Sheet includes a number of updates, including changes to reflect the repeal of section 252.1 of the Excise Tax Act, which provided a GST/HST rebate for the accommodation portion of eligible tour packages and the net tax calculation. For additional information, see GST/HST rebate for tour packages as well as Guide RC4082, GST/HST Information for Charities, discussed in the April 2018 Charity & NFP Law Update.
P113 – Gifts and Income Tax 2018
On February 19, 2019, the CRA updated its P113 Gifts and Income Tax 2018 (the “Pamphlet”) to reflect changes to the ITA with regard to universities outside Canada no longer being required to be prescribed in Schedule VIII of the Income Tax Regulations, as per the 2018 Federal Budget. The Pamphlet assists individuals who donate money or property to registered charities or other qualified donees, such as universities outside Canada, and is updated every year. The changes affecting universities outside Canada were discussed in greater detail in the March 2018 Charity & NFP Law Update.
Read the February 2019 Charity & NFP Law Update
