by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update<
On January 18, 2019, the Government of Ontario announced that new changes to the charitable gaming licence regime administered by the Alcohol and Gaming Commission of Ontario (“AGCO”) will now permit charities to hold electronic raffles both in-person and online, including the sale of tickets as well as the ability to pick winners and award prizes.
According to Info Bulletin No. 89: Expanding Raffle and Electronic Raffle Options for Charities in Ontario (the “Bulletin”), as published on November 30, 2018, the changes include an expanded variety of online raffles and raffle types that can now be conducted and managed electronically both in-person and online. The Bulletin also states that the AGCO is working towards an updated framework that would permit municipalities and First Nations licensing authorities to issue not just licences for paper-based raffles, as they are currently permitted, but also licences for charities to conduct and manage electronic raffles, for which the AGCO is currently the only licensing authority.
The new changes are now reflected in AGCO’s Electronic Raffles: Licensing webpage, which provides step-by-step information for charities applying for a gaming licence, including a new video as well as AGCO’s raffle licence terms and conditions. Similarly, AGCO’s Charitable Gaming: Suppliers webpage provides certain minimum technical standards that electronic raffle systems are required to meet. The AGCO has also updated its Notification Matrix for notifications to be submitted to the AGCO prior to an electronic raffle event as well as the reporting of incidents involving electronic raffles.
Ontario charities whose fundraising efforts include electronic raffles, either in-person or online or both, will want to pay attention to these changes as they may apply to their ongoing or planned campaigns.
Read the January 2019 Charity & NFP Law Update
by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update
Ontario Bill 66, Restoring Ontario’s Competitiveness Act, 2018 (“Bill 66”) received first reading on December 6, 2019. Of particular interest to charities and not-for-profits as employers, Bill 66 proposes to amend the Employment Standards Act, 2000 (“ESA”), among other acts. The proposed changes in Bill 66 are intended to reduce the regulatory burden on businesses.
Currently, section 2 of the ESA requires employers to post in the workplace a poster containing information about the ESA (“ESA poster”) prepared by the Minister of Labour (“Minister”). Employers are also required to provide a copy of the most recent ESA poster to all employees. Bill 66 proposes to amend section 2 by removing the requirement for employers to post the ESA poster in the workplace, although they will continue to be required to provide employees with the most recent ESA poster.
Concerning excess hours of work, the ESA restricts the number of hours per work week that an employer may require or permit employees to work, up to a maximum of 48 hours. However, there is an exception carved out to allow for this time to be exceeded where an employer has approval from the Director of Employment Standards (“Director”). Bill 66 proposes to remove this exception, such that employers will no longer require the Director’s approval before entering into such agreements.
With regard to averaging overtime pay, employers are currently required to obtain the Director’s approval to enter into agreements with employees allowing them to average out the employee’s work hours over at least two weeks for the purposes of determining the employee’s entitlement to overtime pay. Bill 66 proposes to remove the requirement for employers to first obtain the Director’s approval before entering into averaging agreements with employees, though the period of averaging in any such agreements could not exceed four weeks.
If passed in its current form, Bill 66 is intended to reduce the administrative burden on employers when entering into work hour agreements and averaging agreements with employees, as well as with regard to ESA posters. However, as Bill 66 has only been carried through first reading, these provisions are subject to change as the Bill is debated. Nonetheless, charities and not-for-profits should monitor the status of Bill 66, as these provisions would come into force upon Royal Assent.
In addition to the Bill 66 changes, amending regulations O Reg 498/18 were filed on December 14, 2018, making changes to existing O Reg 285/01, When Work Deemed to be Performed, Exemptions and Special Rules under the ESA. O Reg 498/18 adds an additional exemption to exclude several kinds of workers from the three hour rule found in the ESA, which rule generally requires employers to pay an employee for a minimum of three hours’ wages in the event that an employee who regularly works more than three hours a day attends work, but works less than three hours despite being able to work for longer. Of the following workers that are now exempt from the three hour rule, several may be of interest to charities and not-for-profits: 1) a person employed as a student in a recreational program operated by a registered charity, whose work or duties are “directly connected” with the recreational program; 2) a person employed as a student whose duties are to instruct or supervise children, and 3) a person employed as a student who works at a camp for children.
Read the January 2019 Charity & NFP Law Update
by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update
In another case concerning special act corporations, the Superior Court of Ontario released its decision in Bogaerts v Attorney General of Ontario on January 2, 2019. In this case, Mr. Bogaerts challenged the constitutionality of certain provisions in the Ontario Society for the Prevention of Cruelty to Animals Act (“OSPCA Act”). Specifically, he alleged that the OSPCA Act violates the section 7 right to life, liberty and security and the section 8 right against unreasonable search and seizure under Canadian Charter of Rights and Freedoms (“Charter”), as well as the division of powers in the Constitution Act, 1867, as it dealt with criminal matters.
The OSPCA Act is special legislation incorporating and governing the registered charity, Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”). It administers and enforces animal welfare and protection throughout Ontario, and is given police powers to do so. While it is neither a Crown agent nor part of the provincial government, it is an independent charitable organization that has been given certain statutory powers relating to animal welfare in Ontario.
The court dismissed two of Mr. Bogaert’s claims. It found that the OSPCA Act does not violate the division of powers in the Constitution Act, 1867 because the pith and substance of the OSPCA Act is animal protection and the prevention of cruelty to animals rather than criminal law. It also found that the OSPCA Act does not violate the section 8 Charter right, holding that there would be no reasonable expectation of privacy because the OSPCA’s search and seizure powers are necessary to meet the objectives of the OSPCA Act.
However, the court held that the delegation in the OSPCA Act of police and other investigative powers to a private organization violates section 7 of the Charter, even though these provisions have been in the OSPCA Act prior to the creation of the Charter. The court recognized a new principle of fundamental justice that “law enforcement bodies must be subject to reasonable standards of transparency, integrity, and accountability.” In this regard, it found that the OSPCA is a private organization and private organizations “by their nature are rarely transparent, and have limited public accountability” and that “[a]lthough charged with law enforcement responsibilities, the OSPCA is opaque, insular, unaccountable and potentially subject to external influence, and, as such, Ontarians cannot be confident that the laws it enforces will be fairly and impartially administered.” The court therefore found the provisions in the OSPCA Act granting warrantless search and/or seizure powers to the OSPCA to be unconstitutional. As it found that the offending provisions could not be modified or read down to comply with the Charter, the court declared those provisions to be of no force and effect. However, this declaration of invalidity has been suspended for one year to allow the legislature sufficient time to consider the range of possibilities or to start from scratch in making policy choices, because immediate implementation of the declaration would deprive animals of their current protections under the OSPCA Act, and could adversely impact staff at the OSPCA and its affiliates.
This case demonstrates the importance of ensuring special act legislation does not conflict with legislation, such as the Charter or other portions of the Constitution of Canada. Where they do, such corporation can become, as stated by Mr. Bogaerts, “a victim of the legislation.” Special act corporations should therefore be aware that where their legislated powers run counter to Charter rights or other Constitutional provisions, those powers may be declared invalid by the courts, even where those provisions had been in place prior to the Charter or Constitution’s creation.
Read the January 2019 Charity & NFP Law Update
