CRTC Releases New Bulletin on CASL Compliance

by | Nov 29, 2018 | Uncategorized

Nov 2018 Charity & NFP Law Update

On November 5, 2018, the Canadian Radio-television and Telecommunications Commission (“CRTC”) released its Compliance and Enforcement Information Bulletin CRTC 2018-415 (the “CRTC Bulletin”). The stated purpose of the CRTC Bulletin is to provide general compliance guidelines as well as best practices with regard to section 9 of Canada’s anti-spam legislation (“CASL”), including examples of what the CRTC considers as non-compliant activities and measures for managing risks. The CRTC Bulletin also refers to the guidelines regarding the development of corporate compliance programs in Compliance and Enforcement Information Bulletin CRTC 2014-326.

While sections 6 to 8 of CASL generally prohibit direct action, section 9 of CASL is meant to extend the prohibitions in sections 6 to 8 to any intermediaries who receive direct or indirect financial benefit from a contravention of CASL by others. As examples of intermediaries to which this section would apply, the CRTC Bulletin lists advertising brokers, electronic marketers, software and application developers, software and application distributors, telecommunications and internet service providers, and payment processing system operators.

The CRTC Bulletin states that it will consider “a variety of factors” on a case-by-case basis to assess the role of individuals, businesses and other entities with regard to a section 9 violation. Examples of such factors are the level of control over the activity that constitutes a contravention of section 9 and what could have been done to prevent or stop that activity, the degree of connection between the actions of the intermediary and the entity contravening section 9, and any evidence of precautions and safeguards to prevent or stop violations from being committed.

However, the CRTC Bulletin states that it is possible for an individual or organization to be held liable and face administrative monetary penalties, “even if they did not intend to do so or were unaware that their activities enabled or facilitated contraventions of sections 6 to 8 of CASL by a third party.” The preventative measures recommended by the CRTC Bulletin for all individuals and organizations subject to CASL are comparable to the due diligence requirements of financial institutions with regard to know-your-client (KYC) requirements. In this regard, individuals and organizations are required to validate the identity of clients, avoid dealing with parties using P.O. boxes as mailing addresses or dealing in cryptocurrencies.

The CRTC Bulletin reinforces that charities and not-for-profits that are subject to CASL need to evidence due diligence in working with online marketing businesses that assist in emailing campaigns or with, for example, payment processing system operators in the sale of online services or tickets. Because of the different kinds of arrangements and technologies which may be caught by the CRTC’s interpretation of section 9 of CASL, charities and not-for-profits with an online presence should review their existing counterpart due diligence policies as well as the terms of service with third parties that provides technological services to the organization to ensure adequate measures for compliance with the CRTC Bulletin are in place and that protections for the charity or not-for-profit are also in place.

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Corporate Update

by | Nov 29, 2018 | Uncategorized

Nov 2018 Charity & NFP Law Update

B.C. Societies Act Transition Period Has Expired

November 28, 2018 was the final day for societies in B.C. to transition from the old B.C. Society Act to the new B.C. Societies Act. The new Act, which allows for more flexibility with the operation of societies in B.C., as outlined by B.C. Registries, came into force on November 28, 2016. Societies have therefore had two full years to complete the transition. As reported in the September 2017 Charity & NFP Law Update, the transition process required societies to complete an online Transition Application and re-file their constitution and by-laws with the Corporate Registry electronically. The CRA also indicated that specific clauses were required to be included in a societies’ bylaws, and that new governing documents were to be mailed to the Charities Directorate. Similar to the requirements for transitioning from the Canada Corporations Act to the Canada Not-for-profit Corporations Act, those that failed to transition would be dissolved. In the case of registered charities, dissolution could lead to the revocation of their registration as a charity.

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The 25th Annual Church & Charity Law Seminar Materials – November 8, 2018

by | Nov 29, 2018 | Charity & Not-for-Profit Law

Nov 2018 Charity & NFP Law Update

The 25th Annual Church & Charity Law Seminar™ hosted by Carters Professional Corporation in Mississauga, Ontario, on November 8, 2018, had 982 registered from the charitable and not-for-profit sector, including leaders of charities and churches, as well as accountants and lawyers. Designed to assist churches and charities in understanding developing trends in the law in order to reduce unnecessary exposure to legal liability, the Church & Charity Law™ Seminar has been held annually since 1994. All handouts and presentation materials are now available at the links below in the order as presented, with the web links being Power Point slide shows.

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Industrial Design Amendments Facilitate Canada’s Accession to the Hague Agreement

by | Nov 29, 2018 | Uncategorized

Nov 2018 Charity & NFP Law Update

Industrial designs are a form of intellectual property that protect the visual design of objects, such as shapes, configurations or ornaments applied to a finished article. Traditionally, industrial designs have been used to protect innovative designs, such as furniture, lighting, accessories, kitchen utensils, and appliances. However, what often remains overlooked is the role industrial design rights play in protecting the design features (i.e., the “look and feel”) of virtual designs, including websites, platforms, and mobile applications. As a result, charities and not-for-profits that have unique websites and platforms or that are creating mobile phone applications should consider industrial design registration in order to protect the design elements of these interfaces. For example, if a website offers a visually appealing layout, a streamlined experience, or unique icons, text, and graphics it may be protectable as an industrial design. Industrial designs offer a unique set of exclusive rights that charities and not-for-profits should be mindful of when considering their intellectual property rights.

Interestingly, on November 5, 2018 major changes to Canada’s industrial design regime were implemented. The new legislation aligns Canada’s industrial design regime with international practice in various aspects. One key change that may impact charities and not-for-profits is that Canada joined the Hague System, an international registration system for industrial designs that allows an applicant in one member country to obtain protection of an industrial design in all 69 member countries based on one single international application. Accordingly, charities and not-for-profits can now register industrial designs in all member countries simultaneously through one application. Another important change is that the term of protection for industrial designs has increased to the later of 10 years from registration or 15 years from the publication date. Previously, owners of protected designs were entitled to ten years of exclusive rights to the protected designs from the date of registration. Lastly, prior to the amendments, an organization that disclosed its design publicly had only 12 months to file an application for protection of its disclosed design. Now applicants essentially have an additional six months to file industrial designs.

Many within the sector are speculating that these changes will lead to an influx in industrial design applications in Canada. As a result, these changes serve as a timely reminder to charities and not-for-profits to consider industrial design registration when assessing their intellectual property portfolios.

​Read the November 2018 Charity & NFP Law Update