The Impact of The US-MEXICO-CANADA AGREEMENT (USMCA) On Privacy and IP Issues

by | Oct 25, 2018 | Charity & Not-for-Profit Law, Expertise, Information Technology Law, Intellectual Property Law, Privacy Law & Anti-Spam

On September 30, 2018, the governments of the United States, Mexico, and Canada (“Parties” or “Party”) announced the completion of negotiations with respect to the United States-Mexico-Canada Agreement (“USMCA”). Although it has yet to be signed and ratified, the USMCA will govern trade and investment among the three Parties, replacing the North American Free Trade Agreement. All Canadians, including charities and not-for-profits, will be impacted by the USMCA, including its provisions relating to privacy and intellectual property (“IP”), as described in this Charity & NFP Law Bulletin.

For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 433.

Initial Order Involving the Humboldt Broncos’ Crowdfunding Campaign

by | Oct 25, 2018 | Uncategorized

Oct 2018 Charity & NFP Law Update

On August 15, 2018, the Saskatchewan Court of Queen’s Bench released an “Initial Order” in the application by the Humboldt Broncos Memorial Fund Inc. (“HBMFI”) in accordance with Saskatchewan’s The Informal Public Appeals Act (“IPAA”) and the Canada Not-for-profit Corporations Act (“CNCA”). The Initial Order dealt with the allocation of over fourteen million dollars raised through the GoFundMe online crowdfunding campaign (the “Campaign”), net of fees and other deductions, for the benefit of the victims of the accident of April 6, 2018 involving twenty-nine individuals, including members of the Humboldt Broncos junior hockey team, team coaches, team staff, the bus driver and other individuals associated with the team.

Saskatchewan was the only province in Canada to follow the recommendations of the Uniform Law Conference of Canada to enact legislation comparable to its Uniform Informal Public Appeals Act (“Uniform IPAA”). Therefore, the proceedings involving the HBMFI and the Campaign, which the Court stated constitutes a “public appeal” within the meaning the IPAA, are an important precedent. The Uniform IPAA defines “informal public appeals” as:

…any message, disseminated by whatever means, requesting donations from the public generally or from a section of the public in order to fulfill a personal purpose or a purpose of private or social utility, whether the donations are made in the form of a sum of money, including sums derived from a sale, the provision of a service, or a lottery, contest, entertainment or other event, or in the form of movable or immovable property.

The Initial Order included various declarations under the IPAA, including a declaration that the funds from the Campaign are subject to a “trust” within the meaning of the IPAA, that the object of the Campaign, as expressed in the GoFundMe platform, are the “object of the trust”, and that HBMFI is the trustee within the meaning of the IPAA. Because there is no trust document in regard to the trust and such document is not required under the IPAA, the Court also made a declaration that the Initial Order is the “governing authority” of the trust, consistent with clause 2(1)(c) of the IPAA.

The Initial Order further authorized and directed the investment of the funds from the Campaign in high interest savings accounts managed by a named financial services firm at no cost to HBMFI, the interim distribution of no more than ten percent of the funds to the twenty-nine affected individuals and their families, the appointment of an advisory committee, three information resource persons and legal counsel to HBMFI, as well as a declaration that a contractual indemnity in favour of certain named individuals is valid and enforceable under section 151 of the CNCA. The advisory committee was ordered to use its reasonable best efforts to submit its report on the proposed distribution of the funds on or before the hearing to be held on November 15, 2018.

Although no other province has comparable legislation, and the IPAA, as well as the Uniform IPAA, do not apply to qualified donees as defined under the Income Tax Act (Canada), registered charities relying on supporter-driven crowdfunding campaigns should consider the directions set out in this Initial Order in updating their own fundraising policies and any fundraising agreements they may be negotiating with third parties involving crowdfunding campaigns. Charities and not-for-profits in other parts of Canada will also want to monitor whether other provinces adopt comparable legislation to that currently in place in Saskatchewan in the coming years.

​Read the October 2019 Charity & NFP Law Update

Initial Order Involving the Humboldt Broncos’ Crowdfunding Campaign

by | Oct 25, 2018 | Uncategorized

Oct 2018 Charity & NFP Law Update

On August 15, 2018, the Saskatchewan Court of Queen’s Bench released an “Initial Order” in the application by the Humboldt Broncos Memorial Fund Inc. (“HBMFI”) in accordance with Saskatchewan’s The Informal Public Appeals Act (“IPAA”) and the Canada Not-for-profit Corporations Act (“CNCA”). The Initial Order dealt with the allocation of over fourteen million dollars raised through the GoFundMe online crowdfunding campaign (the “Campaign”), net of fees and other deductions, for the benefit of the victims of the accident of April 6, 2018 involving twenty-nine individuals, including members of the Humboldt Broncos junior hockey team, team coaches, team staff, the bus driver and other individuals associated with the team.

Saskatchewan was the only province in Canada to follow the recommendations of the Uniform Law Conference of Canada to enact legislation comparable to its Uniform Informal Public Appeals Act (“Uniform IPAA”). Therefore, the proceedings involving the HBMFI and the Campaign, which the Court stated constitutes a “public appeal” within the meaning the IPAA, are an important precedent. The Uniform IPAA defines “informal public appeals” as:

…any message, disseminated by whatever means, requesting donations from the public generally or from a section of the public in order to fulfill a personal purpose or a purpose of private or social utility, whether the donations are made in the form of a sum of money, including sums derived from a sale, the provision of a service, or a lottery, contest, entertainment or other event, or in the form of movable or immovable property.

The Initial Order included various declarations under the IPAA, including a declaration that the funds from the Campaign are subject to a “trust” within the meaning of the IPAA, that the object of the Campaign, as expressed in the GoFundMe platform, are the “object of the trust”, and that HBMFI is the trustee within the meaning of the IPAA. Because there is no trust document in regard to the trust and such document is not required under the IPAA, the Court also made a declaration that the Initial Order is the “governing authority” of the trust, consistent with clause 2(1)(c) of the IPAA.

The Initial Order further authorized and directed the investment of the funds from the Campaign in high interest savings accounts managed by a named financial services firm at no cost to HBMFI, the interim distribution of no more than ten percent of the funds to the twenty-nine affected individuals and their families, the appointment of an advisory committee, three information resource persons and legal counsel to HBMFI, as well as a declaration that a contractual indemnity in favour of certain named individuals is valid and enforceable under section 151 of the CNCA. The advisory committee was ordered to use its reasonable best efforts to submit its report on the proposed distribution of the funds on or before the hearing to be held on November 15, 2018.

Although no other province has comparable legislation, and the IPAA, as well as the Uniform IPAA, do not apply to qualified donees as defined under the Income Tax Act (Canada), registered charities relying on supporter-driven crowdfunding campaigns should consider the directions set out in this Initial Order in updating their own fundraising policies and any fundraising agreements they may be negotiating with third parties involving crowdfunding campaigns. Charities and not-for-profits in other parts of Canada will also want to monitor whether other provinces adopt comparable legislation to that currently in place in Saskatchewan in the coming years.

​Read the October 2019 Charity & NFP Law Update

CRA Releases Draft Guidance on Charities and Public Policy Advocacy

by | Oct 25, 2018 | Uncategorized

Oct 2018 Charity & NFP Law Update

On October 2, 2018, the Canada Revenue Agency (CRA) released for public consultation its draft guidance Charities and public policy advocacy (the “Draft Guidance”). The Draft Guidance follows the release of the draft legislative proposals announced by the Department of Finance on September 14, 2018 (“Draft Proposal”) for governing the public policy advocacy activities of charities, as discussed in last month’s Charity & NFP Law Bulletin No. 428, with additional comments provided in a submission by the Canadian Bar Association’s Charity and Not-for-Profit Law Section. As well, the Draft Guidance and the Draft Proposal follow last year’s Report of the Consultation Panel on the Political Activities of Charities published on May 4, 2017 (the “Consultation Report”), as discussed in Charity & NFP Law Bulletin No. 403. It is expected that the Draft Guidance will replace CRA’s Policy Statement CPS-022, Political activities, which currently interprets the Income Tax Act (“ITA”) provisions requiring charities to devote “substantially all” of their resources to charitable activities as an expenditure limit of 10% on political activities by charities.

For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 432.

​Read the October 2019 Charity & NFP Law Update