by Dev User | Mar 29, 2018 | Uncategorized
Mar 2018 Charity & NFP Law Update
On February 28, 2018 the House of Commons’ Standing Committee on Access to Information, Privacy and Ethics (the “Committee”) tabled for consideration its report “Towards Privacy by Design: Review of the Personal Information Protection and Electronic Documents Act” (the “Report”). The Report contains 19 recommendations that would update the Personal Information Protection and Electronic Documents Act (“PIPEDA”) and align it with the European Union’s General Data Protection Regulation (“GDPR”), which is coming into force in May, 2018.
Several of the recommendations in the Report deal with consent under PIPEDA. The Report recommends that consent remain the core model for PIPEDA’s privacy regime but that the consent model be enhanced and clarified by additional means (Recommendation 1). In response to concerns about organizations using personal information for secondary purposes such as marketing, the Report recommends that an opt-in system of consent – in which users explicitly choose to disclose their personal information – be implemented as the default for any use of personal information for secondary purposes and, potentially, for all purposes (Recommendation 2). Affirming that the right to revoke consent is a key element in maintaining a consent-based privacy model, the Report recommends that the government study the issue of revocation of consent and its legal and practical implications, particularly in relation to social media, where personal information may have been copied and shared with others (Recommendation 4). The Report examines the challenges of the consent-based model when dealing with minors, particularly in light of the GDPR and the United States Children’s Online Privacy Protection Act, both of which mandate parental consent for collecting personal information from children below a prescribed age. The Report recommends that the government consider implementing specific rules of consent for minors and for the collection, use and disclosure of their personal information, which would limit the ability of organizations to collect, use and disclose the personal information of minors (Recommendation 9).
The Report also makes a number of recommendations that address new rights inspired by the GDPR. The Report recommends that PIPEDA be amended to provide for a right to data portability which would allow users to request and easily transfer their personal information from one provider to another (Recommendation 10). The Report recommends that the government consider including in PIPEDA a framework for a right to erasure in which online information could be deleted, including, at a minimum, the right for minors to have their information taken down (Recommendation 11). The Report also recommends that the government consider including a framework for a right to de-indexing, which would not delete the information but would ensure that it no longer appears in online searches, and that this right would be expressly recognized in the case of personal information posted online while a person was a minor (Recommendation 12). This was similarly recommended in the Office of the Privacy Commissioner of Canada’s Draft Position on Online Reputation, discussed in Charity & NFP Law Bulletin No. 416.
The Report also recommends that PIPEDA be amended to make “privacy by design” a central principle. Privacy by design, which has been entrenched in the GDPR, means that privacy considerations are taken into account at all stages of a service or system and that measures to protect personal information are implemented proactively and preventively (Recommendation 14).
A number of recommendations would grant new enforcement and audit powers to the Privacy Commissioner of Canada (Recommendations 15 and 16). The Report also recommends a collaborative approach with the European Union and with the Canadian provinces and territories to maintain Canada’s adequacy status under the GDPR (Recommendations 17 and 19) and that the government consider what changes must be made to PIPEDA to maintain its adequacy status under the GDPR (Recommendation 18). Adequacy status is required in order to ensure that data can continue to flow from the European Union to Canada.
As privacy continues to be a growing concern for legislators and the global community, charities and not-for-profits should continue to monitor these developments. Should the recommendations of the Report find their way into PIPEDA or any other Canadian legislation, these may potentially affect interactions with donors, volunteers, beneficiaries of charitable programs, and contractual counterparties, including employees and service providers.
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by Dev User | Mar 29, 2018 | Uncategorized
Mar 2018 Charity & NFP Law Update
As reported in the August 2017 Charity & NFP Law Update, Proposal Number 17-MAG008 (the “Amendments”) containing draft amendments to Ontario Regulation 4/01 under the Charities Accounting Act (“CAA”) were posted by the Office of the Public Guardian and Trustee of Ontario (“PGT”) on July 10, 2017. The Amendments outlined certain circumstances where charitable corporations would be authorized to pay directors and related persons for goods, services, or facilities, which would provide relief from the common law rule prohibiting the remuneration of directors of charitable corporations and persons related to them. After a period of consultation, the Amendments will come into force on April 1, 2018 as new s. 2.1 of Ontario Regulation 4/01 with no changes from the original draft posted earlier last summer.
As of April 1, 2018, charitable corporations will no longer need to obtain a s. 13 consent order under the CAA, or from open court, to remunerate directors where the circumstances outlined in s. 2.1 of the Ontario Regulation 4/01 apply, subject to the charitable corporation meeting a number of conditions.
The Amendments ease the process for incorporated charities in Ontario that want to rely upon their board members who can provide services in another capacity without the need for a s. 13 consent order or authorization from a court. As the process to obtain such orders can be time intensive, and generally requires the assistance of legal counsel, the upcoming amendments are a welcome change. New section 2.1 of Ontario Regulation 4/01 makes reference to the fact that the board must consider “any guidance respecting payments made under this section.” Charities should monitor the PGT’s publications for such guidance to be available in the immediate future once the Amendments come into force.
Read the March 2018 Charity & NFP Law Update
by Dev User | Mar 29, 2018 | Uncategorized
Mar 2018 Charity & NFP Law Update
As commented on in the Charity & NFP Law Bulletin No. 417, Budget 2018 proposed to amend the definition of “qualified donee” so that universities outside Canada are no longer required to be listed in Schedule VIII, which had previously been the case prior to the 2011 federal budget implementing a separate registration for “prescribed universities”. As a consequence, Budget 2018 proposed repealing section 3503 and Schedule VIII of the Income Tax Regulations so that there would be only one list of universities outside Canada that are qualified donees for the CRA to maintain, and for the public to check to determine qualified donee status.
On March 22, 2018, a Notice of Ways and Means Motion to implement Budget 2018 was posted by the Ministry of Finance. In it, the Ministry clarified that those universities named in Schedule VIII at the end of February 26, 2018 were “deemed to have applied for registration”. This clarification was in response to a number of practitioners pointing out that the original drafting of the proposed amendments in Budget 2018 may have inadvertently excluded a number of universities outside Canada that had previously been qualified donees due to the proposed amendments to the Income Tax Act and the repealing of Schedule VIII. These amendments have been proposed through Bill C-74. Charities should continue to monitor the status of Bill C-74 for further progress on its implementation.
Read the March 2018 Charity & NFP Law Update
by Dev User | Mar 29, 2018 | Expertise, Intellectual Property Law
Mar 2018 Charity & NFP Law Update
As previously reported, most recently in the October 2017 Charity & NFP Law Update, on June 19, 2014 major amendments to Canada’s Trademarks Act were passed into law. These amendments introduce significant changes to Canada’s trademark law, some of which are summarized in Charity Law Bulletin No. 360. When these amendments were passed into law, the Canadian Intellectual Property Office stated that the amendments would come into force on a date to be determined after the Trademarks Regulations have been revised, and relevant IT systems have been updated. In this regard, the implementation of these amendments was moved forward with the publication of the latest version of the Trademarks Regulations in the Official Gazette, which set February 1, 2019 as the anticipated coming into force date of the amendments. These changes to Canadian trademark law will introduce the most substantive changes to trademark law in Canada since 1950 and intend to bring Canada’s trademark law in line with various other countries around the world.
Perhaps the amendments that will have the most significant impact on charities and not-for-profits is the elimination of the pre-requisite to use a trademark in Canada prior to obtaining a registration certificate, and the increase in government application filing fees. As previously reported, this will effectively open the door for trademark squatters and pirates to register trademarks and extort value for them from the unregistered trademark owners. In fact, a few applicants have already begun taking advantage of the pending implementation of the amendments by filing hundreds of applications that cover very long lists of goods and services. The advantages of registration prior to the implementation of the amendments is that the government fees remain modest and the impending ability for those applications to eventually register without use. These trademark applications include well-known brands and common names and as a result, many in the sector are speculating that these applicants are abusing the Register given the upcoming amendments to the law and will likely be extorting value from unregistered trademark owners for these trademark registrations.
While the Trademarks Regulations will help to implement practices that will combat these abusive applications, the cost of recovering a trademark registration far outweighs the cost of securing registration. As a result, while the expected implementation date is still almost a year away, charities and not-for-profits are encouraged to carefully review trademark portfolios and be proactive in filing unregistered trademarks in advance of the implementation date to reduce the risk that third parties misappropriate their rights.
Read the March 2018 Charity & NFP Law Update
by Dev User | Mar 29, 2018 | Charity & Not-for-Profit Law, Employment Law, Expertise
On February 5, 2018, the Ontario Superior Court of Justice released a decision on a motion in Currie v Gledhill et al. An action for wrongful dismissal brought by Laurie Currie (the “Plaintiff”) named two co-defendants, Gledhill Avenue Child Care Centre (“Gledhill”) and the City of Toronto (the “City”). The Plaintiff’s motion sought leave of the court to amend her statement of claim in relation to the City being a “common employer”. However, while Gledhill admitted it was the Plaintiff’s former employer, the City denied having had an employment relationship with the Plaintiff. The City accordingly brought its own motion asking the court to dismiss the action against the City as it was not a “common employer.” This Bulletin will review this decision, focusing on the common employer doctrine. The decision is relevant for charities and not-for-profits which may receive significant funding from outside sources if those funding sources seek to have operational control or decision-making authority.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 418.
