by Dev User | Feb 25, 2016 | Charity & Not-for-Profit Law, Faith-Based Organizations
Ontario OCA Corporations Going Federal: Issues to Consider
CRA News
Testamentary Charitable Giving – The New Regime
Ontario Court Recognizes New Invasion of Privacy Tort
Discriminatory Will Provision Ruled Invalid
Ontario Human Rights Commission Updates Policy on Creed
FCA Revokes Charitable Status Based on Failure to Maintain Proper Books and Records
CRA Views: Non-Resident Donors Required to File a Tax Return
CRA Views: No Change in CRA’s Position on Public Bodies as Qualified Donees
BC New Societies Act Coming Into Force on November 28, 2016
Claim of Breach of Fiduciary Duty Struck in Class Action Against University
Tax Preparers Convicted of Fraud in BC Court
CRTC Issues Second Warrant Under CASL
ONN Submission Focuses on “Nonprofit Social Enterprise”
FATF Plenary Meeting Held this Month
Giving Australia 2015-2016 Project
Ottawa Region Charity & Not-for-Profit Law Seminar Materials Available
February 2016 Charity & NFP Law Update
by Dev User | Feb 25, 2016 | Charity & Not-for-Profit Law, Expertise
Charity & NFP Law Bulletin No. 379, February 25, 2016
As a result of the repeated delay in the proclamation of the Ontario Not-for-Profit Corporations Act, 2010 (“ONCA”), some Ontario not-for-profit corporations under Part III of the Corporations Act (“OCA”) are considering whether to give up waiting for the proclamation of the ONCA by continuing under the federal Canada Not-for-Profit Corporations Act (“CNCA”). The CNCA was enacted in 2009 and proclaimed on October 17, 2011. Is it suitable for an OCA corporation to do so?
Ever since the enactment of the ONCA in 2010, OCA corporations have been waiting for the proclamation of the ONCA. The Ontario Ministry of Government and Consumer Services announced on September 17, 2015, that the ONCA will not come into effect for at least another two years until two things have happened: (a) the Legislature has passed technical amendments to the ONCA and related legislation; and (b) technology at the Ministry is upgraded to support these changes and improve service delivery. Once the ONCA is proclaimed, existing OCA corporations will have three years to transition under the ONCA.
Ontario not-for-profit corporations have been left in corporate limbo for six years since 2010, having to make the difficult decision whether to update their objects and by-laws to further their mission or to wait for the proclamation of the ONCA before making those changes. The problem with waiting is that they do not know how long the wait might be. On the other hand, the problem with updating the objects and by-laws first is that those updates would have to be made under the rules in the OCA and they may have to be updated again after proclamation to comply with the new rules in the ONCA. The question is whether continuing into the CNCA is a suitable solution to avoid these difficulties.
Another issue to consider is whether it would be desirable for OCA corporations to move into the federal jurisdiction for other reasons. This question is worth asking since this option was not available under the Canada Corporations Act, the predecessor to the CNCA, which did not permit corporations from another jurisdiction to continue under the Act.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 379.
by admin | Feb 25, 2016 | Charity & Not-for-Profit Law
Announcement on Improvements to CRA Correspondence
On February 11, 2016, the Minister of National Revenue, Diane Lebouthillier, announced improvements in how CRA communicates with Canadians. Beginning in February 2016, CRA will send taxpayers simplified and easier-to-read Notices of Assessment with respect to their income tax and benefit returns. In July 2016, recipients will receive simplified Benefits Notices for family benefits and the GST/HST credit. Furthermore, CRA will make the majority of its correspondence, such as the Notices, available online through a service called My Account.
These changes come as a result of a review of international best practices, feedback from the public and extensive user-experience testing to ensure that the notices can be understood and used by Canadians with varying information needs. The content of more customized and technical correspondence with the public is scheduled for streamlining over the next two years.
Webpage with Questions and Answers about Making Donations
On February 9, 2016, CRA published a new webpage called Questions and answers about making donations, which provides information in response to frequently asked questions about making charitable donations. More specifically, the webpage provides information about how individuals can find out if a charity is registered, whether a charity has to give a receipt when it receives a donation, whether a charity can return a donation and whether a charity can lend its registration number to another organization so that it can give receipts. The Webpage also provides helpful responses to questions about receipting and information about how taxpayers can make complaints about charities and report charity fraud.
CRA Publishes Guide for Filling out Form T3010
On February 9, 2016, CRA published T4033 – Completing the Registered Charity Information Return (the “Guide”), which provides comprehensive information on how to fill out Form T3010, Registered Charity Information Return and Form TF725, Registered Charity Basic Information Sheet. It is targeted toward Canadian charities and national arts service organizations that are registered under the Income Tax Act (“ITA”) and are eligible to issue official donation receipts.
Under the ITA, every registered charity must file an information return each year. The return must be filed no later than six months after the end of the charity’s fiscal period. The Guide provides information about what must be included in a complete information return, where it is to be sent and how other correspondence is to be provided to CRA. The Guide also contains very specific information about how to fill out Form T3010, including line-by-line commentary on what information registered charities must provide to CRA to maintain registration and tax-exempt status.
by admin | Feb 25, 2016 | Charity & Not-for-Profit Law
By M. Elena Hoffstein – Guest Contributor, Charity & NFP Law Bulletin No. 380, February 25, 2016
On December 16, 2014, Bill C-43 received Royal Assent. The new rules introduced by the Bill affect the manner in which testamentary trusts are taxed, and in addition, change significantly the manner in which testamentary charitable gifts will be dealt with under the Income Tax Act, RSC 1985, c.1 (5th Supp.) (“ITA”).
In order to better appreciate the significance of the changes, it is important to review briefly the law as it was prior to 2016.
In the past, income and capital gains retained in inter vivos trusts were taxed at a different rate than testamentary trusts. Inter vivos trusts have always been taxed at the top marginal rates of tax. On the other hand testamentary trusts and certain pre-1971 inter vivos trusts have enjoyed access to progressive rates of tax and other benefits not available to inter vivos trusts. Bill C-43 has eliminated the various differences between inter vivos and testamentary trusts commencing in 2016. There are two exceptions to these new rules. Firstly, the progressive tax rates will continue to apply to the first thirty-six (36) months of an estate that arises as a consequence of the death of an individual and that is a testamentary trust. This type of trust has been given a new name, the graduated rate estate or GRE, as it is now affectionately named. The second exception is for trusts that qualify as qualified disability trusts or QDTs for disabled individuals. It is not intended to discuss QDTs in this Bulletin.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 380.
by admin | Feb 25, 2016 | Charity & Not-for-Profit Law, Privacy Law & Anti-Spam
New technology in the digital age involves the routine collection and aggregation of highly sensitive personal information that is readily available in electronic formats. This poses new threats to the right of privacy and is continually forcing Canadian courts to develop novel invasion of privacy laws.
As discussed in our Charity Law Bulletin No. 277, the Ontario Court of Appeal first recognized an invasion of privacy tort called “intrusion upon seclusion” in the 2012 case of Jones v. Tsige (“Jones”). On January 21, 2016, in Jane Doe 464533 v N.D. (“Doe”), the Ontario Superior Court of Justice (the “Court”) recognized yet another invasion of privacy tort called “public disclosure of private facts”, again expanding the scope of privacy laws in Ontario.
In Doe, the plaintiff and defendant previously had a relationship with one another. Under pressure from the defendant, the plaintiff recorded an intimate video of herself and sent it to the defendant upon reassurances that nobody else would see it. The plaintiff later learned that the defendant had shared the video with members of their mutual social circle and posted it on an Internet pornography website. According to uncontested facts, this has had a significant and long-lasting effect, both mentally and physically, on the plaintiff.
In coming to its decision, the Court drew heavily on the Jones decision which referenced a seminal legal article outlining four common law privacy torts in the United States, including the tort of intrusion upon seclusion, and the tort of public disclosure of embarrassing private facts. The Court determined that the facts of this case best fit within the tort of public disclosure of private facts. The Court stated the elements of the new tort as follows: “one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized, or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.
Applying the facts to the elements of the tort, the Court held that a reasonable person would find that the defendant’s actions were highly offensive and that the published material was not of public concern. As a result, the Court awarded $100,000 in damages, the maximum amount of damages procedurally available under Ontario’s Simplified Procedure. This was quite different than the modest $10,000 award in Jones. In awarding damages, the Court held that the facts had similarity to the impact of a sexual assault and stated that “[a]lthough there was no physical violence, in these circumstances, especially in light of the multiple times the video was viewed by others and, more importantly, the potential for the video still to be in circulation, it is appropriate to regard this as tantamount to multiple assaults on the plaintiff’s dignity”. Notably, the defendant did not defend the action and the award was a default judgment. Had the defence argued the case fully the damages awarded may have been different.
In recognizing the increasingly rapid emergence of new technologies and online platforms, the Court noted that “[i]n the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection. Personal and private communications and the private sharing of intimate details of persons’ lives remain essential activities of human existence and day to day living”. It will be interesting to see if Canadian courts in other jurisdictions will be receptive to this tort. For charities and not-for-profits, this case illustrates that care must be taken to protect the privacy of individuals as the courts continue to recognize new invasion of privacy torts.
by Dev User | Feb 25, 2016 | Charity & Not-for-Profit Law, Employment Law, Expertise
Charity & NFP Law Bulletin No. 378, February 25, 2016
On December 10, 2015, the Ontario Human Rights Commission (the “OHRC”) announced the release of an update to its Policy on preventing discrimination based on creed (the “Policy”). The updated Policy, which replaces the previous policy on creed from 1996, surveys current and historical trends and issues that have shaped discrimination based on creed and introduces an expanded definition of creed. This expanded definition of creed leaves open the possible inclusion of non-religious belief systems that substantially influences a person’s identity, world view, and way of life. The Policy also provides a range of specific situations in which accommodation may be required based on creed and how they may be accommodated.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 378.
