by admin | Jan 28, 2016 | Privacy Law & Anti-Spam
On December 3, 2015, CRTC announced that it issued its first warrant under CASL to take down a “command-and-control server located in Toronto.” The warrant was issued as part of an international effort to disrupt the malware family Win32/Dorkbot, which infected more than one million computers in over 190 countries creating a “botnet”. A “botnet” is a group of computers that have been compromised by the installation of malware that can be instructed to steal information, such as passwords for online banking, and can be used in concerted efforts with other infected computers to overwhelm servers in coordinated attacks.
The CRTC is responsible for enforcement under CASL, and actions taken by the CRTC can include administrative monetary penalties, investigations, or taking action against those in contravention of CASL. Malware, and other malicious programs installed on a person’s computer through infected links or websites, are prohibited under section 8 of CASL, and action can be taken against persons who install programs on an individual’s computer where that individual did not expressly consent to the installation.
In its announcement, the CRTC expressed that it will continue to collaborate with local and international authorities to “aggressively pursue investigations of alleged violations under CASL. Charities and NPOs should take measures to ensure that their networks are not compromised by various forms of malware or viruses in order to protect themselves and their constituents from falling prey to these kinds of attacks.
by admin | Jan 28, 2016 | Charity & Not-for-Profit Law
On December 12, 2015, in the matter of Trinity Western University v The Law Society of British Columbia, Chief Justice Hinkson of the British Columbia Supreme Court quashed the decision of the Law Society of British Colombia (“LSBC”) to reject Trinity Western University’s (“TWU”) proposed law school as an approved faculty of law for the purpose of LSBC’s admissions program. The Court overturned the decision of LSBC because the Benchers, the governing body of LSBC, fettered their discretion by agreeing to be bound by a referendum of the LSBC members.
On December 16, 2013, the Federation of Law Societies of Canada accredited the TWU law school, subject to any future resolution by the LSBC Benchers to the contrary. The B.C. Minister of Advanced Education (the “Minister”) approved the granting of degrees to graduates of TWU’s proposed law school on December 17, 2013. Subsequently, the LSBC Benchers held a meeting on April 11, 2014, to vote on a motion declaring that TWU was not an approved faculty of law. This motion was defeated and the President of LSBC announced that LSBC had approved the TWU faculty of law.
Some members of the LSBC objected to the Benchers’ approval of the faculty of law because TWU, a private evangelical Christian university, requires its students and faculty to sign a faith-based Community Covenant to refrain from certain behavior, including “sexual intimacy outside of marriage between a man and a woman.” At a special meeting of members of the LSBC, called by some members of the LSBC, a resolution was passed directing the Benchers to declare that TWU is not an approved faculty of law. In response to that resolution, the Benchers put the question of approval of the TWU faculty of law to a referendum of its members and agreed to be bound by the results. As a result of the referendum, the Benchers reversed their previous decision to approve TWU, thereby prohibiting its graduates from practicing law in B.C. The Minister’s previous decision was also reversed.
Chief Justice Hinkson held that it was procedurally unfair for the LSBC to refuse to “allow TWU to present its case to the members of the LSBC on the same footing as the case against it was presented.” It was also an improper delegation of the Benchers’ authority to the members and an unjust fettering of their discretion to adopt the results of the referendum without considering the competing Charter rights of equality and freedom of religion. The results of the referendum were quashed and the April 11, 2014 decision of the Benchers approving the TWU law school was restored.
The LSBC has applied for leave to appeal the decision of Chief Justice Hinkson to the B.C. Court of Appeal. With appeals also pending in the Nova Scotia Court of Appeal (April 16, 2016) and the Ontario Court of Appeal, and in light of the conflicting decisions in the lower courts, the issue of the accreditation of the TWU law school is likely to reach the Supreme Court of Canada (SCC).
The different approaches of the three lower courts to the 2001 SCC case, Trinity Western University v British Columbia College of Teachers, (TWU v BCCT.), approving TWU’s faculty of education will only likely be settled once the TWU law school cases reach the SCC. The Divisional Court in Ontario distinguished the TWU v BCCT decision finding that it involved “different facts, a different statutory regime and a fundamentally different question” (Trinity Western University v The Law Society of Upper Canada). Justice Campbell of the Nova Scotia Supreme Court found that the TWU v BCCT decision was still relevant because “equality rights have not jumped the queue to now trump religious freedom” (Trinity Western University v Nova Scotia Barristers’ Society). And Chief Justice Hinkson, taking a similar approach as Justice Campbell, was not “persuaded that the circumstances or the jurisprudence respecting human rights have so fundamentally shifted the parameters of the debate as to render the decision in TWU v BCCT other than dispositive of many of the issues in this case.”
by admin | Jan 28, 2016 | Charity & Not-for-Profit Law
The Ontario government has passed new legislation to address situations where a charity or other not-for-profit corporation dissolves without having properly disposed of all of its assets. On December 10, 2015, Bill 144, the Budget Measures Act, 2015 (“Bill 144”), received Royal Assent and it will enact five new statutes, including the Forfeited Corporate Property Act, 2015 and the Escheats Act, 2015.
The Forfeited Corporate Property Act, 2015 and Escheats Act, 2015 will come into force on December 10, 2016, and will address how forfeited property is dealt with in Ontario, as well as implementing changes to the role of the Public Guardian and Trustee in dealing with forfeited property. The acts will also make changes in the law relating to the availability of forfeited corporate property to reviving corporations and creditors. As well, the new legislation will introduce changes in the processes by which claimants are able to recover forfeited corporate property.
In a press release dated November 18, 2015, the Ontario Ministry of Finance stated that the combined effect of these two Acts will be to reduce the number of corporate properties which will forfeit to the Crown, to mitigate taxpayer risk arising from the forfeiture of property owned by dissolved corporations and to return forfeited property to productive use more efficiently. With the introduction of the Acts, the provincial legislature is also seeking to increase corporate accountability for associated costs of forfeited corporate property, as well as transparency with regard to its management.
by admin | Jan 28, 2016 | Charity & Not-for-Profit Law
On December 10, 2015, Bill 149, Rowan’s Law Advisory Committee Act (Rowan’s Law) passed a second reading in the Ontario legislature. If passed, Rowan’s Law, named after 17-year-old Rowan Stringer, who died after sustaining a concussion during a rugby game, would represent the first concussion protocol legislation for young athletes in Canada. This legislation will be of interest to any charities and not-for-profits which facilitate or engage in sporting activities, specifically those involving young athletes.
A focus of Bill 149 is to provide education regarding sports-related concussions to athletes, parents and coaches and is based on international concussion protocols developed in Switzerland. The legislation would establish a mandatory protocol that dictates when an athlete must be removed from applicable sport if a concussion is suspected. Further, it also mandates that medical clearance must be obtained before athletes are permitted to return to his or her chosen sport after sustaining a concussion.
Currently, an advisory committee has been established to provide recommendations to the legislature based on findings from the inquest into Rowan Stringer’s death. As mentioned above, it would be the first legislation of its kind in Canada and follows Bill 39, Education Amendment Act (Concussions), 2012 which was introduced in 2012 and would have established similar rules for teachers and coaches, but died on the Order Paper in October 2012 when the Legislature was prorogued. Charities and not-for-profits that provide services for children should remain attentive to the progress of Rowan’s Law and any policies which they may need to adopt to ensure compliance.
by admin | Jan 28, 2016 | Charity & Not-for-Profit Law
A Community Benefits Agreement (“CBA”) is a legally enforceable contract – most often a private contract (Community Benefits Agreements, by Julian Gross) – that addresses a range of community interests, and is the product of substantial community involvement with respect to a development project (Community Benefits Agreements: Definitions, Values and Legal Enforceability, by Julian Gross). Frameworks for agreements of this nature have recently become a reality in the province of Ontario, and when the Infrastructure for Jobs and Prosperity Act (“Infrastructure Act”), which received Royal Assent on June 4, 2015, comes into force, CBAs could become an important tool in the equitable distribution of infrastructure development wealth for not-for-profit community coalitions and organizations.
In general, CBAs are agreements that contain legally binding obligations on community organizations, community coalitions and public, as well as private developers, to ensure that development or redevelopment meets a set of criteria which will benefit the communities in which they are taking place. The number and kind of criteria are varied and depend largely on the vision and goals of the community organizations or coalitions seeking them. For example, a community organization or coalition seeking a CBA could require a developer to hire a certain percentage of employees from within the community for a particular development, or ensure that certain environmental concessions, such as for green space, are made, or commit to the allocation of a certain amount of commercial space for charitable or non-profit organizations within the areas being developed. In return for obtaining these contractual promises from developers, community organizations normally commit to a legal obligation to support the project in the media and public hearings, and agree to release any administrative or legal claims against the developer.
The Toronto Community Benefits Network (“TCBN”), one of the organizations responsible for the inclusion of community benefits in the Infrastructure Act, recently piloted a Community Benefits Framework (“Framework”) modeled on a CBA. It ensures that developers will draw apprenticeship jobs from disadvantaged communities in the area during the construction of the Eglinton Crosstown LRT. This Framework, the first of its kind in Ontario, is bolstered by the inclusion of the community benefits principle in the Infrastructure Planning Principles of the Infrastructure Act.
Though not yet in force, the Infrastructure Act will be a key component in guiding how the Province will spend an estimated $130 billion in infrastructure over the next 10 years. The community benefits principle in the Infrastructure Act promotes the engagement of community organizations with private and public developers as these development projects commence. The Infrastructure Act includes community benefits such as the improvement of communities affected by projects with job creation and training opportunities, and improvement of public spaces in the community, among others. Where provincial dollars are being spent on public infrastructure, CBAs, such as the one between TCBN and the LRT developers, serve as a mechanism for distributing those dollars in a more beneficial way for the community.
With momentum for CBAs growing in Ontario, particularly as a result of the Infrastructure Act, not-for-profits engaged in community development will want to pay close attention to the evolution of CBAs as they develop in the coming years and become more prolific.
by admin | Jan 28, 2016 | Charity & Not-for-Profit Law
On December 3, 2015, Royal Assent was granted to the Police Record Checks Reform Act, 2015 (the “Act”), which implements a new statutory regime in Ontario governing police checks to screen an individual for employment, volunteering or other purposes. Prior to the implementation of the Act, police record checks were governed by different procedures established by each respective regional/municipal police service resulting in a lack of consistency in both the processes followed and the terminology used to describe the various types of police record checks throughout Ontario.
A summary of key features of the Act include the following:
- Standardization of the police record checks that can be requested by individuals, as well as standardization of the information authorized for disclosure for each type of police check. The Act establishes three types of police checks, as follows: (1) criminal record checks (2) criminal record and judicial matters checks, and (3) vulnerable sector checks.
- Restrictions placed on the release of mental health information and non-conviction records. Non-conviction information can only be disclosed in the context of vulnerable sector checks where individuals are applying to work or volunteer with vulnerable individuals, subject to the conditions outlined in the Act. An individual may request reconsideration of the release of non-conviction records, if the individual believes the applicable conditions under the Act were not met.
- Police record checks will always be provided to the individual for review before any disclosure to an employer or other organization that requested the police check. After receiving the results of the police check on himself/herself an individual must provide written consent allowing the disclosure of the police record check results to another person or organization.
- Authorization to third-party background screening companies to conduct certain types of police checks.
As mentioned earlier in Charity Law Bulletin No. 303, while there is no statutory legal requirement to carry out police record checks on individuals working with vulnerable persons in Ontario, they are becoming the industry standard. Charities and not-for-profits who have employees and volunteers who work with children are often required to carry out police checks by insurance companies before the organization can qualify for abuse coverage.
Police record checks are an important first step in screening out potential volunteers and/or employees with criminal convictions involving violence or abuse to protect children and other vulnerable persons from harm. However, police record checks alone do not provide sufficient due diligence on their own, since not all perpetrators of abuse have a past criminal record. In this regard, a number of incidents of child abuse have involved first-time abusers.
Instead, police record checks should be the first step in a comprehensive child protection policy or protocol that includes other screening methods and procedures to protect children from potential harm through a charity or not-for-profit organization’s programs. Reference can be made to Church Law Bulletin No. 23: Thoughts on Child Protection Policies: How to Make Them Work for your Church or Charity for further information on child protection policies.
