by Dev User | Nov 26, 2020 | Uncategorized
November 2020 Charity & NFP Law Update
Co-Edited by Terrance S. Carter, Maria Elena Hoffstein, and Adam Parachin (LexisNexis Butterworths, November 2020)
The 2021 Charities Legislation & Commentary, co-edited by Terrance S. Carter, M. Elena Hoffstein and Professor Adam Parachin, was published on November 24, 2020, and is now available. This consolidation provides an updated tool to facilitate charity law research by setting out excerpts from, and in some cases the entire text of approximately 145 key federal and Ontario statutes and 75 regulations that apply to charities current to September 19, 2020, with a forthcoming supplement to be included. Order the book by clicking here.
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by Dev User | Nov 26, 2020 | Uncategorized
November 2020 Charity & NFP Law Update
The 2020 Annual Church & Charity Law™ Webinar, hosted by Carters Professional Corporation on November 5, 2020, had over 1,100 registered attendees from the charitable and not-for-profit sector, including leaders of charities and churches, as well as accountants and lawyers. The special speakers this year were The Honourable Ratna Omidvar, C.M., O.Ont., Senator for Ontario and Former Deputy Chair of the Special Senate Committee on the Charitable Sector, as well as Tony Manconi, Director General of the Charities Directorate of the Canada Revenue Agency.
Designed to assist churches and charities in understanding developing trends in the law in order to reduce unnecessary exposure to legal liability, with a focus this year on legal issues that churches and charities can face when operating virtually, the Church & Charity Law™ Seminar has been held annually since 1994. The handouts and presentation materials from this year’s webinar are now available at the following link.
The date for the 2021 Annual Church and Charity Law™ Seminar has been set for Thursday,
November 4, 2021, so save the date.
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by Dev User | Nov 26, 2020 | Uncategorized
November 2020 Charity & NFP Law Update
The annual Legal Risk Management Checklist for Ontario-Based Charities, as well as the Legal Risk Management Checklist for Ontario-Based Not-for-Profits, updated as of November 2020, are now available through our website at https://carters.ca/.
Read the November 2020 Charity & NFP Law Update
by Dev User | Nov 26, 2020 | Uncategorized
November 2020 Charity & NFP Law Update
The Court of Appeal for Saskatchewan released its decision in Strom v Saskatchewan Registered Nurses’ Association on October 6, 2020. The decision concerned the appeal by a registered nurse (the “Appellant”) whose off-duty conduct on social media had prompted the Discipline Committee of the Saskatchewan Registered Nurses’ Association (the “Association”) to investigate and make a finding of professional misconduct against the Appellant.
In her social media posts, the Appellant complained about the treatment that her grandfather received in the last days before he died at a public long-term care centre in Macklin, Saskatchewan, sharing an article that criticized the level of care her grandfather received, advocating for increased government spending in hospice and palliative care. The Appellant also shared her social media posts with Saskatchewan’s Minister of Health and the Saskatchewan Opposition Leader. A number of employees of the health centre took offence at the Appellant’s social media posts and a complaint was made to the Association.
The Association conducted an investigation and found professional misconduct on the part of the Appellant, contrary to the Registered Nurses Act (“RNA”), the Code of Ethics for Registered Nurses, 2008 and the Standards & Foundation Competencies for the Practice of Registered Nurses, 2013, which the Association interpreted broadly in what it described as “principles of responsibility for off duty conduct”. The Association found that the Appellant had identified herself as a registered nurse to give credibility and legitimacy to her comments.
The Appellant challenged the Association’s decision before the Queen’s Bench for Saskatchewan, which affirmed the disciplinary decision and found that the Association had balanced the fundamental importance of open and forceful criticism of public institutions with the need for civility in the regulated profession.
The Court of Appeal for Saskatchewan found that the Association’s discretionary authority to discipline its members in accordance with its bylaws, such as the Code of Ethics for Registered Nurses, 2008, are provided in accordance with the RNA, which highlights the overriding purpose of protecting and promoting the public interest. The court held that criticism of the healthcare system is in the public interest and that the Association focused solely on the personally critical portions of the Appellant’s social media posts and failed to recognize that her comments were “self‑evidently intended to contribute to public awareness and public discourse”.
Therefore, the Court of Appeal for Saskatchewan allowed the appeal and set aside the disciplinary decision by the Association that the Appellant’s conduct constituted professional misconduct. The decision of the Court of Appeal for Saskatchewan is important with respect to the issue of freedom of expression, and the limits of professional governing bodies in imposing discipline on their members.
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by Dev User | Nov 26, 2020 | Uncategorized
November 2020 Charity & NFP Law Update
The Court of Appeal for British Columbia dismissed an appeal by the Delta Hospice Society (the “Society”) of a trial court ruling on the admission of members in the November 13, 2020 Farrish v Delta Hospice Society decision. Differing views on medical assistance in dying (“MAiD”) led to a disagreement between certain members of the Society that were in support of MAiD and the Society’s Board of Directors (“Board”) of whom a majority took a position that was not in support of MAiD. The Board had called a membership meeting to obtain membership approval over proposed significant changes to the Society’s constitution and bylaw prohibiting MAiD. The member petitioners alleged, in part, that in the period of time leading up to the membership meeting, the Board had refused membership to many applicants who did not support the Board’s position, while granting membership to those applicants who were in support of their position.
As discussed in the August 2020 Charity & NFP Law Update, on the issue of the Board’s rejection of membership applications that were not in support of its position, the court found that, “unless the criteria for membership are set out in the bylaw, the directors do not have the discretion to deny membership on some other basis that they themselves determine.” The Society’s bylaw had contained generic wording stating that “…on acceptance by the directors [a person] is a member.”
The Society appealed the trial court’s decision, arguing that the trial court committed an error in law “in finding that the Board’s conduct in rejecting applications for membership from those seen as pro‑MAiD or potentially pro‑MAiD, contravened the Act or Bylaws so as to justify the orders granted by the chambers judge.”
The Society argued that the trial court had erred by treating its past practice with membership applications (i.e. an open approach, granting membership to anyone who applied and paid an application fee) as being binding. The Court of Appeal stated that this fact was important, as it was ultimately relevant to questions of bad faith and remedy. Although the Society’s past practice was not decisive when considered in isolation, the Society’s bylaws contained no membership criteria and did not require anything other than payment of a fee. The Board therefore did not have discretion to determine membership based on anything other than that. The Court of Appeal stated that “if particular religious or conscientious views were intended to be requirements of membership, that should have been made clear in the constating documents. In the absence of clear and specific provisions in the Constitution and Bylaws, it was not for the [Board] to apply their own private criteria to keep out others who think differently than they.” The Court of Appeal indicated that if the Board’s proposed special resolutions to amend the Society’s governing documents were adopted, those new amendments would be similarly respected and enforceable by courts.
The Society argued that the “underlying Charter values” of freedom of association and freedom of conscience should inform a statutory discretion that was exercised by the trial court. While the Court of Appeal accepted that Charter values should not be ignored by courts in resolving private disputes, it concluded that the Charter rights “do not equate to, or indeed support, a right of the Board to control the Society’s membership lists on the basis of criteria not stated in the Bylaws,” and that a finding in favour of the Society would constitute the court’s acceptance of the directors’ acts, which were intended to exclude from membership those with opposing views.
Finally, while the Court of Appeal reiterated that it is not the role of courts to interfere on the issue of whether the Society should carry out programs that facilitate MAiD, the Court of Appeal did recognize that courts may intervene under the remedial provisions of the Act where a society acts in breach of its Bylaws or the Act. Based on these findings, the Court of Appeal dismissed the Society’s appeal.
This case underscores the importance of clearly drafting governing documents for an organization in order to reflect the intended parameters to apply. Further, when dealing with membership matters, charities and not-for-profits should ensure that their actions are in compliance with the provisions contained in their governing documents, as well as applicable incorporating legislation.
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by Dev User | Nov 26, 2020 | Uncategorized
November 2020 Charity & NFP Law Update
On October 20, 2020, Ontario private members’ Bill 219, Life Settlements and Loans Act, 2020 (“Bill 219”) was introduced to amend section 115 of the Ontario Insurance Act to permit a life insurance policy be donated to a charity, sold or assigned by the original policyholder or a transferee, or used as collateral security. Currently, section 115 of the Insurance Act prohibits any person, other than an insurer or its duly authorized agent, from trafficking or trading in life insurance policies. At this time, Bill 219 passed second reading and was referred to the Standing Committee on Finance and Economic Affairs.
The preamble to Bill 219 indicates that Ontario has a large and growing population of seniors on fixed incomes, who are currently prohibited from surrendering their policies to anyone other than their insurer, and as a result receive significantly less value than they would receive in a well-regulated secondary market. As such, the preamble indicates that the intent of the Bill is to modernize the Insurance Act to allow life settlements and life loans to provide Ontario seniors with an alternative financial resource, and allow them to access the fair market value of their life insurance policies, and thereby allowing Canadian seniors to benefit from secondary markets similar to those in the United States, United Kingdom, Europe, Japan and Quebec.
Bill 219 also requires that the original policy holder or transferee has held the policy for at least 24 months before donating it to a charity, selling or assigning it, or using it as collateral security; the transaction is in accordance with an agreement that provides full, true, and plain disclosure; the transaction is subject to a 10-day cooling-off period during which time the transaction may be cancelled without any reason; and the person or entity to whom the life insurance policy is sold or assigned, or who receives it as collateral security or as a donation, is prescribed by regulations.
Charities interested in the progress of Bill 219 may monitor the page of the Standing Committee on Finance and Economic Affairs at the Ontario Legislative Assembly for any notices of hearings, agendas and reports.
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