by Dev User | Jun 27, 2019 | Uncategorized
Jun 2019 Charity & NFP Law Update
On June 11, 2019, the Office of the Privacy Commissioner of Canada (“OPC”) announced that it is reframing its “Consultation on transborder data flows.” Originally launched on April 9, 2019 following the release of the OPC’s Equifax Report of Findings, as discussed in Charity and NFP Law Bulletin No. 445, the consultation was later suspended following the release of the Digital Charter by the Government of Canada on May 21, 2019, as discussed in Charity and NFP Law Bulletin No. 449. The OPC has now given the consultation a new name – it is now entitled the “Consultation on transfers for processing” – and a new scope. Although the reframed consultation continues to invite stakeholders to share their views on how to interpret and apply the current law, as originally framed, the OPC has, in response to the Digital Charter, expanded the scope of the consultation to include a series of new questions on how a future privacy law could effectively protect privacy in the context of transborder data flows. The new deadline for submissions is August 6, 2019.
In its reframed discussion document (the “OPC Paper”), the OPC again recognizes that its interpretation of the existing legislation in the Equifax Report of Findings was a departure from its previous guidances. In this regard, it had characterized the cross-border transfer of personal information for processing as a “disclosure” of personal information within the meaning of the Personal Information Protection and Electronic Documents Act (“PIPEDA”) requiring consent, rather than a “use”, which does not require consent. Acknowledging that this is a period of “some uncertainty”, the OPC Paper confirms that, at least until the conclusion of the consultation, the OPC does not expect organizations to change their practices.
The OPC Paper further identifies the Digital Charter, and its accompanying white paper, which discusses areas of potential amendment to PIPEDA, as having introduced a new “factor of uncertainty.” In this regard, the OPC Paper advises that the OPC intends to make recommendations to the Federal Government regarding amendments that should be made to PIPEDA and has therefore expanded this consultation in order to obtain stakeholder views on what recommendations would be desirable. It is not clear from the OPC Paper why stakeholders could not make such recommendations directly to the Federal Government rather than to the OPC, which is not responsible for PIPEDA or for making legislative amendments to PIPEDA. Pointing out that legislative change could take years, the OPC Paper states that it is necessary for the OPC to continue to receive submissions on how it should apply the current law, suggesting that it may publish amended guidelines concerning transborder data flows, even if they are destined to be short-lived.
Stating that the OPC’s long-term goal is to ensure effective privacy protection in the context of transborder data flows and transfers for processing, the OPC Paper points out that the PIPEDA principle of accountability “is not always effective in protecting privacy”, as demonstrated in Equifax, and suggests that PIPEDA be amended to empower the OPC to proactively inspect the practices of organizations to ensure that they truly are accountable. The OPC paper also suggests that Canada should seriously consider adopting a regime of standard contractual clauses approved by an “independent public authority” (which it suggests to be the “domestic regulator”, presumably the OPC), to add an additional level of review.
The OPC Paper also expresses the OPC’s concern with respect to the risk that information about activities that are legal in Canada, but which do not enjoy equal protection outside Canada, such as the purchase and use of cannabis, or donations to religious or political causes, could be used against individuals outside of Canada. Stating that the Government of Canada must protect its citizens in these circumstances, the OPC Paper suggests that one option might be to require meaningful consent when a transfer of personal information entails such risks. In an apparent softening of its position as stated in Equifax, the OPC Paper states that the OPC would not recommend that consent be required in the longer term for data transfers for processing if other effective means are found to protect the privacy rights of individuals.
Advising that it did not reach its conclusion in the Equifax decision lightly, but that it felt that its new interpretation was more consistent with PIPEDA, the OPC Paper states that the OPC now wishes to hear from all stakeholders in order to decide whether to apply the Equifax interpretation to all organizations. It is clear from the OPC Paper, however, that the OPC is still of the view that, as stated in Equifax, that transfers for processing are “disclosures” rather than “uses.” The OPC Paper goes on to ask its new questions about how a future law should effectively protect privacy in the context of transborder data flows and transfers for processing, followed by the original consultation questions about how the current law should be applied.
The OPC’s position on transborder data transfers and transfers for processing could have significant implications for charities and not-for-profits that are subject to PIPEDA or that choose to comply with PIPEDA. In this period of uncertainty, charities and not-for-profits should closely monitor the progress of this consultation process and may even wish to make a submission. Since it appears the OPC and the Federal Government still have some work to do in terms of coordinating their efforts, charities and not-for-profits should also stay alert to guidelines and changes to current legislation coming from the Federal Government in the context of the Digital Charter.
Read the June 2019 Charity & NFP Law Update
by Dev User | Jun 27, 2019 | Uncategorized
Jun 2019 Charity & NFP Law Update
New Regulations Amending the Canada Not-for-profit Corporations Regulations and Canada Cooperatives Regulations
As reported in the March 2019 Charity & NFP Law Update, [1] proposed amendments to the Canada Not-for-profit Corporations Regulations (“CNCR”) and the Canada Cooperatives Regulations (“Co-op Regulations”) were published in the Canada Gazette on March 16, 2019, with proposed regulatory text to amend both regulations. Subsequent to that, the final Regulations Amending the Canada Not-for-profit Corporations Regulations: SOR/2019-224 [2] and the Regulations Amending the Canada Cooperatives Regulations: SOR/2019-226 [3] were published in the Canada Gazette on June 17, 2019.
The final amending regulations are substantively the same as the draft regulations published in March 2019, although certain fees have been changed. In this regard, the amendments to the CNCR generally focus on fees and online services, and include reducing the fees for certain online services; adding new online services; increasing the fees for certain non-online services; removing certain fees; and imposing new fees, with a proposed escalator clause to adjust the fees periodically. Similarly, the proposed amendments to the Co-op Regulations generally focus on changes to service fees, and include a similar escalator clause. Amendments to both the CNCR and Co-op Regulations will come into force on January 15, 2020.
Read the June 2019 Charity & NFP Law Update
by Dev User | Jun 27, 2019 | Uncategorized
Jun 2019 Charity & NFP Law Update
Electronic Filing System for Charities (CHAMP) Now Active
The Canada Revenue Agency (“CRA”) has been offering new digital services since June 1, 2019 to charities in order to lighten the administrative burden that many charities face with respect to their filings. These services are the product of the Charities IT Modernization Project (also known as “CHAMP”), made possible in 2014 as a result of the 2014 Federal Budget discussed in Charity Law Bulletin No 330, which allocated $23 million to the Charities Directorate for the purpose of modernizing its IT system over the next five years. The rollout of CHAMP is now complete and online services are available through ‘My Business Account’ (“MyBA”) to assist with handling a charity’s tax matters.
MyBA allows organizations to apply for charitable status by submitting the T2050 form and allows charities to complete and file their annual T3010 Registered Charity Information Return, as well as update their information, such as addresses, list of directors, representatives, and certain post-registration amendments. Further, MyBA allows charities to upload supporting documents, correspond with the Charities Directorate on certain matters, access payroll and GST accounts, file T4 slips and GST returns, and view their account balance, transactions, and remitting requirements.
Directors and trustees of registered charities who wish to use the online platform will need to use their CRA user ID and their business number to get access to these services. Multiple users may access the same account simultaneously, although only one user will be able to perform specific tasks on the platform at a time. The CRA webpage, ‘Registration process to access the CRA login services’ provides more information with respect to how to obtain access.
Authorized representatives, including accountants, employees and lawyers, may also file materials on behalf of charities. In order to register as a representative, the representative must first register him or herself as such using the ‘Represent a Client’ service, after which the representative will receive a “RepID.” Alternatively, a business representing a charity, such as an accounting or law firm, can also be registered as a representative through a group account (“GroupID”), through which that business can manage the access and roles of its employees. Any representatives associated with that GroupID will have online access to the client information, provided that authorization has been given by the charity. Charities then need to authorize the representative (using the representative’s RepID, GroupID, or business number), either online through MyBA or by mailing the RC 59 Business Consent for Offline Access form. Obtaining the charity’s authorization will require the representative to submit an online request, enter the authorization request information, print the certification for the director or trustee’s signature, and submit the document online. More information can be found on the CRA webpage, ‘Represent a Client Overview.’
Read the June 2019 Charity & NFP Law Update
by Dev User | May 30, 2019 | Uncategorized
May 2019 Charity & NFP Law Update
As discussed in the October 2018 Charity & NFP Law Update, the Special Senate Committee on the Charitable Sector (the “Committee”) launched an e-consultation with an online questionnaire for charities (the “e-consultation”) to complete to help the Committee better understand the challenges faced by the charitable and not-for-profit sector. On May 17, 2019, the Committee released its partial findings of the e-consultation.
The partial findings were based on the responses of 695 charitable and non-profit organizations across Canada. The e-consultation found that charitable and non-profit organizations were generally small, with approximately 65% of the respondents indicating that their organizations had 10 or fewer employees, and one-third of the respondents indicating that their organizations had only one to five employees. With respect to volunteers, the e-consultation found that organizations with no paid employees were most likely to indicate that they were “very concerned” with finding and keeping volunteers. The e-consultation also found that 51% of respondents did not collect data on senior management diversity, and 56% of respondents did not gather data on employee diversity.
The Committee’s published findings are based only on the results from the e-consultation, and are only partial findings to date. As the Committee has completed its consultation process, it is now in the process of preparing its full report, which is expected to be released in September 2019.
Read the May 2019 Charity & NFP Law Update
