by Dev User | May 30, 2019 | Uncategorized
May 2019 Charity & NFP Law update
Prince Edward Island Lobbyists Registration Act in Force
On April 1, 2019, Prince Edward Island’s Lobbyists Registration Act was proclaimed into force after receiving Royal Assent on December 20, 2017, as previously discussed in the February 2018 Charity & NFP Law Update. The Act applies to “in-house lobbyists”, who are generally employees paid to lobby public-office holders for their employer at least 50 hours every three months, and “consultant lobbyists”, who are paid by clients to lobby on behalf of that client. Pursuant to the Act, consultant lobbyists, in-house lobbyists employed by persons or partnerships, and a senior officer of organizations that employ in-house lobbyists are now required to file a return with the Registrar once every six months. The Act outlines the content requirements of the return for each filing individual in subsections 4(4), 6(4) and 7(4) respectively, and creates an offence for those who do not file returns, with a penalty of up to $25,000.
New Brunswick Updates Minimum Wage for Counsellor and Program Staff at Residential Summer Camps Regulation
On March 28, 2019, New Brunswick Regulation 2019-3, Minimum Wage for Counsellor and Program Staff at Residential Summer Camps Regulation (the “Minimum Wage Regulation”), was filed under the Employment Standards Act, and came into force on April 1, 2019, repealing the similar New Brunswick Regulation 2011-55. The Minimum Wage Regulation raises the minimum wage for “counsellors and program staff” employed at residential summer camps that have given notice to the Director in writing that they are charitable or non-profit organizations, provided that they operate during June, July, August or September and provide board and lodging for their counsellors and program staff. While minimum wage for counsellors and program staff will rise twice between April 1, 2019 and April 1, 2021, it is set equal to the weekly minimum wage payable under section 8 of the New Brunswick’s Minimum Wage Regulation as of April 1, 2022.
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by Dev User | May 30, 2019 | Uncategorized
May 2019 Charity & NFP Law Update
The CBA biannual Jane Burke-Robertson Award of Excellence in Charity and Not-For-Profit Law was awarded on May 6, 2019 at the CBA Charity Law Symposium to Terrance S. Carter. The award, which is named in memory of the late Jane Burke-Robertson in recognition of her many contributions to Canadian charity and not-for-profit law and commitment to the CBA, recognizes lawyers who have made a noted contribution and/or achievement in the development of charity and not-for-profit law in Canada.
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by Dev User | May 30, 2019 | Uncategorized
May 2019 Charity & NFP Law Update
On April 23, 2019, the Canadian Radio-television and Telecommunications Commission released its Compliance and Enforcement Decision CRTC 2019-111, which held that: 1) a business and its subsidiaries, nCrowd, had violated paragraphs 6(1)(a) and 6(2)(c) of Canada’s Anti-Spam Legislation (“CASL”); 2) its President and CEO at that time, Mr. Brian Conley, was liable for such violations under section 31; and 3) the administrative monetary penalty (“AMP”) of $100,000 issued against Mr. Conley was justified. Paragraph 6(1)(a) of CASL prohibits a business from “sending or causing or permitting to be sent to an electronic address a commercial electronic message” unless the recipient has given consent to receive such commercial electronic messages (“CEMs”), while paragraph 6(2)(c) requires a CEM to “set out an unsubscribe mechanism” pursuant to the requirements set out in section 11 of CASL.
In finding that nCrowd had violated paragraph 6(1)(a), the Commission found that nCrowd had failed to demonstrate that proper consent had been obtained with respect to an email list containing 1,928,015 addresses as: it did not provide a valid date on which consent was allegedly obtained; there were generic addresses on the list where it was unlikely that those address users would have consented to a “daily deals company such as nCrowd”; and it did not provide the steps it had taken to obtain consent to send CEMs to the emails on its list. Further, the Commission found that nCrowd violated paragraph 6(2)(c), as the CEMs lacked a proper unsubscribe mechanism, and noted that there were some complaints indicating that nCrowd had not complied with some of the requirements set out in CASL: the unsubscribe links in the CEMs did not function, the unsubscribe requests were not given effect within 10 days of the request being made, and the complainants needed to take further action to effect their requests. nCrowd also did not demonstrate that it had policies or procedures in place with respect to the unsubscribe process.
The Commission found that Mr. Conley, who was the President and CEO of the corporation at the time of the violations, “acquiesced” to the commission of the violations committed by nCrowd and was therefore personally liable as per section 31 of CASL. Since CASL does not provide a definition of “acquiesce”, the Commission defined it “as agreeing to something tacitly, silently, passively, or without protest” based on its ordinary meaning and Canadian jurisprudence. The Commission held that it was not reasonable to believe that Mr. Conley had no knowledge of the violations given that: Mr. Conley had “experience with email distribution platforms (having invented one)”; such platform was an important marketing tool for nCrowd; Mr. Conley was involved in acquiring the email list as a part of nCrowd’s “major acquisition” of another company; and that evidence indicated that Mr. Conley had knowledge of CASL generally.
Lastly, the Commission found that the AMP of $100,000 issued against Mr. Conley was reasonable, taking into consideration factors that are set out in subsection 20(3) of CASL, which include: the purpose of the penalty; nature and scope of the violation; the person’s ability to pay the penalty; and more. Some of the factors cited by the Commission as justification for the amount of AMP included, amongst others: the AMP could promote compliance by Mr. Conley with CASL in future endeavors; the violations were serious; Mr. Conley, who had a net worth exceeding $1 million, was able to pay the amount; and the fact that Mr. Conley had not provided any evidence to support his claim that he was unable to pay the penalty.
This decision serves as a reminder to charities and not-for-profits that emails to donors and supporters should be sent with care, as communications that are CEMs will generally trigger obligations under CASL. Even registered charities, which are generally exempt from the CEM requirements provided that the CEMs are sent with the primary purpose of fundraising, may be caught under CASL if the nature of its communications do not fall within the scope of the CASL exemption. Violations under CASL can trigger not only corporate liability, but directors and officers could also be held personally liable for such violations.
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by Dev User | May 30, 2019 | Uncategorized
May 2019 Charity & NFP Law Update
The significant changes to Canada’s trademark law are quickly approaching, as the changes are set to take effect on June 17, 2019. These changes will affect most charities and not-for-profits and have been discussed in Charity Law Bulletin No. 360, as well as the November 2018 Charity & NFP Law Update.
Key changes that will impact charities and not-for-profits include:
- The removal of the current “use” requirements. Trademark applicants will not be required to have first used the trademark, whether in Canada or abroad, before registration. This has led to trademark squatting and trolling.
- A streamlined international application process. Applicants and registrants will be able to register trademarks internationally in any of the 102 Madrid Protocol member countries without needing to file applications in each country.
- Adoption of the Nice Classification of goods and services. Applicants will need to classify goods and services in accordance with one of 45 classes.
- The government fees to file a trademark application will significantly increase to $330 CAD per application for one class of goods or services, plus an additional $100 CAD for each additional class, as opposed to the current flat government filing fee of $250 CAD regardless of the number of classes of goods and services.
- Trademarks are going to be examined for distinctiveness, making it more difficult to register non-distinctive trademarks.
- The term of registration and renewal will be reduced from 15 years to 10 years.
As previously indicated, charities and not-for-profits should prepare now for the above-noted changes in the following ways:
- Carefully review trademark portfolios now to ensure that any outstanding trademark applications are filed while filing fees remain modest and prior to third parties poaching trademarks.
- Ensure all used variations of a trademark are properly protected. File new applications for variations of trademarks that are currently used and not registered.
- For existing registrations, ensure all appropriate goods and services are included in the registrations.
- To save on filing fees in the future, consider expanding the scope of coverage of existing registrations to goods and services that the marks will be used in association with in the future.
- Renew any trademark registrations now to avoid per class renewal fees.
- Actively monitor trademark filings through trademark watching services in order to enforce trademark right and to stop trademark squatters and trolls.
The Canadian Intellectual Property Office (CIPO) has indicated that in order to avoid delays, communications with the Trademarks Office should be filed in advance of June 13, 2019 and that it will temporarily deactivate most of its online services between June 13, 2019 and June 17, 2019 for system upgrades and enhancements. It is therefore vital that charities and not-for-profits are proactive and take any necessary action now in advance of June 13, 2019.
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by Dev User | May 30, 2019 | Uncategorized
May 2019 Charity & NFP Law Update
On November 2, 2018, the Ontario Superior Court of Justice delivered its decision in Jane Doe 72511 v Morgan confirming the privacy tort of public disclosure of private facts which had been previously recognized in Ontario in Jane Doe 464533 v N.D. (the “N.D. Case”). This decision reflects the increasing willingness of the civil courts, particularly in Ontario, to affirm the importance of privacy interests in emerging venues and platforms, particularly as the use of social media and online platforms becomes more prevalent.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 450.
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by Dev User | May 30, 2019 | Uncategorized
May 2019 Charity & NFP Law Update
On May 15, 2019, the Court of Appeal for Ontario released its decision in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, dismissing the appeal from the Divisional Court with regard to the constitutional validity of two policies of the College of Physicians and Surgeons of Ontario (“CPSO”), requiring physicians, even those who object on the basis of religion or conscience, to provide patients with an “effective referral” for services and resources, such as abortion and medical assistance in dying (the “CPSO Policies”). An effective referral in the CPSO Policies is defined as “a referral made in good faith, to a non-objecting, available and accessible physician, other health care professional, or agency.”
For the balance of this Bulletin, please see Church Law Bulletin No. 56.
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