by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update
Between November 2018 and January 2019, the European Data Protection Board, an independent European body established by the EU’s General Data Protection Regulation (“GDPR”), was seeking comment on the draft Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) (the “EDPB Guidelines”). The Guidelines provide some clarification for controllers and processors, including those not established in the EU, as defined under the GDPR. For general information on the GDPR, see Charity & NFP Law Bulletin No. 419.
The EDPB Guidelines confirm that, even if not established in the EU, controllers and processors, which may include Canadian charities and not-for-profits, may be caught by Article 3(2)(a) or (b) of the GDPR if they process personal data of EU residents to offer them goods or services or to monitor their behaviour within the EU. In this regard, while Article 3(2) of the GDPR applies to the personal data of data subjects who are in the EU, regardless of their citizenship, residence or other legal status, there must be an element of “targeting” individuals in the EU, either by offering goods or services to them or by monitoring their behaviour, in order for the GDPR to apply.
The EDPB Guidelines set out a number of factors that may, alone or in combination with one another, indicate the controller’s or processor’s intention to offer goods or services to a data subject in the EU, including: i) the EU or at least one Member State is mentioned by name; ii) marketing and advertisement campaigns have been directed at an EU audience; iii) EU addresses or telephone numbers are mentioned; iv) an EU domain name such as “.eu” is used; v) there are travel instructions from one or more EU Member States; vi) EU customers are mentioned; vii) EU languages or currencies are used; or viii) the delivery of goods in EU Member States is offered. If one or any combination of these factors is present, organizations in Canada, including charities and not-for-profits, may be subject to the GDPR.
The second type of activity triggering the application of Article 3(2) is the monitoring of data subject behaviour in the EU. “Monitoring behaviour” includes tracking individuals on the Internet to analyze or predict their personal preferences, behaviours and attitudes.
According to the EDPB Guidelines, in order for the GDPR to apply, the monitoring must relate to a data subject in the EU and the monitored behaviour must take place within the territory of the EU. The EDPB Guidelines state that “monitoring” does not exclusively mean tracking a person on the Internet, but can also include tracking through other types of network or technology, such as wearable and other smart devices. The EDPB Guidelines also provide that not every online collection or analysis of personal data of individuals in the EU will automatically count as “monitoring” within the meaning of Article 3(2), and that there must be subsequent behavioural analysis or profiling involving that data, for it to constitute “monitoring.”
The EDPB Guidelines go on to list examples of monitoring activities, including “online tracking through the use of cookies or other tracking techniques such as fingerprinting.” In this regard, using cookies on a website that is accessible to EU residents will be enough to trigger the application of the GDPR, potentially capturing Canadian charities and not-for profits. Other examples of “monitoring” that are listed include targeted advertisements to consumers based on their browsing behavior; closed circuit TV and various online activities related to an individual’s health status or diet.
If a Canadian charity or not-for profit is caught by the GDPR due to Article 3(2), it is required to designate a representative within the EU who is mandated to ensure its compliance with the GDPR. Failure to appoint a representative or failure to make the identity of the representative available to data subjects would be a breach of the GDPR, exposing it to the significant penalties available. The Canadian charity or not-for-profit would be able to avoid the obligation to appoint a representative if it can demonstrate that its data processing is “occasional”, does not include, on a large scale, processing of certain categories of particularly sensitive data, and does not pose a risk to the rights and freedoms of natural persons.
Given the significant penalties for non-compliance, Canadian charities and not-for-profits that may be caught by the GDPR should implement a plan to bring themselves into compliance as soon as possible.
Read the January 2019 Charity & NFP Law Update
by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update
The Canadian Radio-television and Telecommunications Commission (“CRTC”) updated its website on Frequently Asked Questions about Canada’s Anti-Spam Legislation (the “Updated FAQ”) on December 18, 2018. The Updated FAQ provides general information with respect to Canada’s Anti-Spam Legislation (“CASL”), including information about when CASL applies, what constitutes a commercial electronic message (“CEM”), as well as reference to additional guidance from the CRTC, such as the Compliance and Enforcement Information Bulletin CRTC 2018-415, discussed in the November 2018 Charity and NFP Law Update.
Regarding consent, the Updated FAQ states that express consent, unlike implied consent, does not expire. However, consent may be withdrawn at any time. The Updated FAQ also includes information regarding the conspicuous publication exemption, which permits the sending of CEMs to persons who have conspicuously published their electronic address, as well as other exemptions for surveys, market research and employment opportunities.
The Updated FAQ also lists a number of factors for determining whether a “personal relationship” exists in the context of social media. Since CASL applies to CEMs sent to an electronic address, the Updated FAQ defines electronic address as either an email account, an instant messaging account, a telephone account, or any similar account, such as a social media account, as determined on a case-by-case basis. However, the Updated FAQ states that CASL does not apply to the one-way general broadcast of a commercial message on social media.
With regard to the application of CASL to charities and not-for-profits, the Updated FAQ adds little new and removes one of the previously provided examples of CEMs exempt from CASL where the “primary purpose” is to raise funds for a charity.
The Updated FAQ also describes the investigative powers and enforcement actions of the CRTC. Investigative powers include the power to issue a Notice to Provide requiring persons to produce data, information or documents in their possession or control; the Preservation Demand requiring telecommunications service providers to preserve transmission data; the power to apply to court for a Search Warrant. Examples of enforcement actions include a Warning Letter, an Undertaking, a Notice of Violation or an Administrative Monetary Penalty. The Updated FAQ also provides information regarding the appeal process available upon being served with a Notice of Violation from the CRTC.
Read the January 2019 Charity & NFP Law Update
by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update
As previously reported in the November 2018 Charity & NFP Law Update, significant changes to Canada’s trademark laws will be coming into effect on June 17, 2019. While charities and not-for-profits should be cognizant of these changes, they should also be aware of additional changes coming to Canadian trademark law as a result of Bill C-86. As stated in the Legislation Update, above, the omnibus Bill C-86 received Royal Assent on December 13, 2018, and includes amendments to a wide variety of legislation, including the Trade-marks Act. The most significant amendments to the Trade-marks Act that will impact charities and not-for-profits are further discussed below.
Charities and not-for-profits that seek to enforce registered trademarks during the first three years of registration will be required to provide evidence of use of the trademarks in Canada (or have special circumstances justifying the non-use) in order to enforce the trademarks. In light of this change, trademark owners should ensure proper use of registered trademarks in accordance with the use requirements of the Trade-marks Act.
Perhaps the most significant change that will impact charities and not-for-profits is that the Registrar of Trademarks will have the authority to remove an official mark from the registry if the official mark owner is not a public authority or no longer exists. This change to the trademark regime will have large consequences on charities and not-for-profits that hold official marks.
Official marks are a unique and powerful form of intellectual property right. Although similar to trademarks in some respects, official marks are only granted to “public authorities” and owners of official marks are given extraordinary protection. Registered charities were generally able to obtain official marks until 2002 when the federal court tightened up the meaning of “public authority” to make it clear that status as a registered charity alone, is insufficient to constitute an organization as a public authority for the purpose of obtaining an official mark. As a result, despite the fact that official marks granted to charities are technically erroneously-issued, many of these official marks continue to sit on the trademarks database because with the current official mark regime, once an official mark is advertised, it remains on the trademarks register until it is either voluntarily withdrawn by the owner or struck from the register by a successful federal court action for judicial review. Both of these circumstances are very rare and, as a result, once an official mark is on the register, it is theoretically perpetual in duration.
However, the new amendments to the Trade-marks Act will provide an easy administrative process through which either the Registrar of Trademarks or any person can have an official mark invalidated if the entity that obtained the mark is not a public authority (which would catch registered charities) or no longer exists. As a result, official marks held by registered charities will be left vulnerable to attack and subject to removal once these provisions are in force. In taking steps to protect their intellectual property, charities and not-for-profits that have official marks should therefore immediately secure parallel registered trademarks for any official marks they currently have prior to these amendments coming into force.
As the above noted amendments to the Trade-marks Act do not have a set coming into force date, charities and not-for-profits should monitor the status of these amendments and in the meantime ensure that all trademarks are properly used and registered trademarks are secured for any official marks.
Read the January 2019 Charity & NFP Law Update
by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update
On October 26, 2018, the Human Rights Tribunal of Ontario (the “Tribunal”), in Rivard v Essex (County), dismissed an application alleging that a denial of coverage under an employer’s benefit plan for medical cannabis expenses was a breach of the Ontario Human Rights Code (“Code”) on grounds of discrimination on the basis of disability. In finding that the application should be dismissed on the basis that there was no reasonable prospect of success, the Tribunal clarified that the denial of coverage must be connected to the disability in order to potentially constitute a violation of protected rights under the Code. As the denial of medical cannabis coverage was not due to the applicant’s disability but rather the terms of the benefit plan, such denial was not discriminatory under the Code.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 440.
Read the January 2019 Charity & NFP Law Update
by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update<
On January 18, 2019, the Government of Ontario announced that new changes to the charitable gaming licence regime administered by the Alcohol and Gaming Commission of Ontario (“AGCO”) will now permit charities to hold electronic raffles both in-person and online, including the sale of tickets as well as the ability to pick winners and award prizes.
According to Info Bulletin No. 89: Expanding Raffle and Electronic Raffle Options for Charities in Ontario (the “Bulletin”), as published on November 30, 2018, the changes include an expanded variety of online raffles and raffle types that can now be conducted and managed electronically both in-person and online. The Bulletin also states that the AGCO is working towards an updated framework that would permit municipalities and First Nations licensing authorities to issue not just licences for paper-based raffles, as they are currently permitted, but also licences for charities to conduct and manage electronic raffles, for which the AGCO is currently the only licensing authority.
The new changes are now reflected in AGCO’s Electronic Raffles: Licensing webpage, which provides step-by-step information for charities applying for a gaming licence, including a new video as well as AGCO’s raffle licence terms and conditions. Similarly, AGCO’s Charitable Gaming: Suppliers webpage provides certain minimum technical standards that electronic raffle systems are required to meet. The AGCO has also updated its Notification Matrix for notifications to be submitted to the AGCO prior to an electronic raffle event as well as the reporting of incidents involving electronic raffles.
Ontario charities whose fundraising efforts include electronic raffles, either in-person or online or both, will want to pay attention to these changes as they may apply to their ongoing or planned campaigns.
Read the January 2019 Charity & NFP Law Update
by Dev User | Jan 31, 2019 | Uncategorized
Jan 2019 Charity & NFP Law Update
Ontario Bill 66, Restoring Ontario’s Competitiveness Act, 2018 (“Bill 66”) received first reading on December 6, 2019. Of particular interest to charities and not-for-profits as employers, Bill 66 proposes to amend the Employment Standards Act, 2000 (“ESA”), among other acts. The proposed changes in Bill 66 are intended to reduce the regulatory burden on businesses.
Currently, section 2 of the ESA requires employers to post in the workplace a poster containing information about the ESA (“ESA poster”) prepared by the Minister of Labour (“Minister”). Employers are also required to provide a copy of the most recent ESA poster to all employees. Bill 66 proposes to amend section 2 by removing the requirement for employers to post the ESA poster in the workplace, although they will continue to be required to provide employees with the most recent ESA poster.
Concerning excess hours of work, the ESA restricts the number of hours per work week that an employer may require or permit employees to work, up to a maximum of 48 hours. However, there is an exception carved out to allow for this time to be exceeded where an employer has approval from the Director of Employment Standards (“Director”). Bill 66 proposes to remove this exception, such that employers will no longer require the Director’s approval before entering into such agreements.
With regard to averaging overtime pay, employers are currently required to obtain the Director’s approval to enter into agreements with employees allowing them to average out the employee’s work hours over at least two weeks for the purposes of determining the employee’s entitlement to overtime pay. Bill 66 proposes to remove the requirement for employers to first obtain the Director’s approval before entering into averaging agreements with employees, though the period of averaging in any such agreements could not exceed four weeks.
If passed in its current form, Bill 66 is intended to reduce the administrative burden on employers when entering into work hour agreements and averaging agreements with employees, as well as with regard to ESA posters. However, as Bill 66 has only been carried through first reading, these provisions are subject to change as the Bill is debated. Nonetheless, charities and not-for-profits should monitor the status of Bill 66, as these provisions would come into force upon Royal Assent.
In addition to the Bill 66 changes, amending regulations O Reg 498/18 were filed on December 14, 2018, making changes to existing O Reg 285/01, When Work Deemed to be Performed, Exemptions and Special Rules under the ESA. O Reg 498/18 adds an additional exemption to exclude several kinds of workers from the three hour rule found in the ESA, which rule generally requires employers to pay an employee for a minimum of three hours’ wages in the event that an employee who regularly works more than three hours a day attends work, but works less than three hours despite being able to work for longer. Of the following workers that are now exempt from the three hour rule, several may be of interest to charities and not-for-profits: 1) a person employed as a student in a recreational program operated by a registered charity, whose work or duties are “directly connected” with the recreational program; 2) a person employed as a student whose duties are to instruct or supervise children, and 3) a person employed as a student who works at a camp for children.
Read the January 2019 Charity & NFP Law Update
