by Dev User | Nov 29, 2018 | Uncategorized
Nov 2018 Charity & NFP Law Update
There is a growing global emphasis on and regulation of privacy as well as increasing stakeholder awareness and expectations with respect to how organizations handle their personal information. For example, the General Data Protection Regulation, which harmonizes data protection and privacy laws across all European Union jurisdictions, was implemented across the European Union on May 25, 2018. Further, on September 30, 2018, the negotiations were completed for the US-Mexico-Canada Agreement, which contains significant provisions on the transfer of personal information and data localization.
As well, in May 2018, the Office of the Privacy Commissioner of Canada (“OPC”) published two guidances for organizations subject to the Personal Information Protection and Electronic Documents Act (“PIPEDA”), Canada’s federal private sector privacy legislation – one regarding the concept of meaningful consent (which is to come into effect on January 1, 2019) and one on inappropriate data practices (which came into effect on July 1, 2018). Most recently, on November 1, 2018, the new data breach reporting and recordkeeping regime under PIPEDA came into force.
In light of these changes, many charities and not-for-profits have asked whether, and how, PIPEDA impacts them. As such, this bulletin provides a brief discussion on the intersection between PIPEDA and charities and not-for-profits, and recommends that charities and not-for-profits bring their policies and procedures into compliance with PIPEDA’s breach reporting and recordkeeping rules, even in circumstances where compliance may be voluntary.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 437.
Read the November 2018 Charity & NFP Law Update
by Dev User | Nov 29, 2018 | Uncategorized
Nov 2018 Charity & NFP Law Update
After much anticipation and uncertainty, changes to Canada’s trademark law have been set to take effect on June 17, 2019. The coming into force of the new law will result in significant changes to Canadian trademark law of which charities and not-for-profits will need to be well aware. Some of the main changes to trademark law have been discussed in Charity Law Bulletin No. 360, and are further outlined below, together with some recommendations that charities and not-for-profits will want to consider prior to the coming into force date.
The key changes that will impact charities and not-for-profits are the following:
- Trademark applicants will no longer be required to indicate if the trademark has been used in Canada and, if so, the date of first use.
- The requirement that a trademark be in use before it proceeds to registration will be eliminated.
- The definition of “trademark” will be greatly expanded to include non-traditional trademarks, including colours, holograms, moving images, sounds, scents, tastes, and textures.
- Canada will become a member of the Madrid Protocol that will allow applicants and registrants to obtain international registration of trademarks in any of the 102 member countries through a streamlined process without the need to file national applications in each country.
- The Nice Classification of goods and services will be adopted and, as a result, applicants will be required to classify goods and services in accordance with the classification system.
- A class-based government fee system will be introduced for filing and for renewal.
- Trademarks will be examined for distinctiveness which will make it harder to register trademarks.
- The term of registration will be reduced from 15 years to 10 years.
Charites and not-for-profits should consider the following prior to the implementation of the new law on June 17, 2019:
- Proactively file trademark applications before the class-based government fee system is implemented which will result in an increase in government fees.
- Renew registrations prior to June 17, 2019 to take advantage of the 15 year renewal period and to save on fees, as it will be much more expensive to renew registrations after the new law is in force.
- Consider expanding goods and services in existing registrations before the increase of government filing fees.
- Beware of trolls. Until now, trademark trolls in Canada were not really an issue. However, because it will now be possible to obtain registration of a trademark without use, trademark trolls in Canada have already arrived. The Canadian Intellectual Property Office has reported that over 500 trademark applications have been filed covering all 45 classes of goods and services and nearly 100% of those applications were filed by trolls, likely with the intent to extort money from legitimate trademark owners that have not filed applications. This will likely continue and become an even more prevalent problem as we approach the implementation date. As a result, charities and not-for-profits must be proactive in filing for new trademark registrations and expanding existing registrations now in order to avoid falling victim to trademark trolls.
- Given the increase of trademark trolls and the expected increase in Canadian trademark filings from applicants around the world, it will be even more important to monitor trademark filings through trademark watching services in order to enforce trademark rights.
Read the November 2018 Charity & NFP Law Update
by Dev User | Nov 29, 2018 | Uncategorized
Nov 2018 Charity & NFP Law Update
On October 12, 2018, the British Columbia Superior Court released its decision in Surrey Knights Junior Hockey v The Pacific Junior Hockey League, 2018 BCSC 1748. In this decision, the court held that an amateur hockey league had violated the principles of procedural fairness by failing to provide sufficient notice to one of its teams of its risk of expulsion, instituting proceedings against the team in an untimely manner, and failing to provide an unbiased tribunal during the hearing regarding the possible expulsion of the team. Further, the court found that the league’s conduct was oppressive to the team contrary to subsection 102(1) of the British Columbia Societies Act (“Act”).
The coach of the Surrey Knights Junior Hockey team (the “Team”), Mr. Craighead, had been disciplined by BC Hockey for improper conduct during a game during which Mr. Craighead entered the opposing team’s bench and allegedly assaulted the opposing coach (“the Incident”). Soon after, the Pacific Junior Hockey League (“PJHL”), of which the Team was a member, moved to expel the Team as a result of Mr. Craighead’s conduct. There were two issues at hand with respect to the decision to expel the Team: 1) whether PJHL had breached the rules of procedural fairness, and 2) whether PJHL had conducted itself in an oppressive manner, violating section 102 of the Act.
In determining its jurisdiction over the matter, the court referenced Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (“Wall decision”), discussed in Church Law Bulletin No. 54, and affirmed that it would only interfere with decisions of voluntary associations where legal rights were at stake. The court agreed that legal, contractual rights were at issue. It stated that the right of a member to procedural fairness lies on a spectrum, “depending upon the nature of the society that the court is examining. The proceedings of a purely social club lie at the one end of the spectrum and a member risking loss of employment or livelihood lies at the other.” Since PJHL’s decision to expel the Team would financially impact the team’s owners, deprive the coach of his livelihood, and interfere with the players’ opportunity to play junior hockey, the court employed a “more rigorous ‘natural justice’ standard of procedural fairness”.
The court found that PJHL had breached the requirements of procedural fairness by failing to provide sufficient and timely notice with respect to the possible expulsion of the Team and an unbiased decision-maker with respect to the hearing. As a result, the Team and is owners were deprived of the opportunity to respond to the complaint despite the fact that the PJHL bylaws provide the member with such an opportunity before the decision is made. Further, the president of PJHL, who himself acknowledged having a conflict of interest in the matter, was involved in various decisions that the court found “significant to the hearing itself”, and gave rise to an objective perception of bias. As such, the court found that PJHL had breached the requirements of procedural fairness under common law.
The court also held that PJHL had conducted itself in an oppressive and unfairly prejudicial manner in violation of section 102 of the Act. To prove oppressive conduct, the Team was required to establish that there had been a breach of their reasonable expectations in the context of the relationship between the Team and PJHL and in the circumstances of the dispute. The court accepted the following expectations of the Team as reasonable in the circumstances, both of which were violated: 1) that its players could participate in the league “free of unfair interference” from PJHL; and 2) that PJHL would conduct itself in accordance to its bylaws and the principles of natural justice, as discussed above.
The court was clear that PJHL was permitted to expel its team as provided for in its bylaws. However, the court held that PJHL had engaged in oppressive and unfairly prejudicial conduct towards the Team and its owners for several reasons: the wrongdoer, Mr. Craighead, had already received a “significant penalty” for his conduct; the stakes at interest of the owners, coach, and players; the reasonable expectation of the Team; and because PJHL owed its obligation to act fairly towards the Team and not just its owners.
This case highlights that courts will scrutinize the bylaws of a society when claims are made with respect to oppressive conduct or breaches of procedural fairness. Where a charity or not-for-profit has their own bylaws, the courts are apt in recognizing a legal, contractual right and can exercise its jurisdiction over the matter. As such, charities and not-for-profits should maintain current bylaws, and ensure that their conduct is in line with the principles of procedural fairness as it relates to the bylaws.
Read the November 2018 Charity & NFP Law Update
