by Dev User | Apr 26, 2018 | Uncategorized
Apr 2018 Charity & NFP Law Update
On March 28, 2018, the Ministry of Community Safety and Correctional Services introduced Proposal No. 18-CSCS006 (the “Proposal”) for public review and feedback until April 9, 2018. The Proposal contains a summary of a draft Exemptions Regulation and draft Operational Requirements Regulation under the Ontario Police Record Checks Reform Act, 2015 (the “PRCRA”). While the PRCRA received Royal Assent on December 3, 2015, it has not yet been proclaimed in force. As previously discussed in the January 2016 Charity & NFP Law Update, the PRCRA implements a new standardized regime governing police record checks across Ontario. The Proposal outlines the draft regulations necessary for the proclamation of the PRCRA.
The draft Exemptions Regulation outlines circumstances where a police record check would not have to comply with certain requirements under the Act. In that regard, the draft Exemptions Regulation proposes to exempt from the information disclosure restrictions under the PRCRA for employees, volunteers and service providers who come into direct contact with students in schools and child care settings for a period of one year from after the PRCRA comes into force in order to provide a transition period to permit organizations subject to the PRCRA to comply.
The draft Exemptions Regulation proposes to exempt police record checks conducted by organizations that have direct access to police databases from the PRCRA requirement to provide the police record checks to the individual before it is seen by the organization making the screening decision. This is because in some cases, the organization conducting a police record check is the same organization that intends to use the check to make a screening decision and it is therefore not possible to have the individual be the first to review the information. Examples of such organizations include the police services (who carry out police checks for internal hiring purposes), the Financial Services Commission of Ontario (which carries out police checks prior to licensing insurance agents) and others.
The draft Exemptions Regulation proposes to exempt caregivers, employees, volunteers, and students in licensed residential care settings providing care or services directly to children or youth, as well as prospective adoptive families and others from the PRCRA. This exemption is proposed in order to allow for a higher level of screening for the individuals outlined above.
The draft Operational Requirements Regulation specifies operational procedures that must be followed by police record check providers when they conduct police record checks. In relation to the disclosure of youth records, the draft Operational Requirements Regulation provides that records involving findings of guilt under the Youth Criminal Justice Act (YCJA) must be disclosed in a “separate record.” This ensures that an individual can receive their youth records, review them, and remove the separate page(s) when providing the remainder of the police record check to others, including prospective employers.
One of the three standard types of checks under the PRCRA is a vulnerable sector check (“VSC”), which is used to determine an individual’s suitability to work or volunteer in a position of trust or authority over vulnerable persons. The PRCRA defines a “vulnerable person” as a person who, because of his or her age, a disability or other circumstances, whether temporary or permanent, (a) is in a position of dependency on others, or (b) is otherwise at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them.
Under the PRCRA, the VSC is the only type of check in which a “non-conviction record” may be considered for potential disclosure. In determining whether a non-conviction record should be released as part of the VSC, a police service must ensure that the charge that resulted in the non-conviction record (1) relates to an offence specified in regulation(s); (2) the alleged victim of the charge was a child or vulnerable person; and (3) a review of police entries relating to the individual, based on specific factors (e.g., the number of incidents, why the incident did not result in a conviction), provides reasonable grounds to believe the individual has been engaged in a pattern of predation and presents a risk of harm to a child or vulnerable person.
The draft Operational Requirements Regulation also provides for reconsideration of disclosure of non-conviction records when an individual’s “non-conviction record” is included in a police record check. In that regard, the PRCRA provides that an individual can submit a request for reconsideration which could result in either the original decision being overturned and the non-conviction being removed from the police record check result; or the original decision being upheld and the non-conviction record remaining in the police record check result.
It is now industry standard for charities and not-for-profits that carry out programs involving vulnerable persons (including children, the elderly and other vulnerable adults) to require a VSC to help screen prospective volunteers, employees, and directors. The VSCs are an important screening measure to help to screen potential predators who may have previous convictions or charges, from working with vulnerable persons. The VSCs are also required by most insurers as a condition of abuse coverage.
As the new regime for police record checks is implemented in Ontario over the coming years, charities and not-for-profits should monitor those developments so that they can make the appropriate adjustments to their own policies and protocols used to screen individuals who will work with vulnerable persons. It should be noted that the VSCs are merely one step and on their own are inadequate as a screening tool, especially since some predators are first time offenders with no prior criminal records or charges. As such, VSCs should always be used in conjunction with other measures, such as a child protection policy or vulnerable persons’ policy that is consistently implemented within the organization’s programs.
Read the April 2018 Charity & NFP Law Update
by Dev User | Apr 26, 2018 | Uncategorized
Apr 2018 Charity & NFP Law Update
Guide RC4082, GST/HST Information for Charities Updated
On April 12, 2018, the CRA updated Guide RC4082, GST/HST Information for Charities to reflect changes to the GST/HST rebate for tour packages. Guide RC4082 discusses common tax situations for charities, and outlines the calculation of net tax remittances for charities that are GST/HST registrants, stating that 60% of the total of the GST/HST adjustments, including the GST/HST rebate for short-term accommodation in tour packages, can be included in the calculation. As proposed in the 2017 Federal Budget, the GST/HST rebate available to non-residents for the Canadian accommodation portion of eligible tour packages under the Foreign Convention and Tour Incentive Program was repealed in relation to accommodations supplied after March 22, 2017. In this regard, Guide RC4082 has been updated to specify that short-term accommodation in tour packages can be included in the GST/HST adjustment calculation if such tour packages were purchased on or before March 22, 2017.
The update to Guide RC4082 also clarified that while supplies of paid parking spaces at public hospitals made by charities or public sector bodies to patients, visitors, and hospital volunteers are exempt from GST/HST, parking supplied to hospital staff and medical professionals is generally taxable.
New CRA Video and Webpage on Issuing Donation Receipts for Golf Tournament Fundraisers
With the golf season about to begin, charities that host golf tournaments will be pleased to know that on April 24, 2018, the CRA added a new video to its online charities video gallery on golf tournament fundraisers. In this new video, the CRA provides guidance to charities hosting golf tournament fundraisers with respect to issuing donation receipts. The video explains the process for charities in three-steps. The first step is for the charity to identify and determine the fair market value of any benefit, which the CRA refers to as an advantage, such as door prizes, a round of golf, the use of a golf cart, dinner, refreshments, and other small value items (e.g. t-shirts or hats), that a participant/donor will receive in exchange for the registration fee to participate in the golf tournament. The video clarifies that it is not an advantage to include “a chance to win a prize for a hole-in-one” which is deemed to be too small and can be ignored.
The second step is to determine the donative intent of the participant/donor, i.e. if the value of the advantage is more than 80% of the registration fee, the donor will be considered not to have made a gift. The third step is to determine the eligible amount of the donation for receipting purposes, which is done by subtracting all advantages received by each participant/donor from the amount of their registration fee.
The CRA also has a new webpage with additional information for charities hosting golf tournaments. The webpage contains a graphic educational tool as well as general information about how to determine the value of certain advantages, such as cart rentals, meals, complimentary items, and raffle tickets. It also provides an example illustrating how to calculate the eligible amount of the donation for which a receipt may be issued.
Read the April 2018 Charity & NFP Law Update
by Dev User | Apr 19, 2018 | Uncategorized
The Impact of Anti-Terrorism Legislation on Charities in Canada: The Need for Balance
by Dev User | Mar 29, 2018 | Uncategorized
Mar 2018 Charity & NFP Law Update
Amendments to the Privacy Regulations, SOR/83-508 (the “Privacy Regulations”) under the Privacy Act and amendments to the Access to Information Regulations, SOR/83-507 under the Access to Information Act came into force on March 7, 2018 upon the registration of the Regulations Amending the Privacy Regulations: SOR/2018-39 and Regulations Amending the Access to Information Regulations: SOR/2018-38 (the “Amending Regulations”). Among the changes introduced, the Amending Regulations amended Schedule II of the Privacy Regulations to designate the Review and Analysis Division, Charities Directorate, Legislative Policy and Regulatory Affairs Branch, Canada Revenue Agency (“RAD”) as an investigative body for the purposes of s. 8(2)(e) of the Privacy Act. This designation means that government institutions will be able to disclose personal information to RAD for law enforcement purposes without having to obtain consent from the affected individuals. RAD will also be entitled to rely on the law enforcement exemption to deny requests for access to personal information made under either the Privacy Act or the Access to Information Act.
According to the CRA Privacy Impact Assessment (PIA) Summary – Review and Analysis Division, “RAD is responsible for delivering the Agency’s mandate under the Anti-Terrorism Act to prevent the abuse of registered charities for the financing of terrorism.” The CRA’s Report on the Charities Program 2015-2016 explains that it does this by reviewing applications for charitable registration, monitoring and auditing registered charities, and providing education on terrorism and terrorist financing-related issues.
It is interesting to note that, although RAD is a division of the CRA’s Charities Directorate, the Amending Regulations designate only RAD itself as an investigative body rather than the CRA Charities Directorate as a whole. As a result, it would appear that RAD has access to information gathering powers not available to the Charities Directorate itself.
The increased information-gathering powers given to RAD as an investigative body remove a certain expectation of privacy concerning the personal information of identifiable individuals associated with a charity, such as their “directors, trustees, officers or other officials.” This is in line with a trend towards decreased privacy that has seen the CRA include a new privacy warning statement in the most recent T3010 Registered Charity Information Return, which states that the CRA collects personal information, including that of “directors trustees, officers and/or like officials” from the T3010 under the authority of the Income Tax Act and uses this information as a basis for the indirect collection of additional personal information from other internal and external sources to assess the overall risk of registration. Charities and their directors, officers and other officials should be aware of RAD’s increased personal information-gathering power and ability to rely on the law enforcement exemption to deny requests for access to personal information under its control.
Read the March 2018 Charity & NFP Law Update
by Dev User | Mar 29, 2018 | Uncategorized
Mar 2018 Charity & NFP Law Update
Federal Bill C-74, Budget Implementation Act, 2018, No. 1
On March 27, 2018, Bill C-74, Budget Implementation Act, 2018 (“Bill C-74”) was introduced and received first reading at the House of Commons. If passed, Bill C-74 will implement certain measures proposed in the 2018 Federal Budget (“Budget 2018”), some of which will impact the charitable and not-for-profit sector, as discussed in Charity & NFP Law Bulletin No. 417. In this regard, Bill C-74 proposes to amend the s. 188(1.3) definition of “eligible donee” under the Income Tax Act (“ITA”) to include municipalities for purposes of revocation tax, and to amend the s. 149.1(1) definition of “qualified donee” to simplify the qualified donee status of universities outside of Canada. For further information regarding universities outside Canada, see “Ministry of Finance Clarifies Changes Concerning Prescribed Universities” below.
Ontario Bill 193, Rowan’s Law (Concussion Safety), 2018 and Rowans Law Consultations
On March 7, 2018, Bill 193, Rowan’s Law (Concussion Safety), 2018, received Royal Assent. With the exception of the provision establishing Rowan’s Law Day on the last Wednesday in September each year, which came into force on Royal Assent, this legislation, including the corresponding amendments to the Education Act, will come into force on a date to be set by proclamation. Rowan’s Law (Concussion Safety), 2018 follows recommendations set out in the September 2017 report of the Rowan’s Law Advisory Committee that was discussed in the June 2016 Charity & NFP Law Update, as well the September 2017 Charity & NFP Law Update. The Ministry of Tourism, Culture and Sport has started a consultation process for the development of regulations, policies and guidelines that will govern amateur competitive sport organizations and school boards. The consultation process, which will be open until May 7, 2018, also provides a consultation paper for discussion purposes.
Ontario Bill 3, Pay Transparency Act, 2018
On March 20, 2018, the Ontario government introduced Bill 3, Pay Transparency Act, 2018 (“Bill 3”) in the Legislature, where it has since been debated twice at second reading on March 26 and 28, 2018. Bill 3 replaces Bill 203, Pay Transparency Act, 2018 introduced on March 6, 2018 and which died on the order paper upon the prorogation of the Legislature on March 15, 2018. If passed, Bill 3 will establish a number of provisions regarding compensation-related information of employees and prospective employees. For example, Bill 3 would prohibit employers from seeking compensation history about a job applicant, and will require employers to include compensation information in publicly advertised job postings, along with a number of other related provisions. Prescribed employers would also be required to prepare “pay transparency reports” including information about the employer, their workforce composition, and differences in compensation in their workforce regarding gender and other prescribed characteristics. It is expected that these reporting requirements would first apply to the Ontario Public Service, and then employers with over 500 employees, to be followed then by employers with over 250 employees. If passed, Bill 3 would be scheduled to be in force as of January 1, 2019.
Ontario Bill 14, Personal Information Protection Act, 2018
On March 21, 2018, Ontario Bill 14, Personal Information Protection Act, 2018 (“Bill 14”), a private member’s bill, was introduced in the Legislature. Bill 14 passed second reading on March 22, 2018 and was referred to the Standing Committee on Justice Policy the same day. If passed, Bill 14 will apply to every organization, including unincorporated associations and not-for-profit organizations, but not to personal information subject to the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”), to Ontario’s Freedom of Information and Protection of Privacy Act, or to other similar provincial Acts. Bill 14 governs the collection, use and disclosure of personal information and, if passed, could potentially be deemed substantially similar to Part 1 of the PIPEDA. Pursuant to subsection 26(2) of PIPEDA, the Governor in Council may order that organizations and activities subject to provincial legislation that it deems substantially similar to be exempt from PIPEDA with respect to the collection, use or disclosure of personal information occurring in that province.
Amendments to Regulations under the Ontario Charities Accounting Act
As of April 1, 2018, new amendments to Ontario Regulation 4/01 under the Charities Accounting Act (“CAA”) will authorize charitable corporations to pay directors and related persons for goods, services, or facilities under certain limited circumstances. For more information, see “Regulations Concerning Directors’ Remuneration Coming into Force” below.
Proposed changes to Regulation 166/11 under Retirement Homes Act
On March 9, 2018, the Ministry of Seniors Affairs opened a consultation process looking for submissions from the public on Proposal 18-OSS001, related to the disclosure of cannabis-related offences by retirement home licence applicants, as well as by staff and volunteers in retirement homes, in anticipation of changes to the federal Controlled Drugs and Substances Act. Submissions are due March 30, 2018. As per the Consultation Report published in January 2017, it is worth noting that only a small number of retirement homes are not-for-profit, as opposed to long-term care homes licensed or approved under the Long-Term Care Homes Act, 2007.
Proposed changes to Regulation 79/10 under Long-Term Care Homes Act, 2007
On February 28, 2018, the Ministry of Health and Long-Term Care introduced Proposal 18-HLTC018, which contains a number of technical amendments dealing with penalties, fees and information required from licensees, as well as the disclosure of cannabis-related offences by staff and volunteers in anticipation of changes to the federal Controlled Drugs and Substances Act. Input from the public was due March 29, 2018.
Proposed Regulation on exemptions to Ticket Sales Act, 2017
On March 1, 2018, the Ministry of the Attorney General introduced Proposal 18-MAG001 on exemptions to the Ticket Sales Act, 2017, which is set to come into force on July 1, 2018. The Ticket Sales Act, 2017 already includes an exemption for registered charities, but this proposed regulation would generally exempt small venues, such as schools, including colleges and universities, churches or other places of worship, and buildings that are owned or operated by municipalities, school boards or community organizations. Comments were due March 21, 2018.
Read the March 2018 Charity & NFP Law Update
