Clearing the Haze: Managing Cannabis in the Workplace in Ontario
Clearing the Haze: Managing Cannabis in the Workplace in Ontario
Minister Prohibited from Dealing in Mutual Funds with Congregation
Jan 2018 Charity & NFP Law Update
On November 30, 2017, the Ontario Securities Commission (“OSC”) released its decision in Mason (Re) to impose “restricted client terms and conditions” on a non-paid minister, lay leader, and mutual fund dealer registrant (“Mason”), from acting as a mutual fund dealer with regard to members of his church’s congregation or for their direct relatives. In this case, the OSC found that the work performed by Mason at his church, which included performing prayers, delivering messages to the congregation, and visiting the sick and persons in need, constituted an “outside business activity” within the meaning of Part 13.4 of Companion Policy 31-103 – Registration Requirements, Exemptions and Ongoing Registrant Obligations. Part 13.4 states that registrants must disclose, among other things, all officer and director positions and any positions of influence, including “paid or unpaid roles with charitable, social or religious organizations where the individual is in a position of power or influence and where the activity places the registered individual in contact with clients or potential clients, including positions where the registrant handles investments or monies of the organization.” In accordance with Part 13.4, the OSC imposed on Mason restricted client terms and conditions (“Restrictions”) because the OSC was of the opinion that Mason was in a position of power or potential influence over potential clients.
Mason had argued that he was not a pastor or religious leader, did not hold a position of authority in the church, and that the Restrictions would result in constructive discrimination under section 11 of Ontario’s Human Rights Code (“Code”) by infringing on his creed rights and adversely affecting his ability to fulfill his religious obligations. However, the OSC stated that “[t]he purpose of the [Restrictions] is not to prohibit registrants from volunteering with charitable or religious organizations, but to protect clients or potential clients from potential undue influence from a registrant who is in a position of power or potential influence, whether spiritual or otherwise”. In this case the Restrictions were intended to protect vulnerable individuals and so it was reasonable and bona fide under section 11(1)(a) of the Code.
This decision serves as a caution that if a charity or not-for-profit has directors, officers, volunteers or employees who are registered dealers with the OSC, then depending upon the role that each individual has within the organization, their involvement may have to be reported by the individual to the OSC as an “outside business activity” and may potentially result in restrictions being imposed by the OSC on that individual’s registration, including where the activities of volunteers and employees within the charity or not-for-profit put them in a position of power or influence, as was the case in this OSC decision.
Legislation Update
Jan 2018 Charity & NFP Law Update
Senate Adopts Motion to Appoint Special Committee on Charitable Sector
On January 30, 2018, the Senate of Canada debated and adopted a motion to appoint a Special Committee on the Charitable Sector (“Special Committee”) to “examine the impact of federal and provincial laws and policies governing charities, nonprofit organizations, foundations, and other similar groups; and to examine the impact of the voluntary sector in Canada.” The motion, as adopted, states that the Special Committee is to be composed of nine members and has “the power to send for persons, papers and records; to examine witnesses; and to publish such papers and evidence from day to day as may be ordered by the committee.” The Special Committee will be empowered to report from time to time, to submit a final report of its findings on or before December 31, 2018, and may publicize its findings up to 60 days after its final report is tabled.
Bill C-63, Budget Implementation Act No. 2, Receives Royal Assent
On December 14, 2017, Bill C-63, Budget Implementation Act No. 2 (“Bill C-63”) received Royal Assent. Bill C-63 contains amendments to the Income Tax Act (“ITA”), dealing with ecological gifts as proposed in the 2017 Federal Budget, and applies in respect of gifts made after March 21, 2017. Bill C-63 also contains amendments to the Excise Tax Act (“ETA”) regarding the calculation of net tax for charities. Bill C-63 was discussed in the October 2017 Charity & NFP Law Update. The 2017 Federal Budget was discussed in Charity & NFP Law Bulletin No. 399.
Bill C-305, An Act to amend the Criminal Code (mischief), Receives Royal Assent
On December 12, 2017, Bill C-305, An Act to amend the Criminal Code (mischief), amending the Criminal Code provisions dealing with the offence of mischief relating to religious property, received Royal Assent and was brought into force immediately. The amendment modifies the offence by extending the definition of “mischief relating to property” to encompass not only religious property, but also educational institutions, community centres and senior residences, amongst others, used by an “identifiable group”. Also, in coordination with Bill C-16 which received Royal Assent on June 19, 2017, as reviewed in the August 2017 Charity & NFP Law Update, the amendment also introduces “gender identity or expression” with regard to bias, prejudice or hate motivating the offence.
Ontario Bill 155, Life Leases Act, 2017
On September 20, 2017, Bill 155, Life Leases Act, 2017 (“Bill 155”), was introduced in the Legislative Assembly of Ontario and since October 5, 2017 has been with the Standing Committee on Social Policy. If passed, Bill 155 will be the first piece of legislation in Ontario dealing with life leases, a form of leasehold interest that many senior housing charities and not-for-profits have adopted in recent years.
Ontario Bill 193, Rowan’s Law (Concussion Safety), 2017
On December 14, 2017, the Minister of Tourism, Culture and Sport introduced Bill 193, Rowan’s Law (Concussion Safety), 2017 (“Bill 193”) to the Legislative Assembly of Ontario. Bill 193 follows the recommendations set out in the report of the Rowan’s Law Advisory Committee released in September 2017, which was discussed most recently in the September 2017 Charity & NFP Law Update. If passed, Bill 193 will provide Canada’s first framework to govern concussion prevention, detection, management and awareness in amateur competitive sport and schools, requiring that sports organizations, defined “as persons or entities that carry out, for profit or otherwise, a prescribed activity in connection with an amateur competitive sport and that satisfy such other criteria as may be prescribed”, comply with a number of requirements. In addition to proclaiming “Rowan’s Law Day” to be held every year on the last Wednesday of September, Bill 193 will also amend the Education Act by adding a new section authorizing the Minister of Education to establish and require school boards, as well as private schools, to comply with new policies and guidelines.
Ontario Bill 160, Strengthening Quality and Accountability for Patients Act, 2017 Receives Royal Assent
Ontario Bill 160, Strengthening Quality and Accountability for Patients Act, 2017, affecting a number of Acts regulating healthcare in Ontario received Royal Assent on December 12, 2017, with the majority of the provisions coming into force on proclamation. For further information, see the October 2017 Charity & NFP Law Update.
Amendments to Ontario’s Occupational Health and Safety Act now in force
On December 14, 2017, Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017 received Royal Assent. This brought amendments to Ontario’s Occupational Health and Safety Act into force on proclamation, introducing important changes affecting employers in the province, including charities and not-for-profits. For more information, see Amendments to Ontario Workplace Safety Legislation in Force, below.
Ontario Regulation 79/10 under Long-Term Care Homes Act now in force
Amendments to Ontario Regulation 79/10 under the Long-Term Care Homes Act are now in force since January 1, 2018. Further to the proposal, previously discussed in the September 2017 Charity & NFP Law Update, the amendments deal with reunification priority access beds (sections 206.1-206.2) and the disclosure of personal information (section 304.1).
Amendments to CYFSA and New Regulations Proposed under the Child, Youth and Family Services Act, 2017
On December 4, 2017, the Ministry of Children and Youth Services released a set of draft regulations under Child, Youth and Family Services Act, 2017 (“CYFSA”) concerning personal information. Part X of CYFSA establishes a new consent-based regime for the collection, use and disclosure of clients’ personal information by child, youth and family service providers and will have application to charities and not-for-profits that qualify as “service providers” under the CYFSA when it comes into force. For more information, see Child, Youth and Family Services Act, 2017 Draft Privacy Regulations posted below.
Quebec Bill 146 Implementing Fiscal Measures Affecting Charities
On December 2, 2017, Quebec Bill 146, An Act to give effect mainly to fiscal measures announced in the Budget Speech delivered on 28 March 2017 (“Bill 146”), received Royal Assent and came into force. The explanatory notes state that Bill 146 makes amendments to the Quebec Taxation Act and the Act respecting the Québec sales tax “similar to those made to the Income Tax Act and the Excise Tax Act by federal bills assented to in 2014, 2015 and 2016.” Amendments affecting charities include new section 7.18.2 of the Taxation Act permitting registered charities and registered amateur athletic associations to hold an interest as a member in a partnership without being considered to be carrying on a business. This corresponds with similar amendments that were made to the ITA in 2016 after being announced in the April 2015 federal budget and which were discussed in Charity Law Bulletin No. 363.
Saskatchewan Bill 55, The Provincial Health Authority Act
On December 4, 2017, Bill 53, The Provincial Health Authority Act (“Bill 53”) was proclaimed and came into force, with the exception of certain provisions. Bill 53 repealed The Regional Health Services Act with consequential amendments to a number of other acts. Because Bill 53 consolidates the operations of 12 former Regional Health Authorities into the Saskatchewan Health Authority, section 3-4(8) of Bill 53 states that any foundation “established with respect to a former regional health authority may, subject to any restrictions placed on the funds by donors, continue to use its funds as the foundation considers appropriate (a) to benefit any facility located in the health region associated with the former regional health authority; (b) to provide health services in the health region associated with the former regional health authority; or (c) for other charitable purposes for which the foundation was established.”
Corporate Update
Jan 2018 Charity & NFP Law Update
Canada Corporations Act Provisions and Regulations Repealed
On December 30, 2017, regulations under the Canada Corporations Act (“CCA”) (Canada Corporations Regulations) were repealed. This was followed by the repeal of the remaining provisions of the CCA on December 31, 2017. All federal not-for-profit corporations incorporated under Part II of the CCA have now either transitioned to the Canada Not-for-profit Corporations Act (“CNCA”) or have been dissolved. The repeal of the CCA was effected by Order Fixing December 31, 2017 as the Day on which Certain Provisions of the Act Come into Force dated December 15, 2017, which was published in the Canada Gazette on January 10, 2018. As well, the Canada Corporations Regulations were repealed as a result of the publication of Regulations Repealing the Canada Corporations Regulations in the Canada Gazette. Part II CCA corporations dissolved for failure to transition to the CNCA can apply to be revived and transitioned into the CNCA in one step through Form 4032: Articles of Revival (transition). For more information see Corporations Canada’s Revival (transition) guide.
Ontario Government Targets Early 2020 for ONCA Proclamation
Following the Royal Assent of Bill 154, Cutting Unnecessary Red Tape Act, 2017 (“Bill 154”) on November 14, 2017 the Government of Ontario stated on its webpage that it is upgrading technology to support the changes implemented by Bill 154 and to improve service delivery. It has stated that it is working to bring the Ontario Not-for-Profit Corporations Act, 2010 (“ONCA”) into force as early as possible, with a target of early 2020. This gives not-for-profit corporations at least 24 months’ notice before the ONCA comes into force. Further details will be provided by the Ministry of Government and Consumer Services closer to when the ONCA comes into force. Following proclamation, Ontario not-for-profit corporations will have three years to transition to the ONCA to make the necessary changes to their governing documents.
Additional Changes to OCA in Force on January 13, 2018
A number of changes to the Ontario Corporations Act (“OCA”) became effective on January 13, 2018, by way of Bill 154. Other changes to the OCA already became effective on November 14, 2017. These changes were introduced to allow Ontario Part III OCA not-for-profit corporations to enjoy some of the modernized rules contained in the ONCA before it is proclaimed, and to provide more flexibility to their operations. These changes are discussed in greater detail in Charity & NFP Law Bulletin No. 412.
Corporate Documents Available for Purchase from Corporations Canada
On December 12, 2017, Corporations Canada announced that uncertified copies of corporate documents filed under the Canada Business Corporations Act or the CNCA are now available for purchase from their Online Filing Centre. Uncertified corporate documents can be ordered by email, mail or fax, and cost $1.00 per page. Orders are processed within one business day.
Amendments to Ontario Workplace Safety Legislation in Force
Jan 2018 Charity & NFP Law Update
On December 14, 2017, Ontario’s omnibus Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017 (“Bill 177”) received Royal Assent, implementing certain measures outlined in Ontario’s 2017 Budget, as well as enacting and amending other Ontario statutes. Among these amendments are changes to Ontario’s Occupational Health and Safety Act (“OHSA”) contained under Schedule 30 of Bill 177. These amendments are intended to enhance protections for workers, including those employed by charities and not-for-profits in Ontario.
These amendments include changes to the OHSA’s sentencing regime by increasing maximum fine limits from $25,000 for individuals and $500,000 for corporations to $100,000 and $1,500,000 respectively. Individuals convicted of an offence under the OHSA may also be subject to up to 12 months imprisonment. Where the OHSA previously required charges to be laid within one year of an incident, the time limit to allow for prosecution has been changed from one year from the date of the offence to one year from the date an inspector becomes aware of an alleged offence, allowing for charges to be laid more than a year after the occurrence of an incident. Additionally, as a result of Bill 177, employers that do not own their workplace are now required to notify an inspector appointed as a Director under the OHSA where a committee or health and safety representative has identified potential structural inadequacies of a building, structure, or any other part of a workplace, as a source of danger or hazard to workers.
Charities and not-for-profits need to continue to be aware of their health and safety obligations to workers under the OHSA, particularly given the large increase to the maximum fines that are now in force.
New Guide Published on Fundraising under Australian Consumer Law
Jan 2018 Charity & NFP Law Update>
The Australian Competition & Consumer Commission published A guide to the Australian Consumer Law (the “Guide”) on December 18, 2017. The Guide outlines general principles and provides examples to assist charities and fundraisers with understanding their obligations under the Australian Consumer Law (“ACL”), which is set out under Schedule 2 of the Competition and Consumer Act 2010. The ACL outlines obligations concerning unfair practices, consumer transactions, product safety, and product-related services, and applies to charities, not-for-profits, and fundraisers in Australia in certain circumstances.
In general, the ACL applies only to activities that are in “trade or commerce”. The Guide indicates that since fundraising activities may occur in trade or commerce, those who engage in fundraising activities may have obligations under the ACL. It further clarifies that a fundraising activity that is in trade or commerce includes fundraising activities involving supplies of goods or services, fundraising by a for-profit professional fundraiser, and “fundraising in an organized, continuous and repetitive way.”
Where a fundraising activity is in trade or commerce, or where goods or service are supplied as part of a fundraising activity, the fundraiser must not engage in misleading or deceptive conduct in relation to either the fundraising activity or the goods and services supplied, regardless of whether there is intention to mislead or deceive. Similarly, unconscionable conduct is prohibited under the ACL. The Guide explains that unconscionable conduct “includes trading practices that are harsh or oppressive and go against good conscience”, as conscience is judged by the norms of society. Further, it states that conduct may also be unconscionable “where one party knowingly exploits the special disadvantage of another.” The Guide also explains that there are further obligations to comply with where fundraising activities specifically involve the supply, or promotion of the supply of a good or service, and outlines these obligations.
While the Guide applies only to Australian charities, not-for-profits and fundraisers, its general principles and examples with regard to consumer protection may be of interest to those in the Canadian charitable sector and, despite having no legal application in Canada, is helpful in terms of providing guidelines for “best practices.”