by Dev User | Jan 31, 2018 | Uncategorized
Jan 2018 Charity & NFP Law Update
On October 31, 2017, the Federal Court released its decision in 907687 Ontario Inc. (International Institute of Travel) v 1472359 Ontario Ltd (IBT College of Business Travel & Tourism Technology). In this case, International Institute of Travel (“IIT”), a private career college, alleged that IBT College of Business Travel & Tourism Technology (“IBT”), another private career college, had improperly used its course material. As a result, on January 15, 2013, IIT commenced a copyright infringement action against IBT.
Although the Federal Court held that IIT had not met its burden of proving that IBT had infringed its copyright, the court held that the infringement action was time-barred as it was not commenced within the three year limitation period provided for in the Copyright Act. In this regard, s. 43.1(1) of the Copyright Act provides that a copyright infringement action must be commenced within three years. However, there are subtle important nuances to when this three year period begins. If the copyright owner knew or could reasonably have been expected to know of the infringement, then the three year limitation period begins from the time at which the copyright owner knew or was reasonably expected to have known of the infringement. On the other hand, in situations where the copyright owner did not know and could not be reasonably expected to know, then the three year limitation period begins at the time when the copyright owner first knew or could have been reasonably expected to know of the infringement.
In this case, the court held that although IIT did not have actual knowledge of the alleged infringement until 2011, a demand letter sent by IIT’s legal counsel to IBT in 2002 established that the infringement was discoverable with reasonable diligence in 2002, and as a result, the action was statute-barred.
Charities and not-for-profits should beware that where a limitations defence in a copyright infringement action is raised, the copyright owner is required to prove that the three year limitation period has not lapsed. Charities and not-for-profits must therefore take reasonable steps to determine if copyright is being infringed and be vigilant in policing unlawful use of their copyright to ensure a copyright infringement action is not time-barred. Further, a demand or cease and desist letter sent can be deemed by courts as evidence that an infringement was known by the copyright owner and would therefore mark the beginning of the three year period, unless there is evidence that the copyright owner had earlier knowledge of the infringement. As such, charities and not-for-profits that know of or even suspect copyright infringement should act immediately to enforce their rights before the limitation period expires.
Read the January 2018 Charity & NFP Law Update
by Dev User | Jan 31, 2018 | Uncategorized
Jan 2018 Charity & NFP Law Update
On December 13, 2017, the Standing Committee on Industry, Science and Technology (the “Committee”) presented its report “Canada’s Anti-Spam Legislation: Clarifications are in Order” (the “Report”). The Committee conducted a statutory review of Canada’s anti-spam legislation (“CASL”) between September 26, 2017 and December 12, 2017, the results of which are set out in the Report.
Of note to charities and not-for-profits, recommendation 8 in the Report states that:
The Committee recommends that the Government of Canada clarify the application of the Act and its regulations to charities and non-profit organizations to ensure that the legislation is clear and understandable to these organizations and do no create unintended costs of compliance.
The Committee heard various witnesses from the not-for-profit sector, including Imagine Canada, which was summarized in the November/December 2017 Charity & NFP Law Update. The recommendation in the Report does not go as far as some witnesses proposed to the Committee in exempting registered charities from the requirements of CASL, or creating broader exceptions for other not-for-profits. However, it is hoped that the government will review CASL and its general application to the not-for-profit sector.
The Report also includes recommendations with general application which would also be of interest to charities and not-for-profits that might be involved in sending commercial electronic message (“CEMs”). These include a recommendation that the government clarify the definition of CEM, “electronic address” as well as the provisions pertaining to “implied consent” and “express consent” under CASL. The Report demonstrates that several years after CASL coming into force, its application is far from clear. The Committee’s conclusion recognizes this fact by stating, “While improving guidance and education should be a priority moving forward, it can only achieve so much. The Act [CASL] and its regulations require clarifications to reduce the cost of compliance and better focus enforcement.”
Read the January 2018 Charity & NFP Law Update
by Dev User | Nov 30, 2017 | Uncategorized
Nov 2017 Charity & NFP Law Update
As anticipated in Charity & NFP Law Bulletin No. 405, the Ontario Government has moved swiftly to pass Bill 148, Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”), which received Royal Assent on November 27, 2017. The final version of Bill 148 contains several changes to what was first introduced on June 1, 2017, including a new Schedule 3 amending the Occupational Health and Safety Act, and other amendments to the Labour Relations Act, 1995. However, the focus of this Bulletin is on the amendments to the Employment Standards Act, 2000 (“ESA”), including changes to the minimum wage, paid vacation entitlements, job protected leaves of absence, scheduling rules and the treatment of independent contractors, as the most relevant to charities and not-for-profits in Ontario. With the significant changes made to Bill 148 since Charity & NFP Law Bulletin No. 405 was posted in June 2017, this Bulletin provides an update to Bill 148 now that is has received Royal Assent.
For the balance of this Bulletin, please see Charity & NFP Law Bulletin No. 411.
Read the November 2017 Charity & NFP Law Update
by Dev User | Nov 30, 2017 | Uncategorized
Nov 2017 Charity & NFP Law Update
The 24th Annual Church & Charity Law™ Seminar hosted by Carters Professional Corporation in Mississauga, Ontario, on November 9, 2017, had more than 1,000 registered from the charitable and not-for-profit sector, including leaders of charities and churches, as well as accountants and lawyers. Designed to assist churches and charities in understanding developing trends in the law in order to reduce unnecessary exposure to legal liability, the Church & Charity Law™ Seminar has been held annually since 1994. All handouts and presentation materials are now available at the links below in the order as presented, with the web links being Power Point slide shows.
- Introduction, Agenda and Speaker Details
- Essential Charity & NFP Law Update presented by Jacqueline M. Demczur, B.A., LL.B.
- Direction and Control: What It is and How to Comply presented by Theresa L.M. Man, B.Sc., M.Mus., LL.B., LL.M.
- Critical Privacy Issues Involving Children’s Programs presented by Esther Shainblum, B.A., LL.B., LL.M., CRM
- Remuneration of Directors of Charities: What’s New? presented by Ryan M. Prendergast, B.A., LL.B.
- Changes and Developments in Employment Law presented by Barry W. Kwasniewski, B.B.A., LL.B.
- Governance Disputes Involving Charities and Not-for-Profits: The View from the Bench presented by The Honourable Justice David M. Brown
- Corporate Documents and Procedures to Help Avoid Governance Disputes presented by Esther S.J. Oh, B.A., LL.B.
- The Investment Spectrum for Churches & Charities presented by Terrance S. Carter, B.A., LL.B.
- Challenges in Regulating the Charitable Sector: Looking Back and Going Forward presented by Tony Manconi, B.A., Director General of the Charities Directorate with the Canada Revenue Agency Agency
Read the November 2017 Charity & NFP Law Update
