1. WELCOME
Welcome to the 1999 Annual Church & the Law Seminar, a practical seminar for churches and
religious charities. This is the sixth year that the Annual Church & the Law Seminar has been held. This
year's seminar is designed to provide an understanding of current legal issues that are relevant to churches and
religious charities to better equip them to avoid legal problems before they occur, as well as to explain how recent
legal developments can impact churches and religious charities in their day to day operations.
The seminar is hosted by Wardlaw, Mullin, Carter & Thwaites, a law firm with experience in advising
churches and religious charities. The seminar is intended to provide a practical discussion of legal issues, and
as such, a time to answer questions that may not have been addressed during the presentations will be set aside
at the end of the day.
If you have registered, please obtain your name tags in the upstairs lobby. If you have not registered,
then please complete a registration form and leave it at the registration table in the upstairs lobby together with
a cheque for the $10.00 registration fee payable to Wardlaw, Mullin, Carter & Thwaites to help partially cover
the cost of the facilities, coffee, muffins, and photocopies. If you have registered, but not paid your registration
fee, please leave a check for $10.00 payable to the firm at the registration table in the upstairs lobby.
While complimentary coffee is provided throughout the day and muffins in the morning, lunch is on your
own. Caterers will have assorted sandwiches, vegetables and dip, pickles, assorted cookies, fresh fruit, coffee,
tea and juice at a cost of $6.00 (taxes included) for those who wish to stay at the church during the lunch period.
Lunch tickets can be purchased near the registration table before the presentation begins, during the morning
coffee break or at noon. Given the short lunch period, of 45 minutes, you are encouraged to buy your lunch
tickets before the lunch break.
Numerous articles, seminar materials, and newsletters of interest to Churches and religious charities,
including back issues of Church & the Law Update and Charity & the Law Update are available at our web site
at www.wardlaw.on.ca.
We wish to gratefully acknowledge and thank the pastors, leadership, and congregation of Bramalea
Baptist Church for the generous use of their facilities. The Church has requested that food and beverages be
consumed only on the lower level and not in the sanctuary or lobby area.
We would like to also acknowledge the contributions from Carl Juneau, Professor Margaret Ogilvie,
Wolfe Goodman, Jill McAlpine and Terence Sellen as guest speakers at this year's seminar. All speakers have
given of their time free of charge.
8:00 a.m. Registration, Coffee and Muffins
8:45 a.m. Opening Remarks and Prayer
8:50 a.m. -Update on Recent Legal Developments
Affecting Churches and Charities Patricia L. Sproule Ward
9:20 a.m. -New Directions in the Definition of Charities
including Supreme Court of Canada Decision Wolfe D. Goodman
9:45 a.m. -Morality Issues for Christian Charities -
Where do the Courts Stand? David Thwaites
10:15 a.m. -Charitable Giving Techniques for Religious Charities Jill McAlpine
10:45 a.m. Information on Forum for Religious Charities Bonnie Green
10:50 a.m. Morning Coffee Break (15 minutes)
11:05 a.m. -National and International Charitable Structure:
Achieving Protection and Control Terrance S. Carter
11:35 a.m. -Who Do You Say That You Are? -
Courts, Creeds and Christian Identity Margaret Ogilvie
12:20 p.m. Lunch (on your own)
1:05 p.m. -Christian Mediation - Peacemakers in the Church Terence Sellen
1:35 p.m. -The Y2K Crisis: Practical Steps to Avoid Legal Liability Terrance Carter
2:05 p.m. -Identifying and Avoiding Legal Issues and
Liability on the Internet Mervyn White
2:35 p.m. -Is The Sky Really Falling? - Revenue Canada's Position
on Donor Benefits and Christian Charities Carl Juneau
3:15 p.m. Program Formally Ends
3:15 p.m. Questions and Answers for those who wish to remain
TERRANCE S. CARTER
Mr. Carter practices primarily in the area of charities, not-for-profit organizations, trade-marks and gift
planning, with particular experience involving religious organizations. He is a partner with the firm of
Wardlaw, Mullin, Carter & Thwaites in Orangeville, Ontario and is a registered Trade-Mark Agent. He
obtained a BA(Jt. Hon.) from McGill University and his LL.B. from Osgoode Hall Law School in Toronto.
Mr. Carter is chair of the Charity and Not-For-Profit Law Section of the Canadian Bar Association (Ontario).
He has written numerous articles for various journals and publications and is a frequent speaker at seminars
on legal issues involving charities and not-for-profit organizations in numerous cities across Canada. Mr.
Carter is the editor of and a contributor to Charity & the Law Update, distributed across Canada by The
Canadian Centre for Philanthropy, and Church & the Law Update, and is Chair of the Church & the Law
Seminar held each year for religious charities. He has also participated in consultations with the Charities
Division of Revenue Canada and the Public Guardian and Trustee of Ontario.
WOLFE D. GOODMAN, Q.C.
Mr. Goodman was born and educated in Toronto. He graduated in Commerce and Finance from the University
of Toronto in 1946 and from Osgoode Hall Law School in 1949. He is a senior partner in Goodman and Carr
in Toronto specializing in Taxation and Estate Planning. He was on sabbatical in 1975-1976 to pursue his
graduate studies leading to a degree of Doctor of Juridical Science, 1976, and publication of "International Double
Taxation of Estates and Inheritances", 1978. He was the Governor of the Canadian Tax Foundation in 1973 to
1975 and he was appointed by the Minister of Finance as Chairman of Federal Sales Tax Review Committee in
1983. He has lectured in the Faculty of Law at the University of Toronto on Accounting in Law in 1961-1969
and on Estate Planning in 1969-1964. General Editor of "Goodman on Estate Planning", published by Federal
Press, Montreal. He has also written extensively on taxation and estate planning for over 40 years, with articles
published in various tax and estate planning journals and accounting magazines and a frequent speaker on these
topics. He is a member of the Canadian Bar Association, the International Bar Association, the Canadian Tax
Foundation, the International Fiscal Association, the International Academy of Estate and Trust Law and the
American Academy of Estate and Trust Counsel.
CARL JUNEAU
Mr. Juneau is a member of the Bar Association of the Province of Quebec since 1980. He has been with the
Charities Division at Revenue Canada since 1983, and since 1986, he has been Assistant Director of the Charities
Division in charge of Technical Interpretations. As such, he is directly involved in policy formulation in
amendments to the Canadian Income Tax Act as it relates to charities and in substantive decisions relating to the
registration or revocation of charities under the Act. Mr. Juneau participates extensively at charities conferences,
internationally and throughout Canada, both to explain and to consult on Revenue Canada's role as it relates to
charities. Notably, he has spoken at conferences in India, South Africa, Australia and Estonia, on issues of
charity and taxation, as well as at Seminars for the Law Society of Upper Canada and the Canadian Bar
Association.
JILL H. McALPINE, C.A.
Ms. McAlpine is a chartered accountant with PricewaterhouseCoopers in North York, and has extensive
experience in devising and implementing creative gifting plans. She also advises charities and other not-for-profit
organizations on a wide range of organizational and operational issues. She also makes frequent presentations
at major charities conferences (eg, the Canadian Association of Gift Planners, the National Society for Fund-Raising Executives, the Association for Health Care Philanthropy, the Ontario Hospital Association, and the
Community Foundations of Canada, among others). She is currently a member of the Board of Directors of the
Toronto Community Foundation and Community Foundation of Canada; a member of the Professional Advisory
Councils of the North York General Hospital Foundation and the Canadian Diabetes Association; and is a
consultant to PricewaterhouseCoopers.
PROFESSOR MARGARET OGILVIE
M.H. Ogilvie is a Professor of Law at Carleton University in Ottawa. She is a graduate of Trinity College,
University of Toronto (B.A.), Dalhousie University (LL.B.) and the University of Oxford (M.A., D. Phil.) and
a member of the Bars of Ontario and Nova Scotia. She has been a visiting Professor at the Universities of
Edinburgh, Oxford and Toronto and is the author of 10 books, including Religious Institutions and the Law in
Canada (Carswell, 1996), and the editor of two student course texts, as well as over 200 articles, comments and
reviews in various Canadian and international law journals. Dr. Ogilvie is currently a member of the editorial
boards of four law journals, including the Journal of the Church Law Association, and has given expert legal
advice to a variety of churches and their legal counsel on a wide range of legal issues. She was elected a Fellow
of the Royal Society of Canada in 1993; awarded the David W. Mundell Medal in 1996 for distinguished
contributions to law and literature; and awarded the degree of Doctor of Divinity (honoris causa) by The
Presbyterian College, Montreal in 1998. She is a member of Knox Presbyterian Church, Ottawa.
TERENCE SELLEN
Mr. Sellen is the Executive Director of Christian Legal Fellowship. He is a graduate of the University of
Manitoba Law School. He also has diplomas in Comparative Law from Laval University in Quebec as well as
the University of Ottawa. He is active in Christian Ministry with the Fellowship of Christian Assemblies, he has
also enjoyed working with the legal profession through the EduLaw Professional Development Program. He has
also been doing workshops and seminars on church peacemaking from Nova Scotia to British Columbia since
1995. He may be contacted at: Christian Legal Fellowship, Box 1, Group 14, Oakbank, MB Canada, R0E 1J1,
Phone: (204) 228-3445, Fax: (204) 444-2202 or (800) 442-8850.
DAVID G. THWAITES
Mr. Thwaites has been a lawyer since 1981 in Ontario practicing in partnership at Wardlaw, Mullin, Carter &
Thwaites in Orangeville, Ontario. He obtained his LL.B. in 1979 at The University of Western in London,
Ontario. His practice is as a litigation lawyer providing counsel in the areas of insurance law, employment law,
Church discipline, and family law. He has provided counsel to numerous Church and para-Church organizations
and to individuals in the Christian marketplace. He is counsel to The Children's Aid Society of the County of
Dufferin. He has lectured at numerous seminars sponsored by the Law Society of Upper Canada, the Canadian
Bar Association and The Canadian Council of Christian Charities and contributed articles to the Church and the
Law Update regularly on topics including Church Liability, Employment Law and Human Rights. He is a
member of the Canadian Bar Association (Ontario) Council and The Christian Legal Fellowship.
PATRICIA L. SPROULE WARD
Mrs. Ward is a partner with the law firm of Wardlaw, Mullin, Carter & Thwaites, Orangeville, Ontario. Mrs.
Ward received her B.B.A. (Honours) at Wilfrid Laurier University (1983), her LL.B. at the University of Windsor
(1986), and was called to the Bar in 1988 when she joined Wardlaw, Mullin, Carter & Thwaites. During her
practice, Mrs. Ward has concentrated in the areas of wills, powers of attorney, estates, charities municipal law
and real estate,. She is associate Counsel for the Children's Aid Society of the County of Dufferin and associate
counsel for a number of municipalities. She has acted on behalf of various Churches and other charities. Mrs.
Ward has been an annual speaker at the Church and the Law Seminar as well as a contributor for seminars
provided for clients and community groups. She has also written for Municipal World Magazine and most
recently taught the Real Estate Course for the Institute of Law Clerks through Georgian College.
MERVYN F. WHITE
Mr. White is a lawyer with the law firm of Wardlaw, Mullin, Carter & Thwaites in Orangeville, Ontario. Mr.
White received his Bachelor of Arts (Honours) at Guelph University and his Bachelor of Law at York University,
Osgoode Hall, and was called to the Bar in February of 1995. Since commencing practice, Mr. White has gained
experience in a number of areas of law, including civil and criminal litigation, as well as corporate/commercial
law. Mr. White also practices in the field of intellectual property law, having a special interest in both trade-mark
and copyright law, as well as in internet related matters.
Questions are encouraged and will be answered at the end of the day for those who would like to remain. A question sheet is contained at the back of this handout and should be left at the front lectern in the auditorium.
To effectively use the information presented at the Seminar today, it is suggested that the following risk
management approach be taken in relation to the legal issues that will be presented:
1. Become familiar with the relevant law concerning an issue
2. Apply that knowledge of the law to a particular fact situation to determine if a risk exists that requires steps be taken
3. Report back to the church or charity on the issue to be addressed
4. Become pro-active in reducing the risk before it becomes a problem
5. Monitor progress in addressing the issue to ensure that it is dealt with
6. Keep abreast of changes in the law
235 Broadway, P.O. Box 67
Orangeville, Ontario, L9W 2Z5
Telephone (519) 941-1760
Fax (519) 941-3688
E-Mail tcarter@wardlaw.on.ca
A firm experienced in dealing with church and charity related legal issues directed at avoiding problems
before they occur through effective legal risk management, including assistance with:
Church Constitutions
and Incorporation
Charitable Foundations
Legal Risk Management
Denominational Issues
Gift Planning
National and
International Structures
Church Discipline
Sexual Abuse Policies
Copyright and Licencing
Charitable Registrations
Employment Issues
Litigation Counsel
Trade-Mark Protection
Insurance Issues
Church Development
Domain Name Issues
The material contained in the seminar is provided for information purposes on the understanding
that neither the firm of Wardlaw, Mullin, Carter & Thwaites nor any of the lawyers or professionals
involved in the seminar are rendering legal advice or establishing a solicitor/client relationship. None of
the information provided in this seminar should be relied upon for legal decision making without first
consulting with your legal counsel and obtaining a written opinion concerning the specifics of a particular
situation.
handout.99
1999 ANNUAL CHURCH & THE LAW SEMINAR
A. LEGISLATIVE UPDATE
1. ESTATE ADMINISTRATION TAX ACT, 1998 (Ontario)
Bill introduced in November 1998 and has had first reading
Levies an Estate Tax against every estate that required or requires either Letters Probate or A
Certificate of Appointment as Estate Trustee from May 14th, 1950
Estate Tax is equivalent to the probate fees assessed
Provincial response to the Supreme Court of Canada decision in the case of The Estate of Donald
Valentine Eurig which stated that probate fees charged by the Province were unconstitutional
Unlikely that any refunds of probate fees already paid will be issued
2. SMALL BUSINESS AND CHARITY'S PROTECTION ACT (Ontario)
Allows landlords who rent commercial or industrial property pursuant to gross leases to pass on
part of the real property taxes as additional rent
Need to meet specific requirements, including proper Notice, in order to collect the additional rent
or to have to pay the additional rent
Notice of intent to charge this additional rent must have been given prior to December 15th, 1998
Cap on amount of tax that can be passed on as Landlord's may qualify for a rebate of a portion of
the realty taxes
3. LOBBYISTS REGISTRATION ACT, 1998 (Ontario)
Came into effect on January 15th, 1999
Requires all persons who meet definition of lobbyist to register themselves and their activities with
the Lobbyists Registration Office
Three categories of lobbyists
- Consultant Lobbyists paid to lobby on half of a client, includes professionals who provide lobbying services for their clients
- In-house Lobbyists employed by persons, corporations and partnerships that carry on commercial activities for financial gain
- In-house Lobbyists employed by non-commercial organizations such as advocacy groups
and industry, professional and charitable organizations
Defines lobbying to occur when a paid lobbyist communicates with a public office holder in an
attempt to influence
- development of any legislative proposal by a Member of the Legislative Assembly;
- introduction, passage, defeat or amendment of any bill or resolution;
- the making or amendment of any regulation;
- the development, amendment or termination of any policy or program;
- any decision about privatization or outsourcing;
- awarding of grants or financial benefits by or on behalf of the Crown (consultant lobbyists only); and
- the arrangement of meetings between a public office holder and any other person
(consultant lobbyists only).
Fines of up to $25,000.00 may be imposed for failure to comply with terms of the Act
4. TRUSTEE ACT (Ontario)
Bill 25 amending the Trustee Act (Ontario) received third reading November 30th, 1998.
- Bill 25 will be proclaimed in force on a day to be announced, the reform not yet law
- Bill 25 will replace the current statutory list of permitted investments (ie G.I.C's) with a "prudent investor rule"
- investments in mutual funds will be permitted but only after Bill 25 is proclaimed
- Bill 25 will place a more onerous responsibility for investments on directors
- There will be no relief available for technical breaches of trust as is presently the case
See attached Church & the Law Update Volume II, Number 2 for a more complete discussion of
investment powers for Trustees.
5. CANADA CORPORATIONS ACT (Federal) - Changes to Federal Non Profit Corporate Law Policy
Industry Canada amended its administrative policy for non-share capital corporations under Part
II of the Canada Corporations Act in April, 1998.
Amendments will include making it easier to hold telephone conference calls for board and
member meetings
It is important to review and update general operating by-laws for all charities that have been
incorporated federally and the Canada Corporations Act
B. CASELAW UPDATE
1. HUMAN LIFE INTERNATIONAL IN CANADA INC. V. M.N.R., Federal Court of Appeal, Docket A-288-94, Judgement dated March 18, 1998, leave to appeal to Supreme Court of Canada, denied January 21st, 1999
According to the Ministry of Revenue, this registered charity was primarily involved in promoting
its own views on many issues including, abortion, sex education in schools and universal day care
Ministry of National Revenue issued a notice of intent to de-register the organization as a charity
because it felt that its activities were mostly political and not charitable in that they were attempting
to affect public opinion with respect to a number of "social" issues
Court of Appeal deemed the organizations activities to be substantially political. This was
appealed to the Supreme Court of Canada which dismissed the appeal.
Confirms that not only must objects be charitable but the also the activities carried out to attain
those objects must also, substantially, be considered charitable
2. VANCOUVER SOCIETY OF IMMIGRANT AND VISIBLE MINORITY WOMEN v. M.N.R. [1996] No. 290, [1999] S.C.C. File #25359
Case was head by the Supreme Court of Canada in February, 1998, and a decision was rendered
on January 29th, 1999
The Appellant lost the appeal to become a registered charity by a four\three split of the Supreme
Court but the Court broadened the scope of "advancement of education" as a head of charity
The decision emphasises the importance of lawyers' carefully drafting the charitable objects clause
of a charity
3. ALLIANCE FOR LIFE
Received Notice of Intent to de-register based on perception that the non-charitable organization
named "Alliance Non-Profit Pro-Life Action Inc." which carried out the political activities was an
integral part of the charitable operations of Alliance for Life
Originally this arrangement was approved but concern that the two organizations are too closely
related
Waiting for the decision of the Federal Court of Appeal
4. CHRISTIAN BROTHERS OF IRELAND IN CANADA (Re), (1998), 37 O.R. (3d) 367, 21 E.T.R.
(2d) 93 (Gen.Div.)
Important decision of the Ontario Court (General Division) dealing with what assets of the charity
can be used to satisfy judgements against it
Court looked at definition of what constituted a donor-restricted trust fund which would then place
the asset out of reach of creditors
Determined that for a true donor-restricted gift certain formalities must be complied
Public appeals for funds for a particular purpose are not considered to be a donor-restricted fund
and therefore could be available to satisfy creditors
See an article by T. Carter on Donor Restricted Charitable Gifts: A Practical Overview @ www.wardlaw.on.ca for a more complete analysis of the consequences of the Christian Brothers decision.
DISCLAIMER: This Legislative & Caselaw Developments That Effect Churches and Charities is distributed with the
understanding that it does not constitute legal advice or establish the solicitor/client relationship by way of any information
contained herein. The contents are intended for general information purposes only and under no circumstances can be relied upon
for legal decision making without first consulting with a lawyer and obtaining a written opinion concerning the specifics of your
particular situation.
Wardlaw, Mullin, Carter & Thwaites
Barristers, Solicitors & Trade-Mark Agents
"Established in 1896"
235 Broadway, P.O. Box 67
Orangeville, Ontario, L9W 2Z5
Telephone:(519) 941-1760, Fax:(519) 941-3688
E-Mail - psprouleward@wardlaw.on.ca
Web - www.wardlaw.on.ca
tsc/seminar/chu&law99/trish
1999 ANNUAL CHURCH & THE LAW SEMINAR
Morality Issues For Christians -
Where do the Courts Stand?
A. INTRODUCTION
B. THE COURTS - FREEDOM, RIGHTS AND MORALITY
"It is not every evil which attracts Court action; some evils remain for the legislature to
correct"
Madam Justice McLauchlin, Winnipeg Family Services vs. G.(D.F.) (S.C.C.)
C. RIGHT TO LIFE - WHEN DO "RIGHTS" COMMENCE?
Tremblay v. Daigle (1989): foetus is not a legal person
Winnipeg Family Services v. G.(D.F.) (1998):
- law does not recognize an unborn child as a legal person
- the rights or interest of the unborn remain inchoate and incomplete until birth
- it is for the legislature, not the Courts, to change the law when the revision is major and the ramifications are complex
- the Courts have determined only the legal status not the biological or spiritual status of
the unborn
Dobson v. Dobson (1997) (S.C.C. decision pending)
- a child may sue parents for pre-natal injuries resulting from a motor vehicle accident
Morgantaler v. R (1988)
- protection of the foetus is a perfectly valid legislature objective recognizing that it is a
potential life from the moment of conception
D. RIGHT TO DIE - When Does One Have the Right to Make that Choice?
Rodriquez v. British Columbia (Attorney General) (1993)
- it is a criminal offence for a person to assist suicide
- human life is sacred and inviolable
- sanctity of life excludes freedom of choice in the self-infliction of death
- the purpose of state policy is to protect the vulnerable and not to depreciate life
- to participate in the ending of a life is intrinsically morally and legally wrong
Regina v. Latimer (1998) (on appeal to Supreme Court of Canada)
- state has obligation to protect the vulnerable
- surrogate decision-makers do not have the authority to make life and death decisions
Sawatzky v. Riverview Health Centre (1998)
- "do not resuscitate" order
- Doctor does not have the right to make decisions based on 'no benefit to continue life' of a patient
E. RIGHT TO DISCRIMINATE
1. DOES RELIGIOUS BELIEF AFFORD THE ABILITY TO DISCRIMINATE?
Ontario Human Rights Code
- prohibits discrimination based upon various grounds including "creed", "sexual orientation" and "marital status"
- exception, s. 24 Code in area of employment if nature of employment tied to religious belief
- intent to discriminate not relevant
2. WHAT PLACE DOES 'RELIGION' HAVE IN THE PUBLIC EDUCATIONAL
SYSTEM?
Zylberberg v. Sudbury Board of Education (1988) (Ont. C.A.)
- religious exercises infringed freedom of religion
- there are alternative ways to impart educational and moral values
Can. Civil Liberties and Minister of Education (1990) (Ont. C.A.)
- religious education amounted to indoctrination and infringed freedom of religion
Chamberlain v. Surrey School Board (1998)(BCSC) (appeal pending)
- the School Board is to decide educational issues on secular principles only, exclusive of
any value consideration if professed by persons with religious belief
3. DO THE RELIGIOUS BELIEFS OF A "SCHOOL" MEAN STUDENTS WILL
DISCRIMINATE?
Trinity Western Univ. v. B.C. College of Teachers (1998) BCCA.
- no evidence presented by College of Teachers of discrimination
- freedom of expression
- freedom of religion
F. FREEDOM OF EXPRESSION
Freedom of expression and the contemporary community standard of tolerance
- Regina v. Langar (1995) (child pornography)
- Region v. Sharpe (1999) (child pornography)
- Mara and East v. Regina (1997) (indecency)
- Regina v. Jacob (1996) (indecency)
In the context of advocating pro-life or anti-homosexuality?
G. CONCLUSION
Be informed
Be pro-active not reactive
Be supportive
DISCLAIMER: This summary of Web Site Issues: Morality Issues for Christians - Where do the Courts Stand is
distributed with the understanding that it does not constitute legal advice or establishing the solicitor/client relationship
by way of any information contained herein. The contents are intended for general information purposes only and
under no circumstances can be relied upon for legal decision making without first consulting with a lawyer and
obtaining a written opinion concerning the specifics of your particular situation.
1999 ANNUAL CHURCH & THE LAW SEMINAR
National and International Charitable Structures:
Achieving Protection and Control
Wednesday, February 3rd, 1999
Terrance S. Carter, B.A., LL.B.
A. INTRODUCTORY COMMENTS
Charities seldom give sufficient attention to organizational structural issues, particularly as they relate to national or international structures
There is frequently a difference between how the charity actually operates and the legal organizational documentation for the charity
This dichotomy can eventually result in potential confusion and possibly even litigation
Avoiding exposure to liability and maintaining effective control over the goodwill of a charity are dependent upon putting an effective organizational structure in place that reflects how the charity operates
All Charities should review their organizational structure on a regular basis
Charities that operate on a national or international basis particularly need to evaluate the effectiveness of their organizational structure to protect their assets and maintain control over member organizations
Structural issues are relevant for any charity that is a part of a larger organization
See www.wardlaw.on.ca for more details on this topic in a paper entitled National and International
Charitable Structures: Achieving Protection and Control
B. THE NATURE OF A NOT-FOR-PROFIT CHARITABLE
CORPORATION AND THE NEED FOR CONTROL
1. THE RELEVANCY OF THE NOT-FOR-PROFIT CORPORATION
2. THE LACK OF EQUITY IN A NOT-FOR-PROFIT CORPORATION AND THE CORRESPONDING NEED FOR CONTROL
C. NATIONAL CHARITABLE STRUCTURES
1. THE NATURE OF A NATIONAL CHARITABLE ORGANIZATION
(a) The Basic Character
(b) The Distinction Between the National Chapter Model and the National Association Model
(i) The National Chapter Model (ie. a single charity with chapters)
(ii) The National Association Model (ie, many independent charities are associated with each other)
(c) Confusion Between the National Chapter Model and the National Association Model
(d) The Pros and Cons of the National Chapter Model
(i) The Pros of the National Chapter Model
(ii) The Cons of the National Chapter Model
(e) The Pros and Cons of the National Association Model
(i) The Pros of the National Association Model
(ii) The Cons of the National Association Model
(f) Comments Concerning Choice of Organizational Models
2. THE STRUCTURE OF THE NATIONAL ASSOCIATION MODEL
(a) Internal Structure of the National Governing Association
(i) Federal vs. Provincial Incorporation
(ii) Letters Patent Considerations
(iii) By-Law Considerations
(b) Control Considerations
(i) The Need for Control
(ii) Ex Officio Control Method
(iii) Franchise Control Model
(c) The Specifics of the Franchise Control Model
(i) An Association Agreement for Member Organizations would include the following terms:
(ii) Incorporating Documentation for Member Organizations
(iii) Trade-Mark Considerations
(iv) Copyright Considerations
(d) Decentralization Through Utilization of the National Association Model
(i) What is Meant by Decentralization?
(ii) Considerations Involving the process of Decentralization
(e) "Piercing the Corporate Veil" and Multi-Corporate Liability
3. THE STRUCTURE OF THE NATIONAL CHAPTER MODEL
(a) The Internal Structure
(i) Preliminary Considerations
(ii) Federal vs. Provincial Incorporation
(iii) Letter Patent Considerations
(iv) By-Law Considerations
(b) Establishing the Structure of a National Chapter Model
(i) Utilizing a Chapter/Charter Agreement
(ii) Licensing Considerations
(c) Liability Considerations Involving the National Association Model
(d) Utilization of a Parallel Foundation for the National Chapter Model
D. INTERNATIONAL CHARITABLE STRUCTURES
1. THE GENERAL NATURE OF AN INTERNATIONAL CHARITABLE ORGANIZATION
(a) The Challenge of Operating in Multiple Jurisdictions on an International basis
(b) The Dichotomy Between National and International Operations
(c) Funding Issues with Revenue Canada Involving the Transfer of Monies Outside of Canada
2. OPTIONS IN STRUCTURING AN INTERNATIONAL ORGANIZATION
(a) Multiple Association Model
(b) Subsidiary Model
(c) Separate International Organization Model
3. THE GENERAL STRUCTURE OF A SEPARATE INTERNATIONAL CORPORATION
(a) The Benefits of a Separate International Organization
(b) Where to Incorporate a Separate International Corporation
(c) Letters Patent Considerations
(d) By-Law Considerations
4. IMPLEMENTING EFFECTIVE INTERNATIONAL CONTROL PROVISIONS
(a) The Importance of Developing International Control Provisions
(b) Utilizing the Franchise Control Model
(c) The Specifics of the Franchise Control Model on an International Basis
(i) The International Association Agreement would include:
(ii) Incorporating Documents of the Domestic Charity would include:
(iii) Trade-Mark Licensing Considerations
(iv) Copyright Considerations
(v) Enforcing Control Provisions
5. LIABILITY ISSUES IN INTERNATIONAL OPERATIONS
(a) Exposure to Liability
(b) International Risk Management Considerations
DISCLAIMER: This National and International Charitable Structures: Achieving Protection and Control is distributed with the
understanding that it does not constitute legal advice or establish the solicitor/client relationship by way of any information
contained herein. The contents are intended for general information purposes only and under no circumstances can be relied upon
for legal decision making without first consulting with a lawyer and obtaining a written opinion concerning the specifics of your
particular situation.
Wardlaw, Mullin, Carter & Thwaites
Barristers, Solicitors & Trade-Mark Agents
235 Broadway, P.O. Box 67"Established in 1896"
Orangeville, Ontario, L9W 2Z5
Telephone:(519) 941-1760, Fax:(519) 941-3688
E-Mail - tcarter@wardlaw.on.ca
Web - www.wardlaw.on.ca
tsc/seminar/chu&law.99/national&international
1999 ANNUAL CHURCH & THE LAW SEMINAR
PEACEMAKERS IN THE CHURCH
Wednesday, February 3rd, 1999
Terence Sellen
Christian Legal Fellowship
Box 1, Group 14
Oakbank, Manitoba, R0E 1J1
E-Mail - direct@man.net
Telephone: (204) 228-3445 Fax: (800) 442-8850
Peacemaking is:
1. Foundational - a central part of the gospel
a. His position and title- functionality
b. Jesus' saving action towards us individually
c. Jesus' provision and charge socially
2. Preparatory -
a. For growth
b. For Spiritual warfare
c. For blessing
3. Universal -
a. The untroubled brother has responsibility for peacemaking Matt 18:15
b. Care for one another -in the fellowship of the Spirit.. looking to the interests of
others- Ph 2:1-4
Peace Making Questions :
1. Does lack of peacemaking have consequences?
a. Judgement
b. Ruin
2. How does the peace increase with no end?
a. Manufacturing
b. Preserving
3. What is peace making ?
a. Reasoning process
b. Pursuit or undertaking of the church
c. Mutual enterprise
. Are there techniques to dispute resolution?
a. Negotiation
i. Best answer for the church
ii. Not just for disputes but for any issues
. Mediation
i. Requires resources in the church
c. Arbitration
i. One wise man
d. Adjudication
i. Structure is required
5. Does any of this matter?
a. It is to our shame if there is not at least one wise man amongst us to deal with
disputes 1 Cor 6:1-5
b. Time and money are important to the church
6. What would I learn in a workshop?
a. The art and discipline of negotiation
i. Principles not positions
ii. Listening more than talking
iii. Disputes and issue identification
iv. Options and creativity
b. How to select and train mediation resources
i. Requirements
ii. Functions
iii. Helpful hints
1999 ANNUAL CHURCH & THE LAW SEMINAR
The Y2K Problem for Charities:
Avoiding Legal Liability
1. What are the Basic Y2K Issues?
2. How the Y2K Problem May Impact Charities?
3. The Broader Implications of the Y2K Problem for Charities
4. What is the Exposure to Legal Liability from Y2K?
5. Limitations on Legal Remedies Available for Y2K Problems
6. Reducing Exposure to Legal Liabilities
7. Web Resource Materials on Y2K issues
1. ADOPT A CAUTIOUS APPROACH
Like it or not, the Year 2000 ("Y2K") Problem or the "Millennium Bug" is difficult to ignore
Considerable litigation is speculated to result, but no one knows for sure whether Y2K is more "hype" than "crisis"
Due diligence requires that charities become aware of the issues and take appropriate precautions as necessary
Charities and churches cannot afford to simply do nothing
Do not panic but be aware and be prepared
2. WHAT IS THE Y2K PROBLEM OR "MILLENNIUM BUG"?
The Y2K Problem refers to the inability of computers, software and micro-processors to process date related information beyond December 31st, 1999
The Y2K Problem originates from using abbreviated date codes and allowing for only the last two digits of the year instead of all four
When the year changes from 1999 to 2000, technology using two digits will see a change from 99 to 00 and programs may misinterpret 00 as 1900 instead of 2000
The Y2K is also a leap year which many computer applications may fail to consider
If systems are not rendered capable of dealing with Y2K, they may crash or fail to correctly compute information
The U.S. Government estimates that its Y2K costs alone to be thirty billion ($30,000,000,000.00) (U.S.) to achieve compliance
3. WHAT DOES Y2K COMPLIANCE MEAN?
A single definition of Y2K Compliance does not exist
Compliance should include accurate and timely processing of date data using both single century and multi century formulas
Compliance should include years 1999, 2000 and leap year calculations and recognition
Compliance should include date and data communication and transfer capability
Compliance should include the absence of malfunctions, logical or mathematical inconsistencies,
or operational interruptions due to any data
C. HOW THE Y2K PROBLEM MAY IMPACT CHARITIES
1. COMPLIANCE DEFICIENCIES
Failure to maintain records for Revenue Canada under the Income Tax Act
Failure to maintain donor lists
Inability to produce charitable receipts to donors
Inability to maintain financial statements for audit purposes
Failure to maintain records of charitable trust funds
Failure to maintain investment records for surplus monies and charitable trust funds
Failure to maintain records involving international charitable activities through third parties, ie,
agents, co-joint venture participants, partners or international projects
2. HARDWARE DEFICIENCIES
Computers have internal clocks that record the time and date
Both older models and some newer model computers still record the years with two digits
Some computers can be corrected by a change to the basic input/output system (BIOS)
Some computers may be too old to be fixed and will need to be replaced
3. SOFTWARE DEFICIENCIES
Many computer software may not work properly after the Year 2000
Vendors should be contacted to see if the software program can be updated to correct Y2K deficiencies before the Year 2000
"Detonation method" of testing for Y2K compliance by setting the computers clock to January 1st, 2000 might result in software programs shutting down, software licenses expiring, and date reminders disappearing
Accounts payable/receivable and payroll software may not properly work
Records retention and retrieval system software may not properly work
4. DATA STORAGE DEFICIENCIES
Data storage using a two digit format will not work properly after the Year 2000
Software is generally available to update data handling programs but is not fool proof
5. TELECOMMUNICATION DEFICIENCIES
Telephone switching equipment and voice mail may not work properly after the Year 2000
6. ENVIRONMENTAL SYSTEM DEFICIENCIES
Vaults, security and safety systems, sprinkler systems, HVAC, lighting and elevators may not
properly function after the Year 2000
PROBLEM FOR CHARITIES
[Excerpted in part (with permission) and modified as necessary from the Canadian Bar
Association in "Countdown To 2000 - The Legal Issues"]
1. OPERATIONAL ISSUES FOR CHARITIES
Y2K compliance by third parties
- consider what steps should be taken to determine the Y2K compliance status of third parties, such as suppliers or other charities involved in joint projects
Y2K representations and commitment to third parties
- consider what Y2K representations and commitments, if any, should be provided to third parties or to donors about charitable activities
Disclosure obligations and financial statements
- consider what disclosure of Y2K compliance, if any, should be made in the financial statements of the charity
Insurance coverage
- consider the extent to which Y2K risks can be insured under an existing policy, if at all, and what steps should be taken to protect against or extend coverage
Risk management
- consider whether steps should be taken to appoint an appropriate Y2K project management team to address the risks
Staffing and personal
- consider the implications of the Y2K Problem on staffing and labour relations
Expert assistance
- consider whether to seek advice from outside consultants and advisors
Delegation of the Y2K duties
- consider to what extent the board of director's responsibility to deal with Y2K Problems can be delegated to a committee of the board or to outside advisors
Protection of privilege and confidentiality
- consider what steps should be taken to ensure that the confidentiality and privilege of Y2K information is preserved
- it may be advisable to use legal counsel to protect Y2K reports with a solicitor client privilege
2. CONTRACTUAL RIGHTS AND OBLIGATIONS
Who owns the affected software?
- consider whether the charity owns the software it uses or has licences for
Access to software source codes
- consider who can modify a source code for customized software
Is software warranted to be Y2K compliant?
- consider whether existing software licence agreement, maintenance support agreements and outsource agreements contain a warranty stating that the software is Y2K compliant or, if not, will be modified as necessary
Does the charity have contractual rights to modify software itself?
- for licensed software, consider whether the software license precludes modifications without the prior consent of the software vendor
Is software vendor offering assistance?
- consider whether the software vendor is offering assistance to make the software Y2K compliant and what warranties are being offered in this regard
Insurance contracts
- consider whether a charities insurance may cover the cost of determining a major Y2K Problem under an existing insurance policy
Protection of outstanding loans
- if the charity has loaned money then consider how it can protect its rights, and security if the
borrower is likely to face significant risks associated with Y2K
4. MAINTENANCE OF RELIABLE RECORDS FOR EVIDENTIARY PURPOSES
Will a Y2K Problem compromise the integrity of the records of a charity to an extent that it will render those records inadmissable in evidence in future litigation?
Charities should consider the extent to which an organization's inability to defend against or
prosecute civil claims may occur because of a lack of a reliable evidentiary source
E. WHAT IS THE EXPOSURE TO LEGAL LIABILITY FROM Y2K?
[Excerpted in part (with permission) and modified from the Canadian Bar Association in its
" Countdown To 2000-The Legal Issues"]
1. STATUTORY SOURCE OF LIABILITY
Consider the statutory requirements that may be breached by lack of Y2K compliance
Income Tax Act and electronic record keeping requirements
Income Tax Act and requirements in issuance of charitable donation receipts and records
Charities Accounting Act (Ontario) and maintenance of accounting records for charities in
Ontario
2. PRIVATE ORGANIZATIONAL LIABILITY
Consider whether charities are subject to organizational obligations and duties as members of a national or international association that may be impacted by Y2K non-compliance
ie, failure to produce regular financial statements and reporting requirements to a national or
international association
3. CONTRACTUAL LIABILITY
Consider what contractual obligations may be affected by Y2K Problems
- - i.e., direct or implied contracts to provide goods or services, technology, or equipment
Charities should identify the specific contracts and issues that may result in liability
4. INTELLECTUAL PROPERTY LIABILITY
Consider whether remedial action undertaken to achieve Y2K compliance may infringe, breach, contravene or misappropriate intellectual property rights of others
- ie, the Copyright Act will generally require the consent of software owners
5. CONFIDENTIALITY LIABILITY
Consider whether technology and software data that is subject to confidentiality obligations will be impacted by Y2K Problems or Y2K Corrections
Consider whether the disclosure of, or failure to adequately protect information constitutes a
breach of privacy rights, ie, failure to protect donor lists
6. DIRECTOR AND OFFICER'S LIABILITY
Directors and officers may be exposed to personal liability for failure to exercise due diligence in undertaking remedial steps to avoid Y2K Problems
Directors and officers may be accountable to their corporate members, Revenue Canada, and to the Public Guardian and Trustee of Ontario for breach of fiduciary duties of directors in their roles as "quasi trustees"
Directors and officers may be exposed to breach of trust for improper investment of charitable
funds if the income or the investment is lost through Y2K Problems
7. TORT LIABILITY (ie, Civil Wrongs)
Negligence claims may result from damages caused by Y2K problems, ie, damages that were foreseeable
Claims based on negligent misrepresentation may be brought against manufacturers of hardware and software as well as service providers for misstatements about Y2K compliance
Umbrella organizations may be liable for failure to warm member charities about potential Y2K
Problems based on detrimental relevance
8. PUBLIC POLICY AND GOVERNMENT LIABILITY
Municipal, provincial and federal governments may face liability as a result of their public duty to promote and protect the public interest arising from Y2K Problems
- infrastructure systems such as transportation, telecommunications, utilities, etc.
- government services to individual clients, such as income distribution, licensing, etc.
- regulatory obligations, such as audits, inspections, commission, etc.
[Excerpted in part (with permission) and modified as necessary from the Canadian Bar
Association in its " Countdown To 2000-The Legal Issues" ]
1. ARE LEGAL REMEDIES PRACTICAL?
Determine if a legal action claim will be sufficient to protect an injured party
Serious consideration must be given to whether defendants to an action will be capable of paying damages and whether the defendants will even exist in the future
Legal remedies may not always be practical
2. RESTRICTION ON DAMAGES
Do existing contracts contain restrictions on the amount of damages that can be received for
losses caused by Y2K Problems?
3. REMEDIES OTHER THAN DAMAGES
If damages are not an appropriate remedy, what other options are available to an injured party?
A party may require immediate relief rather than waiting for prolonged litigation
Does the injured party have the right to compel a potential defendant to fix Y2K Problems, ie,
through an injunction
4. MITIGATION OF DAMAGES
Does an injured party have an obligation to mitigate against damages from Y2K Problems?
5. DISCLOSURE OF Y2K PROBLEM
Must a charity discloses its knowledge of a Y2K Problem to an opposite party when the Y2K
problem may impact the other party?
6. APPLICABLE LIMITATION PERIOD
Do limitation periods and/or other considerations restrict how or by when a legal action can be
commenced?
7. ARE THERE LIMITATIONS ON LEGAL LIABILITY
Contracts may contain specific provisions limiting liability and establishing conditions that must be met before liability can be found
Contracts may also contain certain time limitations in its representations or warranties
Contracts may also contain waivers and estoppel that preclude any liability claims
3. MINIMUM STEPS THAT SHOULD BE TAKEN
Appoint someone in the charity to take charge of Y2K compliance
List all hardware, software and automated/electronic equipment used in operations
Assess compliance of equipment and systems and get help from a consultant
Retain qualified consultants or advisors as necessary
Identify most critical functions in order to prioritize and budget for action
Repair, upgrade and change systems and procedures according to priorities
Require information from third party providers about their system compliance through written confirmation Y2K compliance letters and checklists as necessary
Test thoroughly for compliance with respect to all Y2K issues
Maintain separate electronic or paper backup of records, data basis and key dates
Develop a continency plan for the most critical functions of a charity
Review insurance contracts, particularly liability coverage, to see if there is any protection available for insurance under insurance coverage
Review the fine print in all contracts to determine exposure to Y2K liability and possible renegotiate contracts if necessary
Maintain documentation that demonstrate that "reasonable care" and "due diligence" was taken by the charity to protect its assets and to continue to provide required services
Avoid potentially incriminating correspondence about Y2K Problems, including e-mail
Ensure that employees are informed of both Y2K Problems and what remedial steps are being taken to deal with the problem
Ensure a consistent approach is taken to deal with the Y2K Problem and do not panic
2. WHAT DIRECTORS AND OFFICERS CAN DO TO PROTECT THEMSELVES
Exercise due diligence, which involves discharging duties and responsibilities with the requisite degree of care, diligence and skill required by statute and at common law in recognition of the director's fiduciary obligations akin to that of a trustee
Obtain indemnification from the charity or associated charities for the directors and officers with respect to potential Y2K liability
Obtaining liability insurance for directors and officers, if available, for Y2K liability
3. SPECIAL PROBLEMS INVOLVING AMALGAMATIONS AND MERGERS
Due diligence involving mergers and/or amalgamation with other charities requires that careful consideration be given to Y2K compliance by the amalgamating charity
Liabilities associated with the Y2K Problem by an amalgamated charity will become the liability
problem of the amalgamating charity
4. DUE DILIGENCE REQUIRED WITH JOINT PROJECTS WITH OTHER CHARITIES
Y2K liability exposure of agents, co-joint venture participants, or partners of a charity will potentially impact the liability of the charity
Potential for liability exposure will often occur in relation to international charitable activities
Need to conduct due diligence compliance of Y2K Problems of other charities
5. CONTRACTING TO CORRECT Y2K PROBLEM
Define Y2K services and the service provider's obligations
- clearly describe the scope of the work and the resulting services to be provided
Define Y2K Compliance
- clearly define what is meant by Y2K Compliance
Define project management
- clearly describe the manner in which the Y2K project is to managed
Define alternative dispute resolution mechanics
- the contract should provide for the use of alternative dispute resolution mechanism
Consents to modify intellectual property rights
- consider what consents are required for the service provider to modify the software
Ownership of modifications
- the contract should specify the ownership of the modifications and provide for appropriate waivers of "moral" rights
Protecting confidentiality
- the contract should provide appropriate protection for confidential information
Representations and warranties
- representations and warranties should be used to identify risk associated with the performance of the contract
Limitation of liability
- limitations of liability should reflect the economics of allocating risks
Indemnification of charities
- when should each party have an obligation to defend and indemnify the other party?
Year 2000: Sharing CEO Perspectives Viewpoint
and Executive Summary http://www.conferenceboard.ca
http://strategis.ic.gc.ca/sos2000
Guidance for Directors-The Millennium Bug Year 2000: Risk Management and
http://www.cica.ca Contingency Planning
http://strategis.ic.gc.ca/sos2000
Guidance material from ITAC Year 2000: Technology Checklist for
http://www.itac.ca Small Business
http://www.cfib.ca
January 1, 2000: Crisis or Opportunity Year 2000 legal issues
http://www.conferenceboard.ca http://www.cba.org/abc
DISCLAIMER: This summary of "The Y2K Problem for Charities: Avoiding Legal Liability" is distributed with the
understanding that it does not constitute legal advice or establishing the solicitor/client relationship by way of any information contained
herein. The contents are intended for general information purposes only and under no circumstances can be relied upon for legal decision
making without first consulting with a lawyer and obtaining a written opinion concerning the specifics of your particular situation.
Wardlaw, Mullin, Carter & Thwaites
235 Broadway, P.O. Box 67, Orangeville, Ontario, L9W 2Z5
Telephone:(519) 941-1760 Fax:(519) 941-3688
E-Mail: tcarter@wardlaw.on.ca
Web Site: www.wardlaw.on.ca
tsc\seminar\ch&law99\y2k
1999 ANNUAL CHURCH & THE LAW SEMINAR
Despite popular belief to the contrary, the Internet is not lawless. It is governed by all of the
same laws which affect us in our daily lives
Maintaining a web site can expose a church or charity to a variety of criminal and civil
sanctions if it is not careful
The following are a number of areas of concern for church and charity web site owners
1. TERRITORIAL JURISDICTION: "WHOSE LAWS DECIDE?"
The Internet is international in nature
What a church or charity posts on its web site can be viewed anywhere in the world
What a church or charity posts on its web site may expose it to the laws of potentially any
other jurisdiction anywhere else in the world
Issues of which jurisdiction is applicable is a relevant at present - the high degree of uncertainty
in determining the applicable jurisdiction should lead to wariness for church and charity web
site owners
2. INTELLECTUAL PROPERTY LAWS
All intellectual property laws are applicable to the internet including copyright and trade-mark
law
Unauthorized use of material created by someone else, may expose a church or charity to an
action for copyright infringement
Trade-mark law is applicable to web sites. If a church or charity makes use of the trade-mark
of another without its' permission, whether to establish a hyperlink, a meta-tag, or to promote
the services of the church or charity, then the church or charity will likely be exposed to an
action for trade-mark infringement
Obtaining necessary releases and licenses important for web site owners to reduce the chances
of litigation
3. DOMAIN NAME DIFFICULTIES
Area of contention and uncertainty at present
If the domain name is the trade-mark of another then a church or charity may expose itself to
an action for trade-mark infringement
At the same time, taking appropriate steps to secure its domain name is highly recommended
to churches and charities
If a church or charity fails to act, it may find itself having to purchase its domain name from
someone who had the prescience to register it first
4. CIVIL ACTIONS ON THE INTERNET
Include defamation (libel and slander), interference with economic interests, passing-off, trade-secrets and breach of confidence, and negligence
Defamation can occur easily on the Internet. E-mails can not be considered as privileged or
private communication. Bulletin Boards and Chat Rooms allow the disenchanted to defame
others
Church and charity web site owners should carefully review anything posted to their sites, or
they may find themselves publishing defamatory material
Use of a web site to criticize the business practices, wares or services of others can lead to
actions for interference with economic interests if such use leads to contracts being breached
Passing-off can occur if a web site is used to promote goods or services in the name of
another, or if the web site is designed to prosper from the goodwill of another organization or
individual
Trade-secrets can be passed easily over the internet, and breaches of confidence can easily
occur through inappropriate use of e-mail, or improper security measures
Negligence can include statements posted on a web site which are relied upon by others to their detriment, in situations where it would be expected that such reliance would occur
Some recommendations to reduce problems
(a) Vicarious liability of employers for actions of employees - limit employee access to the web site;
(b) Limit access to the web site to invited guests;
(c) Regularly monitor what is posted on your web site;
(d) Use security measures; and
(e) Use disclaimers;
5. CRIMINAL ACTIONS ON THE INTERNET
Criminal law is applicable to the internet
Issues of jurisdiction important for criminal law - area of uncertainty
Includes illegal speech, criminal libel and gaming
Illegal speech involves s.319 of the Criminal Code
Illegal speech includes: "Every one who, by communicating statements in any public place,
incites hatred against any identifiable group where such incitement is likely to lead to a breach
of the peace" and "every one who, by communicating statements other than in private
conversation, willfully promotes hatred against any identifiable group" is guilty of an offense
Criminal libel is defined as "a matter published, without lawful justification or excuse, that is
likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or
that is designed to insult the person or, or concerning whom it is published"
Gaming and betting is regulated through numerous applicable sections in the Criminal Code
Generally, gaming is prohibited unless regulated by a provincial government, while section
207(4) (c) basically requires that any lottery scheme using a computer be operated by a
provincial government
Issues of jurisdiction significant when dealing with gaming
Michigan statement on jurisdiction over internet - indicates that Michigan will try individuals
under Michigan law is offer gambling over the internet to Michigan residents
The same recommendations as outlined in the section dealing with civil law issues apply with
respect to criminal law issues
6. AREAS OF SPECIFIC CONCERN
A number of web site design practices have recently engendered litigation in the United States,
and should be avoided where possible. These include the following practices
(a) Hyperlinking without permission to other web sites
(b) Hyperlinking to pages on another web site, which are below the home page of the other web site
(c) Using a meta-tag which is the trade-mark of someone else without their permission, in
order to draw searches to your web site
(d) Using 'framing' technology in order to pass of f the material of another web site, which
has been hyperlinked into the frame, as your own, or in combination with your own
promotions and advertisements
(e) Spamming - mass e-mail distribution -- can lead to civil actions for damages as well as the
anger of recipients
1. SOME EASY RULES OF THUMB
Firstly, don't use what is isn't yours, or attempt to gain benefit from the work of others
without first obtaining their permission;
Secondly, ensure that you use your web site in a civil manner, always with an eye to how
others will receive what you have to say;
Remember to maintain control over how your web site is being operated;
Ensure that only a limited and trusted number of employees have access to what is placed on
your web site;
Maintain confidentiality of information obtained and used; and
Operate your web site with an eye to the effect that it will have throughout the world, and not just in Canada or the United States.
DISCLAIMER: This summary of Web Site Issues: The Law and What You Need to Know is distributed with the understanding that it does not constitute legal advice or establishing the solicitor/client relationship by way of any information contained herein. The contents are intended for general information purposes only and under no circumstances can be relied upon for legal decision making without first consulting with a lawyer and obtaining a written opinion concerning the specifics of your particular situation.