There are always new things of interest to the NFP and charities law sector and we report on several in this edition of our newsletter. For organizations incorporated in Ontario, we include an update on the Not-for-ProfitCorporationsAct, 2010("ONCA") and the recently introduced Bill 85, which amends the ONCA. Note that as of the publication date, Bill 85 has not been passed and the government has announced that the proclamation date of the ONCA will be at least six months after the passing of Bill 85. It will be important for organizations to ensure necessary amendments are made to effect compliance with the ONCA. There also have been recent CRA guidances and we discuss two on drafting charitable purposes and fundraising. We also look at parallel foundations. Employment issues are relevant to any person with even one employee. We consider whether an employment contract can be airtight and how to minimize risk. Advertising rules can impact NFPs and we discuss the ASC code of standards. We provide an update on British Columbia's Community Contribution Companies.
Can Employment Contracts be Airtight? — Avoiding Common Pitfalls
In recent years, written offer letters and employment contracts have become much more common. Employers and employees typically agree that reducing essential terms and conditions to writing ensures certainty both during the employment relationship and at the time of termination, and reduces the likelihood of costly litigation.
In order for an employment contract to be enforceable, it must contain the essential elements of a contract: an offer by the employer, acceptance by the employee, and consideration. Consideration consists of a benefit flowing in both directions (at its most basic level, the employee provides services, and in exchange is paid compensation). In addition, employment contracts must comply with the minimum requirements of the Employment Standards Act, 2000 (the "ESA"), or other applicable employment standards legislation. For example, employers cannot contract to provide less than minimum ESA termination notice or pay, and severance pay, if applicable, upon a termination without cause. Finally, employees should enter into employment contracts freely, voluntarily, and without undue influence or duress. If undue influence or duress can be shown, the employment contract will be unenforceable.
General Principles Applicable to Written Employment Contracts
When drafting and entering into employment contracts, certain general principles apply:
- Employment contracts must be signed before the first day of work. If an employment contract that contains onerous terms (like a restrictive termination provision) is signed after the employee's first day of work, it will be unenforceable for lack of consideration.
- Give employees time to review the agreement. It is important to provide the contract to the employee several days or a week prior to his or her start date in order for the employee to review it and seek independent advice if he or she sees fit.
- All important terms and conditions should be included in the employment contract. If terms have been agreed to orally, those should be reduced to writing. It is advisable to include an "entire agreement" clause in the contract so that the employee cannot argue that other binding terms not included in the contract exist.
- If there is reference to terms and conditions found in other documents such as employment policies, a Code of Conduct, or Confidentiality and Non-Disclosure agreement, those documents should be attached to the employment contract.
- Use clear, explicit and detailed language, as ambiguity will be interpreted in favour of the employee, and not the employer- the drafter of the contract (the contra proferentum rule).
- Bring onerous clauses (e.g., termination clauses) to the attention of the employee when the employment contract is presented to the employee. In addition, it is wise to provide employees with the opportunity to seek independent legal advice prior to signing the contract. An employment contract is more likely to be enforceable if the employee reviewed it, or at a minimum was given the opportunity to review it, with a lawyer.
- Beware of imposing an employment contract on an existing
employee. New terms and conditions can be implemented with the
agreement of an employee who has already started working, but fresh
consideration is required. For example, if the employer seeks to
include a non-competition provision in an employment
agreement with an existing employee, additional consideration should be provided to the employee, for example, in the form of a bonus or increased compensation, or the new contract terms should be implemented at the time of a promotion. The consideration should not be an amount or benefit that would be provided to the employee in the normal course. Alternatively, new terms and conditions can be imposed on existing employees, if reasonable notice is given.
- Finally, termination clauses must stand up to scrutiny. In employment law there is a "rebuttable presumption" that an employee is entitled to common law reasonable notice, unless a more restrictive written termination provision exists. In order to be enforceable, a termination clause must be included in the employment contract (not just in a policy), must be clearly worded and unambiguous, and must meet or exceed employment standards minimums.
Reducing terms and conditions to a written agreement has the benefit of avoiding costly disputes down the road if the above principles are observed.
Drafting Charitable Purposes
With the passage of the Canada Not-for-profit Corporations Act into law and the pending introduction of Ontario's Not-for-Profit Corporations Act, 2010 many organizations have been revisiting their charitable purposes as part of the continuance process. Canada Revenue Agency ("CRA") recently released a new guidance paper on drafting charitable purposes on July 25, 2013, which replaces some of its former policy statements on the topic. While Guidance CG-019 – "How to Draft Purposes for Charitable Registration" appears to be aimed in the first instance at organizations seeking charitable registration, the CRA has indicated that it also applies to registered charities that want to change their existing purposes. The CRA has also recently revised its list of model charitable purposes, which provides examples of purposes that the CRA has found to be properly charitable.
Whether an organization is seeking charitable registration for the first time, or revising or updating its existing purposes, articulating charitable purposes in a way that is acceptable to the CRA is sometimes easier said than done. The CRA's new guidance and model purposes should be reviewed carefully during the drafting process.
Legislative Update: Bill 85 Amends the Not-For-Profit Corporations Act, 2010 and Moves the Ontario Government One Step Closer to its Proclamation
On June 5, 2013 the Ontario government introduced in the legislature Bill 85, the Companies Statute Law Amendment Act, 2013. Bill 85 seeks to amend various corporate statutes, including the still-unproclaimed Not-for-Profit Corporations Act, 2010 ("ONCA").
The proposed amendments are largely technical in nature: changes to defined terms; updating the mechanics of incorporation, restructurings and filings; and updates in various legislation of references to the existing Corporations Act.
We highlight two substantive changes of significance for Ontario non-share capital corporations:
Clarification of Transition to ONCA
Bill 85, if passed, clarifies that to the extent any valid provision in an existing non-share capital corporation's letters patent, supplementary letters patent, by-laws or special resolutions ("governance documents") do not conform with the provisions of ONCA, those provisions continue to be valid and in effect until: (i) the day the corporation amends its governance documents to bring them into conformity with ONCA; or (ii) the third anniversary of the date the transition section of ONCA is proclaimed into force.
To summarize, the transition provisions clarified by Bill 85 are as follows:
- ONCA applies immediately to all non-share capital corporations incorporated by letters patent under the Corporations Act.
- If there is a provision in your existing governance documents that is in clear conflict with ONCA, the provision in your governance documents will prevail for up to three years provided that provision is currently in compliance with the Corporations Act.
- If ONCA prescribes a requirement that is not in clear conflict with your governance documents, the new requirement will apply immediately (for example, unless your organization's governance documents expressly address the scope and process in which member proposals may be put to meetings, member proposals as permitted by ONCA will immediately apply).
- Any amendment to the governance documents once ONCA is proclaimed into force must include all changes required for the corporation to be in conformity with ONCA
- If within three years after ONCA is proclaimed in force an organization does not voluntarily amend its governance documents to conform with ONCA, it will be deemed to have done so to the extent necessary to bring the governance documents into conformity with ONCA.
- ONCA requires certain provisions (for instance, multiple classes of membership with different or no voting rights) to be set out in the articles to be valid. If such a provision exists and is set out in the by-laws, it must be restated in the articles to conform with ONCA by the third anniversary, following which it becomes invalid.
Voting Rights of Non-Voting Members on Fundamental Corporate Changes
One significant change under ONCA is the creation of a statutory right of non-voting members to vote, sometimes separately as a class, on certain fundamental corporate changes, including decisions to amalgamate, to continue out of ONCA, to approve the sale or lease of all or substantially all of the property of the corporation, and to make amendments to governance documents that would adversely impact the rights of non-voting members.
Bill 85 clarifies that the voting rights of non-voting members will be proclaimed into force no earlier than the third anniversary of the date ONCA is proclaimed into force. Accordingly, non-share capital corporations with non-voting members now have a period of time to deal with this issue before these statutory rights become available to non- voting members.
The text of Bill 85 can be found at: http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session2/b085.pdf
Not-For-Profits Should Review the Canadian Code of Advertising Standards
Advertisements must be truthful. This applies to advertisements from not-for-profit organizations as well. For instance, the application of the Canadian Code of Advertising Standards ("Code"), which is administered by Advertising Standards Canada ("ASC"), includes advertising by organizations or institutions seeking to improve their public image or advance a point of view.
Over the past few years, a number of complaints against not-for-profits have been upheld by ASC. In the majority of the cases, the Accuracy and Clarity clause was contravened. Among other things, the Accuracy and Clarity clause provides that:
- Advertisements must not omit relevant information in a manner that, in the result, is deceptive
- Both in principle and practice, all advertising claims and representations must be supportable
- The advertiser must be clearly identified in an advocacy advertisement (which is defined as advertising which presents information or a point-of-view bearing on a publicly recognized controversial issue)
For example, in one case, a not-for-profit was found to have contravened the Accuracy and Clarity clause of the Code when it announced in a newspaper advertisement that it raised a certain sizeable amount of money from a telethon. ASC received a complaint that the amount of money was inaccurate, as the amount included monies generated from other fundraising events held throughout the year.
Other clauses contravened by not-for-profits over the past few years included Unacceptable Depictions and Portrayals, Professional and Scientific Claims, and Superstition and Fears.
Before organizations finalize their advertising plans, they should review it against the Code. Otherwise, an organization may find itself justifying its advertisement to a complainant or the ASC, and risk seeing its name in print for contravening the Code.
Community Contribution Companies — Incorporation Applications Can Now be Submitted!
As of July 29, 2013, incorporation applications can be submitted to the Registrar of Companies in British Columbia to incorporate Community Contribution Companies, a new hybrid company established for community purposes.
There are certain requirements placed on Community Contribution Companies that are different from other companies. Before submitting an incorporation application, don't forget that Community Contribution Companies must have:
- the words "Community Contribution Company" or the abbreviation "CCC" as part of its name;
- a minimum of 3 directors; and
- one or more primary purposes being community purposes and those community purposes must be set out in its articles.
If you would like to incorporate your Community Contribution Company or have any questions regarding Community Contribution Companies, please contact us.
Separation Anxiety and Control Issues for Parallel Foundations
Many charities in Canada have established what are commonly known as a "parallel foundation", which can generally be defined as a separate foundation, which is itself a charity that has been established by the "parent" charity. While many parallel foundations are focused primarily on raising and transferring funds to the parent charity, some also carry on their own charitable activities directly – for example, by running a scholarship program or operating a related business. Notwithstanding, the most common reason for establishing a parallel foundation is to protect the assets of the parent charity by maintaining them in a separate entity and taking advantage of the "limited liability" feature of corporate law under which assets held in one corporation are unavailable to satisfy the liabilities of another separate corporation. Charities that have established a parallel foundation also typically shift their fundraising efforts to the foundation with the goal of protecting funds generated on a going forward basis within a separate entity.
For any organization considering whether to establish a parallel foundation, issues of control, connection and separation are inevitably raised, particularly in light of the decision in Re ChristianBrothers of Ireland in Canada1 ("Christian Brothers"), in which the Ontario Court of Appeal held that property held in a separate special purpose trust by a charity was exigible to compensate tort victims of the charity. While the decision in Christian Brotherswas limited to the specific fact situation at hand, over the past decade it has caused the charitable sector to question whether the use of parallel foundations is a truly effective method for protecting a charity's assets and whether future court decisions may curb the ability of a parallel foundation to offer that protection. Many have interpreted the ChristianBrothers decision as requiring more separation between a parent charity and a parallel foundation if the assets held in the foundation are to be truly protected. However, since parallel foundations are usually established to benefit the parent charity, the parent charity will want some control over the foundation to ensure that the operations of the foundation do just that – both when the foundation is established and into the future. The question thus faced by every charity seeking to establish a parallel foundation is how to structure the relationship so that a sufficient level of control is maintained over the foundation while ensuring that the operations of the charity and the foundation are not so intertwined so as to permit the liabilities of the charity to be funded by the foundation.
Unfortunately, no case since Christian Brothershas analyzed the issue of whether the assets of a separate entity are exigible to the creditors of a charity. However, a couple of recent decisions have touched on when the assets of a separate entity are available to a charity, which may have an impact on future jurisprudence in this area. In the 2010 decision in L'Évêque Catholique Romain deBathurst v New Brunswick (Attorney General)2, the New Brunswick Court of Queen's Bench allowed a diocese to broaden the objects of 21 trust funds holding funds intended to assist with the training of candidates for the priesthood so as to permit the diocese to access those funds to compensate victims of sexual abuse by its priests. In coming to its decision, the court noted that the primordial intention of the trusts' creators pre-supposed the perpetuation of the diocese, which was facing financial demise in light of the claims of the sexual abuse victims.
Conversely, in 2011, the Ontario Superior Court of Justice held in Victoria Order of Nurses for Canada v Greater Hamilton Wellness Foundation3 ("VON") that a parallel foundation was in breach of its fiduciary and trust obligations when it, contrary to its objects, distributed funds to organizations other than its parent charity. The foundation was thus required to transfer its assets and income to its parent charity, which was found by the court to be beneficially entitled to the foundation's property. Factors cited by the court in coming to its decision in this case included: (a) the inclusion of the parent charity's name in the original name of the parallel foundation; (b) representations made in fundraising and solicitation material indicating that the foundation's funds would be used for the parent charity's programs; (c) the fact that the parent charity was the initial source of funding for the foundation; (d) the existence of a Statement of Operating Principles between the parent charity and the foundation indicating that the foundation existed to provide resources to the parent charity, among other things; (e) the foundation's history of exclusively funding the parent charity and its associated entities; (f) financial statements and annual information returns of the foundation that indicated that the parent charity was the exclusive beneficiary of its efforts; (g) the sharing of office space by the parent charity and the foundation; (h) the active participation by representatives from the parent charity in the foundation's board meetings; and (i) the fact that the parent charity's budget and the foundation's funding decisions would be discussed at the same board meetings. While the facts in VON are distinguishable from circumstances in which a third party attempts to seize the assets of a parallel foundation to satisfy a parent charity's liabilities, the factors examined by the court in this case may be instructive to courts in future cases when analyzing whether the assets of a parallel foundation should be made available in such a manner.
In the aftermath of the Christian Brothers decision, the following helpful strategies have been developed in the charitable sector to mitigate the risk that a parallel foundation's assets be made available to fund the liabilities of its parent charity, some of which were echoed by the court in VON in its analysis:
- Avoid any representations indicating that the parent charity is responsible for the parallel foundation
- Ensure that each entity is represented as distinct from the other at all times (e.g., use separate letterheads, logos, signs, brochures, etc.)
- Establish independent top-level executives
- Maintain different directors on each board to the extent possible
- Maintain separate officers and employees (the same employees and officers may be used in some circumstances where one organization pays/invoices the other for the services of those employees and officers)
- Maintain separate financial records and minute books
- Maintain separate bank and investment accounts
- Maintain separate office space to the extent possible
- Avoid allowing one entity free use of the other's property, whether office equipment, land or buildings, without properly documenting the arrangement
- Establish separate accountants and other professionals for each entity
- Properly formalize and document all loans between the entities
- Avoid having one entity pay for the costs and expenses of the other
It is strongly recommended that the relationship between a parent charity and a parallel foundation be reviewed very carefully from both a practical and legal perspective upon the establishment of the foundation and on a regular basis thereafter so as to avoid any unintended consequences that may result from an insufficient level of control or separation between the two entities.
1 47 OR (3d) 674, leave to appeal to SCC refused  SCCA No 27.
2 371 NBR (2d) 146.
3 2011 ONSC 5684.
with thanks to Andrew Baker
Charitable Fundraising? Remember The CRA Guidance: There Are Practices that Raise a Red Flag!
The fundraising guidance of the Canada Revenue Agency ("CRA") is available at: http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cgd/fndrsng-eng.html.
Fundraising is something the CRA is interested in, and reviewing the guidance can help you stay within the lines.
Fundraising practices that are problematic from the CRA's perspective have been categorized as follows (details are available in the fundraising guidance):
- Resources devoted to fundraising are disproportionate to resources devoted to charitable activities
- Fundraising without an identifiable use or need for the proceeds
- Inappropriate purchasing or staffing practices (paying more than fair market value for fundraising services is one of the major issues for this category)
- Fundraising activities where most of the gross revenues go to contracted third parties
- Commission-based remuneration or payment of fundraisers based on amount or number of donations
- Misrepresentations in fundraising solicitations or disclosure about fundraising costs, revenues or practices
- Fundraising initiatives or arrangements that are not well documented
- High fundraising expense ratio – should aim to keep the ratio of costs to revenue over a fiscal period to under 35%
As with many things, the problem may lie in the details. The Charities and Not-for-profit team at BLG is happy to help.
Is there an Ability for a Company to Give Tax Receipts for Donations of Clothing, Furniture and the Like?
We are asked from time to time about the ability of a charity to issue tax receipts for a gift of an item rather than money.
A charity can give tax receipts for donations "in kind" – i.e. anything other than money. The charity is responsible for making sure the receipt is issued for not more than the fair market value of the property.
As a reminder, the CRA's policy statement on this is CSP-F07 (reproduced below):
September 3, 2003
Fair market value (appraisal)
The fair market value of a gift in kind as of the date of the donation must be determined before an amount can be recorded on an official donation receipt."
If the fair market value of a gift is $1,000 or less, a qualified staff member of the registered charity receiving the gift can appraise the gift. If the fair market value is more than $1,000, the Charities Directorate strongly recommends that the property be appraised by someone who is not associated with either the donor or the charity receiving the gift (that is, a third party). The person who determines the fair market value of the property must be competent and qualified to evaluate the particular property being transferred by way of a gift. For administrative ease, many organizations decide not to issue such receipts and many donors are happy just to find a place for their gifts where those gifts can find a new life in someone else's hands.
Not-For-Profit And Charity Law In Canada Blog
Have you seen our blog at blog.blg.com/nfp? Some of our recent postings include:
- NFP Q&A: Are Not-for-Profits and Charities Paying Too Much Property Tax?
- Federal Court of Appeal Extends Time for Publication of Notice of Revocation of Registered Charity Status for Religious School
- NFP Q&A: What's the Latest on Ontario's Not-for-Profit Corporations Act, 2010 (ONCA)?
- CRA's Views on Promotion of Health and Charitable Registration and Amalgamating
Our annual NFP and Charities Law Symposium will be held on November 13, 2013 starting at 2:30. Watch for more details at our blog.blg.com/nfp.
You also can follow members of our group on Twitter. For tweets on NFP and charities law and on marketing, defamation and matters of general interest follow @VPrinceLaw, @EvaChanLaw, and @MichaelSmithYYZ.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.