With a proposed tax change in the recent federal budget, it may be possible for charities to see an increase in donations. The Federal government’s new budget provides for an exemption to paying capital gains tax for taxpayers donating the cash proceeds from the sale of private company shares, real estate investments or secondary homes. This new tax credit is similar to the non-refundable tax credit that has been applicable to publicly transferred shares, mutual funds or segregated funds since 2006. The difference between the new tax credit and the existing exemption is that for the new tax credit, the credit is applied if the donor sells the securities or real estate and donates the cash proceeds. For the 2006 tax credit, the securities have to be transferred directly to the charity. This new rule is slated to take effect for sales of shares or real estate starting in 2017.
Canada’s Anti-Spam Legislation (the “CASL”) is scheduled to come into effect on July 1, 2014. The CASL has the potential to effect every Canadian Charity or Not-for-profit organization and as a result, immediate steps should be taken to ensure compliance with the CASL.
In brief, the CASL regulates the sending of commercial electronic messages (“CEMs”). A CEM is an electronic message that encourages participation in a commercial activity and includes e-mails, texts, social media messages or other forms of electronic messaging. The CASL prohibits the sending of CEMs unless the content of the CEM includes certain prescribed information and the sender of the CEM has received consent to send the message.
There are three general requirements for the sending of a CEM to an electronic address: (1) consent (express or implied); (2) identification information; and (3) an unsubscribe mechanism. Consent to send commercial electronic messages (CEMs) is implied for a period of 36 months beginning July 1, 2014, where there is an existing business or non-business relationship that includes the communication of CEMs. The three-year period of implied consent ends if the recipient indicates at any time that they no longer consent to receiving CEMs. To obtain express consent, the charity or non-profit must explain the purpose or purposes for which the consent is being sought.
For those of you who have had the pleasure of volunteering with a Not-for-Profit organization this year, or for those who are thinking about volunteering in the future, there are some key issues to report on.
The top priority for Federally incorporated not-for-profits is the transition to the Canada Not-for-profit Corporations Act (the “CNCA”). It is hard to believe that the Canada Not-for-profit Corporations Act (the “CNCA”) came into force more than two years ago. That means that for not-for-profits who have yet to comply there is only ten months left to successfully transition to the CNCA.
The deadline to file the Articles of Continuance is October 17, 2014. If the Articles of Continuance are not filed by this deadline, the corporation will be dissolved.
If you have not started this process, you should take immediate steps to:
- Review the current letters patent and existing by-laws;
- Draft the Articles of Continuance;
- Create a new set of by-laws that comply with the CNCA or revise the current set;
- Have the members of the Corporation approve both the Articles of Continuance and new by-laws, by special resolution, at a members meeting; and
- Submit the Articles of Continuance and by-laws to Corporations Canada to receive your Certificate of Continuance.
Please keep in mind that the Articles of Continuance and by-laws must be approved by special resolution. This can easily be accomplished at your annual general meeting but if that is not possible, special steps will need to be taken to ensure that the Corporation has the approval of the members to submit the necessary documents for Continuance.
Ontario’s Not-for-Profit Corporations Act, 2010
Board members for not-for-profits registered in Ontario remain in a wait-and-see period. As some of you may recall, the new Ontario Not-for-Profit Corporations Act, 2010 (the “ONCA”) has been scheduled to come into force at several different dates over the past two years, but each time there have been postponements to its implementation, the most recent date being January 1, 2014.
This past summer, amendments to more than 80 statutes, including the ONCA, were introduced in the provincial legislature. As a result, the January 1, 2014 day was postponed as it was anticipated that these amendments would be debated throughout the fall of 2013 and spring of 2014.
If the results of these debates result in the amendment of the ONCA, it is anticipated that the new date to come into force would be no earlier than six months after the passage of the statute. This means that we can expect the ONCA to come into force no earlier than late summer 2014. Once the new law comes into force, Ontario not-for-profits, like their federal counterparts, will have three years to transition to the new legislation. However, unlike the Federal legislation which dissolves not-for-profits who don’t comply within three years, Ontario not-for-profits will be deemed to have complied even if they have not taken the necessary steps themselves within the allotted time period.
As always, we will keep a keen eye on the Ministry of Consumer Services and will inform you of any updates provided.
In October 2011 new Federal Not-for-Profit legislation was passed and organizations affected were given three years to transition to the new requirements.The CNCA replaces Part II of the Canada Corporations Act and provides a simplified process, more flexibility and a clearly defined set of rules to govern the internal affairs of Federal not-for-profit corporations. Kelly Santini’s Business Group has launched a survey to determine if federally incorporated not-for-profit corporations are prepared for the new legislation, how long the conversion process is typically taking, what common pitfalls are being confronted and what lessons have been learnt thus far.
A summary of the findings and recommendations will be shared with all interested participants and all responses are confidential.
In early July I reported that the new Ontario Not-For-Profit Legislation would be coming into force on January 1st, 2013. Since that time the Government has decided to postpone its implementation. The Not-for-Profit Corporations Act, 2010 is now targeted to come into force on July 1, 2013 but this may be subject to further postponements in the wake of the Premier’s recent resignation.
As mentioned in previous posts, the Ontario legislation is very similar to the Federal legislation which came into force just over one year ago. Since then we have been actively assisting many Federal not-for-profits with preparing their Articles of Continuance and making amendments to their by-laws. A consistent lesson learned from these early adopters is that this process takes a considerable amount of time. In some cases, reviews that began over a year ago are still on-going. Federally incorporated not-for-profits should be reminded that the October 2014 deadline is fast approaching. For Provincially incorporated not-for-profits, while the deadline is still not known, the same time challenges will apply when the Legislation is finally enacted.
For more information information on the steps Federally incorporated not-for-profits need to take to comply with the new legislation, please click here.
After months of speculation, the new Ontario Not-for-Profit Corporations Act (the “ONCA”) is scheduled to come into effect on January 1, 2013. Similar to the Canada Not-for-Profit Act, which came into force in October 2011, the ONCA will modernize the way Not-for-Profit corporations in Ontario are dealt with, including online and instantaneous incorporation, which means no more waiting.
On January 1, 2013, the ONCA will apply to not only every new non-share capital corporation, but will also automatically apply to every non-share capital corporation governed under the Corporations Act (Ontario). However, every existing non-share capital corporation will be required to follow their existing letters patent and by-laws until such time as they have taken steps to file articles of continuance to bring them into compliance with the ONCA.
The first step will be to review your current by-laws and charter documents and to make any necessary changes so that you are in compliance with the Act. Remember that director and member approval is required to amend the by-laws. A special resolution, requiring 75% of the members, is then needed to authorize the filing of the articles of continuance.
Non-share capital corporations will have three years to review and amend their by-laws, letters patent, supplementary patent and to file the required articles of continuance. If after three years, the necessary documents have not been filed, the amendments are deemed to have been made.
The reliance on this deemed compliance will only lead to ambiguity and it is wise that Directors and Officer start thinking about the future of their organization and what actions they will need to take to ensure they comply with the new legislation.
The government is said to be working on a guide to the new Act along with a transition checklist and default bylaws. We will be sure to provide this key information when it is released later this summer.
As music fans in Eastern Ontario will know, the TD Ottawa Jazz Festival is currently taking place in Confederation Park. For the past few years now I have had the pleasure of serving on the Board of Director of the Jazz Festival and am currently the President. Like most people involved in not-for-profit organizations I was motivated to join the Jazz Festival Board by a desire to give back to the community in a way that matched both my skills and personal interests.
Ottawa’s Jazz Festival is now in its 32nd year and like a lot of not-for-profit organizations it has grown and matured considerably over the years. This growth has driven the need for the Board of Directors to examine its role and to ensure that issues of governance are always addressed. After all, members of the Board can, in certain circumstances, attract personal liabilities
It is the distinction between the role of the Board and the role of the staff responsible for the day-to-day operations that most often gets blurred in not-for-profits. In the case of the Jazz Festival our Board could easily fall into the trap of spending hours every meeting talking about musicians we’d like to see at the Festival. But to do so would result in us failing to carry out the duties of the Board. Proper governance of the Festival is paramount, and that is where we have to focus our efforts.
Governance is an enormous topic. Directors have significant duties and responsibilities that they should be aware of before accepting the position. In the case of the Jazz Festival our priorities are financial management, emergency planning and contingency planning. Running into financial difficulties is a pretty common problem for not-for-profits. Any not-for-profit organization will want to ensure that the proper controls are in place to manage costs, review revenue and provide approval for all major expenditures.
Music festivals have suffered from some tragic and unexpected accidents recently. A priority for us is of course taking the steps needed to try and prevent the incidents from occurring and to prepare an emergency plan if something does occur. This ranges from evacuation plans for the Festival site to carefully reviewing our insurance coverage for all possibilities.
Our third priority is contingency planning. Executive Director Catherine O’Grady has been running the show at the Jazz Festival for many years. How we would manage should she ever become ill or leave her role is a question for which we must always have an answer. The Festival has sponsors and government departments that support us and we need to ensure the event they support is first rate.
Each not-for-profit organization is different and it is up to the Board of Directors to use their knowledge of good governance to identify the priority areas. Most critically, each director must remember to remove themselves from their interest in the day-to-day operations, no matter how enjoyable or rewarding it may be, in order to focus on fulfilling the role of the Board.
Enjoy the Festival!
Since the introduction of the new federal not-for-profit legislation, we have assisted several not-for-profits who have struggled to track down the key documents needed for continuance under the new not-for-profit legislation. Key documents such as the Letters Patent or Supplementary Letters Patent and a current copy of the by-laws must be located before the conversion can take place. If you are a federally registered charity, it is also important to have copies of important documents from CRA available for review.
As for corporate records such as minutes, resolutions and registers, it is not unusual for an organization to have missing or incomplete records. Unfortunately, when dealing with incomplete or missing corporate records there are no quick solutions or statutory provisions to rely on.
The first step is to obtain and examine the records that actually exist which are often found in an official binder or folder, often referred to as the “minute book”. Even if there is not an official “minute book” there is likely a folder somewhere that has all the important corporate documents to date including your charter documents. You may also need to contact former officers or directors of the corporation and also the lawyers who may have previously acted for the corporation.
Once all searches are exhausted it is time for the corporation and their lawyer to reconstruct the material corporate events as best they can. Your lawyer will work with you to determine what material documents are missing and may create an omnibus resolution to bring the records up to date. For example there may not be any record of the officers or directors of the corporation so it will need to be traced as carefully as possible and set out in a resolution.
Effective record keeping of corporate documents is not only a wise and essential part of your corporation, it is required under the new legislation. Your corporate secretary, whether it the lawyer you have retained, or a member of your organization should maintain detailed minutes and review the documents yearly to make sure everything is kept up to date.
Federally incorporated not-for-profits have until October 2014 to complete their conversion to the new legislation. If you are provincially incorporated then your time is coming. The Province of Ontario is expected to enact similar legislation later this year.
It’s expected that the Ontario Not-For-Profit Corporations Act, 2010 (NFPCA), which received Royal Assent on October 25, 2010, will finally come into force in late 2012. Once in force, the NFPCA will replace the Corporations Act (Ontario), which currently regulates not-for-profit corporations in Ontario.
The NFPCA will provide a regulatory framework similar to what is currently available to Ontario “for-profit” corporations and largely mirrors the recent changes to federal not-for-profit corporations which were implemented in the Canada Not-For-Profit Corporations Act, which came into force on October 17, 2011.
In the coming months, we expect that the provincial government will begin to release draft documents and transition guides to assist in the continuance of current not-for-profit corporations. Corporations can now begin familiarizing themselves with the new legislation and start planning their continuance under the NFPCA. More information on the Ontario Not-For-Profit Corporations Act, 2010 is available here.
For federally incorporated not-for-profits, 2012 will be a year when boards begin to plan for the changes required by October 2014. For a short summary of the changes brought in by the new legislation and the steps boards should be taking to comply, please click here.