The Ontario Not-for-Profit Corporations Act (the “ONCA”), received royal assent in October 2010. After nearly ten years, it has neither been proclaimed into force nor been given an official date to be proclaimed into force. This limbo state is sometimes referred to as being “unproclaimed”, as the bill has passed but there is no official date on which the legislation will be proclaimed into force. For the last two years, the ONCA has been expected ...
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Calgary Flames fans were riling up Edmontonians this January by fundraising for a billboard ad in the Edmonton Oilers’ turf featuring a Flames player. An Edmonton woman came up with a charmingly Canadian response to the show of friendly rivalry between the two Albertan hockey teams’ fans. She made a donation to a Calgary-based charity in honour of Oilers’ player Zack Kassian and tweeted a screenshot challenging other Oilers fans to do the same. Charities ...
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Charitable and non-profit entities may receive a range of tax advantages, some of which can potentially be quite significant. One such advantage is a break on property taxes. In Ontario, the Assessment Act provides a full exemption from property tax to various charitable and non-profit outfits, including religious organizations, care homes, child care centres, cemeteries, educational institutions, public hospitals, and more. Similar exemptions can be found throughout Canada, as well as abroad. These exemptions can ...
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Canadians are well used to attending at various tribunals, boards, and panels. The assumption is that the decision makers at these bodies are subject to certain rules to ensure that they operate fairly and come to decisions that are applied legally. Parliament and the various provincial legislatures have set up these quasi-courts to take advantage of the specialized experience they ostensibly wield in their various areas. So, one would expect that a member of the ...
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A recent ruling from the CRA dealing with the “Loanback Provisions” of the Income Tax Act as they affect charities will be of some interest. The ruling was in response to a written request for CRA views regarding the application of the loanback provisions found in subsection 118.1(16) of the Income Tax Act to two situations described in your request In the interest of accuracy, we reproduce the response verbatim. “Briefly, in the first situation, ...
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Most organizations that are pursuing charitable status are incorporated. Part of the requirement for achieving such status is that the corporation is organized to pursue charitable purposes. But that by itself is not enough for charitable registration and so prospective charities must apply to the CRA for registration. The question then arises about the tax status of those corporations that are not yet (and may never be) registered charities, and what are their responsibilities? Just ...
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Over the past several years, the Charities Directorate has been enthusiastically anticipating some much-needed technological modernizations to its operations. On June 1, 2019, the Directorate finally rolled out online applications for charitable registration (Form T2050) and the annual charity returns (Form T3010), which had previously been paper-only. The new automated system, dubbed CHAMP, shows promise – but also some serious concerns. It was clearly not planned very well, to the point that it seems questionable ...
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Those with long memories in the charity sector will recall that the voluntary sector initiative of the 1990's promoted the introduction of sanctions for offences that were less than revocation. It also advocated that appeals of these sanctions be heard by the Tax Court, and hoped that before long a body of case law would be developed to provide additional guidance to charities seeking to avoid these penalties. Amongst these intermediate sanctions (as they were ...
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We have written before about the risks posed to Canadian charities from the international movement of financial institutions towards “de-risking”. De-risking is the response of these institutions to the movement by the Financial Action Task Force (“FATF”) and its related partner entities to force financial institutions to aid in the fight against money laundering and the financing of terrorism. Because of the additional costs involved for the banks in monitoring risky accounts – and the ...
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Prime Minister Justin Trudeau visited the Governor General, Julie Payette, the morning of Wednesday, September 11th, 2019 to have the writs issued for the federal election, thus beginning the election period.[1] This came in the window between the deadline on Sunday, September 14 and Manitoba’s early Election Day on September 10th. Now that the writs have been issued, it is useful to reconsider what this means for not-for-profits who engage in advocacy. As we have ...
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The Charities Directorate of the Canada Revenue Agency has restarted their in-person educational program for the charitable sector after a being cancelled in 2013 under Prime Minister Stephen Harper. The first Charities Information Session was held in Ottawa the morning of May 28th, 2019. We audited the first class to get a feel for whether we would recommend attending it. If your charitable organization or foundation is considering sending a board member, a treasurer, a ...
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At the National Convention of STEP held in Toronto in June of this year, there was a roundtable with the CRA and one of the questions will have importance to some planners with regard to donations for an alter ego trust to a charity. This is always a highly technical issue and we are reproducing the full question and answer as any attempt to summarize may cause readers to miss some of the nuances. Query: ...
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On Thursday, June 20, 2019, the Senate Special Committee on the Charitable Sector, which was established to review the impact of the voluntary sector in Canada and the federal and provincial laws and policies governing charities and non-profit organizations, released its report, Catalyst for Change: A Roadmap to a Stronger Charitable Sector (hereinafter the “Report”). The Report (190 pages – a tour de force) contains the results of the committee’s 24 public hearings, including the ...
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As lawyers, we are often contacted when a dispute arises amongst members of an association. Inevitably, the dispute will devolve into a review of the legality of the actions of one or both sides. Given that most associations are corporations, there are, in fact, laws which must be followed in order that the authority of the corporation is properly wielded. So, when there is a dispute, it does not take long for a suggestion that ...
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Does your organization send out information about an issue? Does it have a position on that issue? Might that issue become a hot topic in the 2019 Federal election? If so, your organization might unknowingly be election advertising once the writ drops in September 2019. Yes, even if the position is presented in a non-partisan manner. And there are penalties for failing to register as a third-party and follow the rules in the recently amended ...
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Readers of the business news are often treated to headlines that CEOs receive compensation in the multi-millions of dollars. A large portion of this may be cash but, generally when the compensation goes from the absurd to the ludicrous, stock options are involved. Stock options are often given by start-up business to incentivize employees to work in a cash poor business in the hope that it will ‘hit it big’. The drafters of the Income ...
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A recently published CRA memorandum, which despite redactions, appears to refer to a proposed financing scheme at the provincial level will be some substantial interest to secondary educational institutions and may open the door to some private or charitable planning.[1] It has been edited to try to make it somewhat clearer. “This memorandum is in reply to your request for our views on the proposed program for student loans. It is our understanding that the ...
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As of June 1, 2019, the Canada Revenue Agency offers new digital services for charities through their platform, My Business Account (“MyBA”). You, your employee, or your Authorized Representative can do the following tasks online: apply to become a registered charity, a registered Canadian amateur athletic association (RCAAA), or registered national arts service organization (RNASO)Note the online platform is replacing the paper applicationscomplete and file your annual T3010 Registered Charity Information ReturnPaper returns are currently ...
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One of the most common questions asked by the lay taxpayer is for how long they need to keep their tax records. And while there is a legislated answer for this, one wonders whether it is ever safe to destroy records. Paragraph 27 of IC 78-10R5 summarizes the retention periods as follows: for a corporation, two years from the date of the dissolution of the corporation (in the case of corporations that amalgamate or merge, ...
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Social Impact Bonds (SIBs) are an interesting part of the larger trend of ‘impact investing’ that has been rising in Canada and around the world in recent years. An SIB is essentially an investment model that allows a government to fund innovative social programs without having to risk its own assets up-front. The concept is fairly simple but rather ingenious. The government chooses a new social program, partners with an appropriate civil organization, and then ...
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By: Lex Klombies Part II: The Nitty-Gritty on the Canada Elections Act Amendments for Non-Profits and Charities The next Canadian federal election is on October 21st, 2019, and many of our readers are curious about what they need to be mindful of if they engage in public policy dialogue and development activities near election time. Part I of this series was dedicated to helping our readers get a sense of what kinds of charitable activities ...
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Part I: Will My Charity Be Affected by the Canada Elections Act? The next Canadian federal election is on October 21st, 2019, and many of our readers are curious about what they need to be mindful of if they engage in public policy dialogue and development activities near election time. Two major changes to the field of political participation received royal assent on December 13th, 2018: changes to the charities’ political activities rules in the ...
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 By: Arthur Drache More and more often we have been seeing significant payments by businesses to charities, not just modest support of annual campaigns but often payment in the tens of thousands of dollars. The fundamental question which must be understood by both the business and the charity is whether the transfer of funds is in fact a donation or whether it is, to use the common but imprecise term, a sponsorship. In the past ...
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Every so often the media reports that there are people in the world who do not have access to banking services, the so-called “underbanked”. For those of us in Canada, it is almost impossible to imagine such a situation, given the ubiquity of our banks and the plethora of services that they offer. However, for registered charities and for Canadian not-for-profits operating overseas this situation is becoming an everyday reality. Many, if not most, governments ...
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Gifts of Cultural Property – Undoing Heffel By: Karen Cooper As part of a package of measures intended to increase support for Canadian artists and cultural events, Budget 2019 included aimed at ending any lingering uncertainty around gifts of cultural property arising from the Federal Court of Justice’s decision in Heffel Gallery Limited v. The Attorney General of Canada, 2018 FC 605 (“Heffel”).  An appeal of this decision was heard recently by the Federal Court ...
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Supporting Non-Profit Journalism By Arthur Drache As had been promised last year, the Government has moved on it undertaking to support non-profit journalism…a promise which had been viewed as contentious in some circles. But as we had predicted, the mechanism to implement this scheme was to create a new category of qualified donees. The key elements of the plans are: allowing journalism organizations to register as qualified donees; a refundable labour tax credit for qualifying ...
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Another Run at the Social Finance Fund  By Alexandra Tzannidakis The 2019 Budget confirms the creation of a Social Finance Fund, which will make investments of federal capital into organizations that are working to remedy Canada’s social challenges. This project has been in the works for a while, beginning with the 2017 creation of a Social Innovation and Social Finance Strategy Co-Creation Steering Group. This Group, mainly comprised of charitable and non-profit sector experts, delivered ...
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Budget 2019: Housing strategies Lex Klombies Budget 2019 was heavy on housing strategies. Among other things, it claims to modernize the Home Buyer’s Plan, which went 10 years without being increased or even adjusted for inflation. Budget 2019 also proposes to introduce the First-Time Home Buyer Incentive, and to start a $100 million fund for third-parties providing shared equity mortgages. The much discussed stress test for insured mortgages hasn’t gone anywhere. Shared Equity Mortgage Fund ...
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Retail Therapy for Governments by: Adam Aptowitzer Pre-election budgets can be predictable in their spending, but in certain circumstances budgets are predictable because they spend. Budget 2019 falls into this unusual class of retail therapy because government revenues are pouring in yet this is a pre-election budget (and this is a Liberal government). Consequently, extra revenues did not result in tax cuts. but rather in more spending and there are a number of interesting proposals on ...
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Nothing is More Opaque than Absolute Transparency[1] By: Adam Aptowitzer It is no secret that Canada often legislates on the basis of its international commitments. What Canadians often do not realize is that Canada also legislates on the basis of international pressure on it. Such is the case with recent amendments to the Income Tax Act and the Canada Business Corporations Act, which require the disclosure of the otherwise hidden beneficiaries of assets or transactions. We ...
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On April 1, 2018, Ontario Regulation 112/18 came into effect amending O. Reg. 4/01 (Approved Acts of Executors and Trustees, hereinafter “Regulation”) [i] under the Charities Accounting Act (the “CAA”).  The new provisions modify the existing Ontario common law rule that prohibited a charity from making payments to a director (or any person related to him/her) for any reason (other than reimbursement of expenses) without first obtaining a court order. Prior to this charities in ...
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The economic statement tabled by Finance Minister Morneau on November 22 had a couple of welcome announcements which will touch on at least certain parts of the sector. But there was very little detail available about implementation and we suspect that we’ll have to await the next federal Budget to get those details. The Social Finance Fund To encourage innovative approaches to persistent and complex social challenges, the Government is creating a Social Finance Fund ...
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There has been a lot of concern over whether Canadians are saving enough for retirement. One reaction to this is the gradual enhancement of the Canadian Pension Plan, which starts in 2019. Another is the new defined benefits pension plan for the Ontario nonprofit sector, OPTrust Select, which was launched April 2018. OPTrust Select is run by a legal trust which exists at arm's length from both the Ontario Public Service Employees Union (OPSEU) and ...
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Those that have been following the political activities saga will be happy to know that after years of promises, a court case, a blue ribbon Panel, and some annoying dithering the Federal Government has finally tabled legislation in Parliament to allow charities to engage more fully in  ‘Political Activities’. In a previous article on this topic Political Activities…Revisited … Again we explored the history of the issue up to the release of proposed legislation in ...
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One of the clearest items of charity law is that action for the relief of poverty are considered to be charitable.[1] But the ongoing problem for many charities is to try to identify an income level which can be used as a measure of who is poor. This is not always an easy task as most guides dealing with this issue are simplistic in the extreme, not usable in many situations. For example, some years ...
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Much has been written about the recent court case and the subsequent proposed Income Tax Act amendments concerning political activities of registered charities.  Organizations that are not registered charities but just non-profit organizations, may have not given the issue much thought as all, except perhaps, pause to consider if the perceived relaxation of political activities for charities might open the door for charitable registration to non-profit organizations that would not have qualified before.  The answer ...
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Along with tax professionals all over Canada, Drache Aptowitzer LLP has noticed the increasing processing delays in every department of the Canada Revenue Agency (CRA). The backlog can be extreme. In the last three years, the processing time for charitable applications may have as much as doubled. And there have been similar delays in resolving even minor tax disputes. We know this backlog at the CRA is frustrating to our clients. Many of our clients’ ...
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One of the most important aspects of operating a non-profit is to have a board which can give direction to the organization. Without being comprehensive in terms of board duties, it must set policy, manage investments, handle personnel issues, raise funds and make strategic decisions, both long term and short term. But it should be pointed out that every board need not deal with every issue. A fully funded organization need not worry about fundraising ...
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Readers of a certain age will recall the damage and the aftermath of Hurricane Katrina.  Hurricane Katrina hit the Gulf Coast of the United States in August 2005.  In the aftermath of the Hurricane the levees in New Orleans broke and flooded much of the city.  The damaged areas were primarily the poorer parishes of New Orleans which mean that those most affected by the hurricane were of low income. There was a great deal ...
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Kids are expensive. There’s no doubt about that. The Canadian government provides a small subsidy by allowing a limited amount of child care expenses to be deducted from income taxes. In 2016, Mr. Kwan had a 10-year-old and a 12-year-old. He and his spouse enrolled their kids in a large number of activities, including chess programs, math tutoring classes, Chinese language classes, a ski class, and a summer camp. The couple also hired multiple babysitters ...
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A recent Court decision and the response to the decision by the Canadian Cultural Property Export Review Board (“CCPERB”) have significantly impacted the criteria that certain donations have to meet in order to qualify as cultural gifts within the meaning of the definition in subsection 118.1(1) of the Income Tax Act (“ITA”). In mid-June, the Federal Court of Justice issued its decision in Heffel Gallery Limited v. The Attorney General of Canada, 2018 FC 605 ...
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The issue of charities engaging in political activities has been a hot item since 2012. In that year the Harper Government gave $8 million to the CRA Charities Directorate to begin what has been termed the “political activity audits”. Budget 2012 also tightened up the political activity rules which were already in place. It is important to remember that this discussion begins with the Scarborough Legal Services case in 1985 which held that activities intended ...
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By:  C. Yvonne Chenier, Q.C. Recent Court cases have reinforced my belief in the importance of the wording of governing documents of charities and not-for-profits organizations. Whether it is trying to ascertain what the members have agreed to in the rules of membership, the specific procedures contained in bylaws or the actual wording of the often outdated charitable purposes of a registered charity, the words used (or not used) are in focus when a dispute ...
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By: Adam Aptowitzer A recently released decision of the Tax Court of Canada illustrates some of the problems with donations of gifts in kind and their valuation. Donors typically accept the valuation on receipts as accurate. For donations of cash this is not a problem - particularly where the donation is one of cash. However, where the donation is a gift in kind (i.e. a gift of an item rather than cash) the valuation of ...
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By: Arthur Drache In mid-July, Mr. Justice Ed Morgan of the Ontario Superior Court of Justice determined that the Income Tax Act legislation and the CRA’s administrative practices relating to political activities of charities was contrary to the Charter of Rights when restrictions were applied to the (non-party partisan) political activities of charities.[1] The decision creates some huge problems for the federal government which is now faced with (a) lodging an appeal or (b) amending ...
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 By: Alexandra Tzannidakis With the Ontario general election coming up on June 7, registered charities should take a moment to review the restrictions on political activities. It is key to remember that registered charities are totally prohibited from engaging in partisan political activities. They can only engage in non-partisan political activities, and only to a limited extent. The CRA’s Advisory on partisan political activities[i] is a succinct refresher on the existing policy[ii], and in fact expands on it ...
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By: Adam Aptowitzer For many years tax and charity professionals calculated the after tax cost of a donation based on certain principles. One of those principles was that, at the top brackets both Federally and Provincially, the credit for the donation offset the tax owing for a dollar of income earned and then donated. As the so-called 1% movement became more vocal, governments felt they had a license to tax higher income earners (although they ...
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By: C. Yvonne Chenier The title for the mid-day address of the Canadian Bar Association Charity Law Annual Symposium is usually the “CRA Comes to Lunch”. Lunch is served before we hear from the Director General, Charities Directorate, Canada Revenue Agency. At the May 11, 2018, Symposium, the morning sessions focussed on revisiting the meaning and impact of the case of Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., [1999] 1 S.C.R. 10, ...
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The following question was asked of the CRA by the Tax Executive Institute in connection with its December 5, 2017 liaison meeting with CRA representatives.  If the CRA is ultimately unwilling to provide the administrative concession described in the question below[1], would the Department of Finance be willing to consider a legislative amendment to the same effect? “An employer is generally required to withhold and remit tax on stock option benefits realized by an employee ...
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