On May 6, 2019, the Canadian Bar Association hosted its annual Charity Law Symposium in Toronto. In attendance were many of the lawyers that form the charity law bar in Canada, as well as members of the planned giving and philanthropic communities, ready to learn the latest legislative and legal developments relating to charities and non-profit organizations.
The overarching theme of the symposium was charities have both “private” and “public” aspects. In some ways, charities are treated as private organizations able to make internal decisions free from constraints associated with public bodies. However, charities are generally considered as providers of public benefit, many are closely tied with “public bodies” and functions that have come to be associated with government, and nearly all charities interact and communicate in the public sphere to advance their charitable purposes.
Brittany Sud of Fasken Martineau reviewed a number of cases. Of note, the decision of the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses v. Wall, where the court upheld the ability of a congregation to discipline a member on religious grounds free from judicial interference. In contrast, the same court in Trinity Western University v. Law Society of British Columbia, upheld the decision of the BC law society to refuse accreditation to TWU because of its religiously-motivated standards imposed on all students. These two cases highlight well the difference between the “private” and “public” aspects of charities.
Several speakers addressed how charities are regulated under public law principles. Dr. Kathryn Chan of UVic provided an overview of the connections between registered charities and public law, including constitutional jurisdiction to regulate charities, to tax law enforced by the Canada Revenue Agency. My Norton Rose Fulbright colleague Margaret Mason and Rick Smith of the Broadbent Institute shared experiences from the previous government’s audit project of certain registered charities, which led to a sector-wide chill on public advocacy and led to the recent decision of the Ontario Supreme Court in Canada Without Poverty v. Canada (AG), which has had a significant sector-wide impact and was a focus for several speakers, including a presentation by David Porter of McCarthy Tetrault, who was lead counsel for Canada Without Poverty in the charter challenge.
For those who are not aware, the court found that limitations in the Income Tax Act on charities’ “political activities” which had the effect of limiting charities’ ability to carry on public advocacy activities in pursuit of its charitable purposes, was an unjustifiable limitation of charities’ freedom of expression, contrary to the Canadian Charter of Rights and Freedoms. Since that decision, the federal government has revised the legislation to permit without limit all non-partisan, public advocacy by charities provided it is connected to their charitable purpose. More information about the decision and the legislative amendments here and here.
Several other excellent presentations on charity law issues were made, including public interest journalism and donor advised funds, and each is deserving of its own detailed article. The symposium also was pleased to hear remarks from Tony Manconi, Director General of the Charities Directorate of CRA on the ongoing efforts of CRA to work with charities to improve services and compliance. Lastly, the Jane Burke-Robertson Memorial Award for contribution to the charity bar was awarded to Terry Carter of Carters Professional Corporation. Well deserved!
As ever, the symposium provided the most in-depth and topical review of legal developments for charities of any conference in Canada. I encourage more of you working the sector to make plans to attend next year. I know I will.
Michael Blatchford is a partner at the global law firm Norton Rose Fulbright. He works exclusively with charities, non-profits, donors and social enterprises on all matters legal and regulatory.
