Popular Myths of Charity Governance

Misconceptions about the legal requirements of Charities pervade the general public, creep their way into the media and impact charity governance and management. Below are a few such myths followed by a debunking overview.

Myth #1:  Charities Can’t Engage in Revenue Producing Business Transactions Such as Selling Goods or Services

In general, Charities are free to sell goods or services for income to support their mission if it is a related business.

Myth #2:  Charities are forbidden from Running a Yearly Surplus

Although charities cannot distribute surplus funds to board members or employees, and do not have share-holders, owners, or partners as do various types of business entities, they can run a yearly surplus.  With surplus funds, a Charity can:  1) Carry the funds over to use as revenue for a future year’s budget on any allowable expense; 2) Hold the funds in savings as “reserves;” 3) Set it aside for a future major expense; or 4) Invest the funds with the goal of procuring additional currently expendable revenue.

Myth #3:  CEO/Executive Directors Cannot Sit on a Charity Board

Employees of a Charity may sit on the board of directors/trustees, but it is recommended that a board “not be dominated” by employees, as by their nature they are not independent since they have an employment relationship with the organization, which would pose a conflict of interest on many board decisions.

Myth #4:  Charities Cannot Pay Employees Competitively

Although some Charity corporations facilitate their mission entirely by relying upon volunteers, there is no regulatory bar to paying employees in order to attract and retain talented personnel for the sake of executing the mission.  In fact, most charities will not be able to sustain themselves without paid staff. However, the CRA requires that employees be paid reasonably according to “the amount that would ordinarily be paid for like services by like enterprises, whether taxable or tax-exempt, under like circumstances.”  Charity executive compensation is especially subject to regulatory and public relations scrutiny, and thus boards of directors should follow and document governance best practices in setting executive compensation.

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8 Critical Provisions to Include in a Joint Venture Agreement

The parties to a Joint Venture Agreement should have charitable purposes which are similar. The constating documents of both parties should be reviewed by counsel to ensure this similarity exists.

Key provisions that must be included in a Joint Venture Agreement are:

  1. Management Committee: The agreement should set out the rights of each party contributing to the activities of the Joint Venture to appoint representatives to a governing body. The rights and duties of the management committee should be clearly outlined, and should include:

    1. Keeping proper records;

    2. Keeping proper financials;

    3. Prepare a budget for approval by the various parties;

    4. Identify projects; and

    5. Monitor project progress.

  2. Voting Control: Some agreements provide for voting rights in proportion to the respective contributions of the parties. Many agreements require that all issues are to be determined by a 2/3 majority vote.

  3. Meetings of Management Committee: This item covers notice requirements, frequency of meetings, and electronic meeting options.

  4. Reporting Obligations: this provides that the minutes of the meetings are to be forwarded to the parties.

  5. Financial Statements: Financial statements should be provided to all parties, including disclosure of all funds received and how they were disbursed..

  6. Term: A provision that sets out how and when the Joint Venture is terminated.

  7. Financial Arrangements: The manner in which capital assets are to be contributed should be included.

  8. Liability: When possible, the consequences and costs of inappropriate misconduct of one party should be attributable to that party only and should not implicate the partners to the Joint Venture.


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What is the Difference Between a Charity and a Not-for-Profit Corporation?

While most charities are incorporated as Not-for-Profits, most NFPs are not necessarily registered charities.

The two are defined differently under the Income Tax Act, as follows:

  1. Tax Receipts: Charities may issue official donation receipts for income tax purposes; Not-for-Profits may not issue tax receipts.

  2. Tax Exempt: Registered charities are tax exempt. Non-profits are exempt from paying income tax, but may be taxable on property income and capital gains.

  3. Tax Return: Charities must file form t3010 with 6 months of their fiscal period end. Not-for-Profits however must file a T2 return, also within 6 months of their fiscal year end.

  4. Registration: Charities must apply to the CRA-Charities Directorate, by filing a form t2050, to be approved for registration as a charity. There is no registration process for Income Tax purposes for Not-for-Profits.

  5. Purposes: Charities must be established exclusively for charitable purposes (i.e., relief of poverty, advancement of education, religion, or other purposes beneficial to the community. Not-for-Profits however can operate for civic improvement, recreation, sport, social welfare, or any other purpose except for profit.

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The Federal Government is Donating to Charities

The CRA sent the following email to all Registered Charities today.

Recent news and updates:

Attention all registered charities! Public Services and Procurement Canada (PSPC) is inviting registered charities interested in receiving donations of surplus goods from the federal government to identify themselves.

PSPC is seeking charities interested in the following items:

Entertainment itemsGames and toysClothing, footwear, outerwearOutdoor equipmentHousehold itemsFurniture

To participate, complete the Request for Information questionnaire currently posted on theBuyandsell.gc.ca site by August 30, 2019. The information you provide will help PSPC determine the demand for donations and evaluate the viability of a program for donating Government of Canada surplus goods.

For any comments or questions, please contact Julia Caughey, Project Manager, PSPC, at julia.caughey@tpsgc-pwgsc.gc.ca.

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How Not To Run a Registered Charity

When you're starting a charity, most people have really good intentions.

Feed the people. Clean up the river. Save the snails.

But sometimes along the way, things can get sort of…wonky. The original reason you wanted to start a charity is still there, but you can get distracted from the mission by other things.

Like money. That's a big one.

Sometimes charities cross that fine line from fairly compensating employees and vendors, to setting themselves up to benefit certain individuals.

And let me tell you – that's a major no-no.

Take the NRA for example.

There was some internal board conflict within the NRA. Board President, Oliver North, was forced to resign after he called for the termination of NRA CEO Wayne LaPierre. Ollie threatened to release not-so-flattering info about how LaPierre was spending the charity’s dollars and a flurry of lawsuits followed. What a mess.

In the fallout from the board scuffle, the media is now scrutinizing the NRA's financials more than they were ever before, and they found things like….

·         Payments to 18 of their 76 (76!?!) board members between $11,000 and $3,100,000!

·         The org bought an “undisclosed” amount of ammunition from a board member's company

·         $39,000 for LaPierre’s one day shopping spree a Beverly Hills clothing boutique

·         And so much more!

All paid for from member dues and charitable donations made to the NRA.

The NRA’s outside counsel – of course – says all these payments to insiders were in line with IRS regs and conflicts policies. (And maybe that’s true – they paid their outside counsel $24 MILLION in just over a year so I’d sure hope they’re compliant!!) But it stinks to high hell anyway from a PR perspective.

This is the PERFECT example of how people problems (the board squabble) lead to public relations nightmares. Even if it comes out that everything they did was “legal,” the NRA is losing the in court of public opinion.

This…is really bad. Charities exist to serve a public good and to carry out their mission, NOT to benefit any one person (especially if those people serve on the board).

PR and public image are super important for charities, big and small, and it's something I try to make all of my clients aware of. Yes, I can find you a loophole or a legal way to do something (probably) but what happens when somebody shines a light on what you’re doing? It’s not a good look.

You can't just follow the law – you have to make the right choice for your mission and for the public you serve, every time.

So with your new org, learn from others that came before. While you might not aspire to be the NRA – in politics or in size – know that lots and lots of orgs have made these mistakes (hear me talk about the slip-up Brad Pitt made here).

Remember the mission is the reason you're doing this. Keep that as your motivator. Always. Do that and you'll do great!

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Housing for Persons with Disabilities - How the CRA Will Determine if it's Charitable


The provision of housing is charitable under the fourth category of charity, other purposes beneficial to the community.

Providing comfortable, modest housing that includes specially adapted facilities, services, or other amenities can provide eligible beneficiaries with relief from conditions associated with mental or physical disabilities, or conditions associated with the aged. The organization must ensure that this type of housing helps beneficiaries overcome or manage their particular conditions.

Eligible beneficiaries of specially adapted housing that relieves conditions attributed to being aged, or to alleviate conditions associated with disabilities, need not be poor. However, providing them with specially adapted housing must not result in private benefit that is not necessary, reasonable, and proportionate to the resulting public benefit. This usually means that eligible beneficiaries that are not poor should pay the fair market value they would otherwise have to pay for similar accommodation that is not specially adapted to relieve conditions associated with disabilities.

When you apply to the CRA for Charity Registration, as an organization providing Housing for Persons with Disabilities, make sure that you answer the following questions in the Form t2050:

- Description of all services and associated amenities provided by the organization to eligible beneficiaries, including how the services and amenities are adapted t meet the beneficiaries' conditions

- The process/criteria used to select beneficiaries;

- The duration of time that an individual may stay at the facilities;

- The number of individuals who carry out the applicant's activities, including their qualifications and credentials

- Details regarding the ownership of the housing facilities;

- The process used to determine rental rates;

- Where the availability of housing is advertised;

- The time-frame for when the applicant intends to start this program;

For a more detailed overview of this charitable purpose, please click here.

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Don't Let Your Good Deeds Get Punished


The proverb "No good deed goes unpunished" is one the charity space is all too familiar with. The rules and regulations around supporting your mission are seemingly never ending. 

One minute you are just trying to fund raise so you can support your mission, the next you get caught up in one of the legal pitfalls that can accompany a cause marketing campaign.

What is cause marketing?

You have probably encountered an advertisement offering to donate a portion of proceeds from sales of small items to charity, or had a cashier at a LCBO ask you if you want to donate to a certain charity at checkout.

This type of fundraising—commonly called “cause marketing”—is known as a “commercial co-venture” arrangement in the legal field and can present invisible pitfalls for the unwary.

Cause marketing is projected to be a $3 billion industry for 2019.  Among North American consumers, 56 percent say they have bought a charity-related product in the last 12 months; and those numbers are even higher among millennials (66 percent).  Consumers are about 5-10 percent more likely to purchase a product than they were to make an outright donation.

Given these numbers, any charity would logically conclude that partnering with a for-profit business in such an arrangement would be an excellent opportunity. 

However, there is some risk to the charity.

Use of its name, branding and/or logo without the proper permissions in place could cause the charity to lose its rights; worse, even with proper permissions, if the for-profit partner were to suffer a public embarrassment or setback, it could reflect poorly on charity too.

Further, since the for-profit will get a tax break for its “donation” to the charity through the sales arrangement, an unscrupulous business could seek to exploit a charity through an unfair distribution system or by trying to get free advertising out of the deal.  

What's a charity to do?

1.      Some will blow off the repercussions and go forward anyways;

2.      Some will get paralyzed by all the pitfalls and not run a campaign at all;

We recommend a 3rd option. Get competent accounting and legal advice before getting too far into campaign planning. It's better to work on the issues well in advance of any campaigns you have planned for 2019 and beyond.

A charity looking to enter into a cause marketing or commercial co-venture situation should seek competent accounting and legal advice first.

Let us know how B.I.G. Charity Law Group can assist in your good deeds without them getting punished. 


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THE $3,500.00 MISTAKE


Applying for tax exempt status from the CRA – it’s a really important step in starting a charity, right? 

So why is it that I meet SO many founders who have tried to do it themselves? Or trusted a paralegal or even a corporate lawyer with zero experience in charity law do it for cheap?

I get it – the prospect of hiring someone to do this is expensive and daunting. But things can get really hosed up if it isn’t done right.

We were recently contacted by a prospective client who had hired a prominent law firm in North Toronto about a year ago, who while experts in corporate law, have zero experience in Not-for-Profit Law and Charity Law.

Predictably enough, after incorporating in Ontario (first mistake), with improper wording in the Letters Patent (second mistake), the lawyers at this firm drafted bylaws for the wrong legislative jurisdiction (third mistake), and filed the form t2050, listing activities that are not charitable under the Income Tax Act. This is just a partial list of the many errors.

Our prospective client did a bunch of work and made some huge progress for the new organization. Everything seemed to be going great, until...

A year after beginning the process, and many thousands of dollars out of pocket, our client was informed that “regretfully, the CRA has rejected the application”.


Did the law firm offer our client her money back? Nope.

Would this application have been approved by the Charities Directorate? If done properly, yes!

That was a $3500 mistake, all for not hiring a lawyer proficient in Not-for-Profit and Charity Law.

This lady is a smart, capable person. She had NO way to know that the consequences could be so drastic.

Don’t let this be you. The charity application can be tricky and confusing, and it’s just too easy to get yourself into this kind of situation. 

Googling every question won’t get you to a point where you understand what you’re doing on these forms either. There’s just too much for a person to absorb everything.

You need an expert, someone who knows the ins and outs of Not-for-Profit Law and Charity Law. And you need help with the key questions (things you don’t know you should be asking) before you even get incorporated. 

When you don’t have the right road-map, the mistakes add up and the cost multiplies.

My advice to founders? 

Get someone to help you through this process.

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Paying Directors of an Ontario Not-for-Profit (Non Share Capital Corporation)


Conventional wisdom, espoused by many Ontario lawyers and NFP practitioners, has often postulated that it is not lawful for an Ontario Not-for-Profit Corporation to pay remuneration to Directors for serving as such.

But this is incorrect.

In the case of a Not-for-Profit Corporation that is not a charity, there is no restriction preventing payment to Directors for their services as Directors, unless a restriction to that effect is expressly found in the Letters Patent, Supplementary Letters Patent or the By-laws.

Note the universal caveat - that actions taken by the Directors must be in the best interest of the Corporation - applies just as much to this issue as to any other.

If there is no restriction in Letters Patent or Supplementary Letters Patent: all that is required is a bylaw, enacted by the Directors and approved by the members, that authorizes such payment.

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How Long Does It Take To Register a Charity?


According to the Charities Directorate, a straightforward application for Charity Registration takes 2 months (see here). In reality, this turnaround time is seen in only about 1% of charity applications.

For the vast majority of Charity applications, where the CRA (Charities Directorate) has follow up questions, the stated turn-around time is 6 months, though in reality it is closer to 8-10 months.

If you are hiring a lawyer to file your charity application, it is critical to ask him/her how long it will take, from the date he/she is retained, to file the application with the CRA. We have heard from clients, who originally retained other law firms, how their application took many months until being filed, despite much importuning to hurry and submit the application for review. 

This is very unfortunate, as Charities who are not registered may not issue tax receipts, thereby limiting their fundraising options and limiting their opportunity to provide assistance to others.

If you want your Charity Application submitted super fast, generally within 1-3 weeks of being retained, call us today at 416.900.0379 or email: charity.advice@biglaw.ca 

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How to Best Structure your Charity?


Charities are generally structured in one of two ways. Below are some of the pros and cons of each structure:

The form of a charity will generally be:

1. an unincorporated association;

2. a Not-for-Profit corporation incorporated under either federal or provincial legislation.

Considerations in determining which structure to use

Formality: Corporations are more commonly recognizable entities, where directors and potential donors are more comfortable with their structure.

Dissolution: It is easier, quicker, and less costly to dissolve an Association than it is to dissolve a NFP corporation.

Liability: Directors of a NFP corporation are generally protected from liability (they should nonetheless purchase director’s insurance), whereas Directors of an Association are exposed to being sued.

Contracts: Contracts with a NFP corporation are entered into in the name of the corporation, whereas contracts entered into with an Association, must bear the names of the members of the Association.

Real Estate – Generally, a charity which holds real estate must be incorporated. Further, an Association cannot hold real estate in its own name, but in the name of it’s Trustees. At the passing of the Trustees or when they resign, the property would have to be re-registered.

Procedures: There are established administrative procedures for Not-for-Profit corporations in connection with their creation and ongoing administration whereas Associations do not have established guidelines in relation to their creation and administration.

Governance: The law governing corporations is established and legislated, whereas the laws related to Associations are a lot less established and most lawyer are unfamiliar with the relevant laws.

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A By-laws Checklist


Q. At minimum, what should a comprehensive Not-for-Profit bylaws look like?

A. Non-Profit By-laws should cover the following:

  • The organization’s purpose

  •  A description of the membership

  •  A description of the board composition and governance structure

  •  Location of head office

  •  Terms of office for board members

  •  Number of meetings held by the board, including Annual General Meetings

  •  Special meetings and in-camera meetings

  •  The number and a brief description of any standing committees and the process for appointing a committee chairperson

  •  Description, title and responsibilities of Executive Directors (if applicable)

  •  The election and voting process

  •  Details about quorum

  •  Filling board vacancies

  • Removal of directors

  •  Senior staff positions

  •  Making amendments to bylaws

  •  Required reports and legal filings

  •  Charitable status

  •  Details about fiscal year

  •  Bank accounts, financial obligations, funders

  •  Conflict of interest

  •  Indemnification

  •  Disbanding the organization and disbursement of funds and capital assets

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Charity Registration when Providing a Public Amenity


Organizations established to provide public amenities can qualify for registration.

However, they must generally restrict their activities to providing and maintaining the facility.

Although it may organize some of the activities taking place therein, if the applicant is mainly involved in planning the activities, it becomes a provider and promoter of those activities. In that case, for the organization to qualify for registration as a charity, all of the activities it offers must be furthering a charitable purpose.

When receiving such an application, the CRA will require clarification regarding:

·         the programs the applicant intends to carry out itself;

·         their frequency (in comparison to the frequency of renting out space to third party organizations);

·         a detailed breakdown of the associated expenses (and corresponding revenue where applicable);

·         a sample schedule of programs/events.

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ONCA is Coming! What Should We Do?


Not-for-Profit Corporations in Ontario facing the prospect of ONCA coming into law in the next couple of years have 3 options at the Present:

  • Wait for ONCA to come into force and then make the necessary changes. This is what most Ontario Non-Profits will do;

  • Make changes now and update the governance documents. The problem with going this route is that further changes will likely be required once further details of ONCA are released and the legislation comes in force.

  • Move from the Ontario corporate jurisdiction to the Federal corporate jurisdiction.

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Will an Organization offering Career Counseling be Registered as a Charity?


Activities which

  1. relieve unemployment of individuals who are unemployed or facing a real prospect of imminent unemployment; and

  2. are shown to need assistance

may be charitable if they directly further one or more of the charitable purposes. Examples of activities that relieve unemployment include:

  • providing employment-related training;

  • providing career counseling

  • providing assistance with resumes;

  • preparing for job interviews establishing lists of available jobs.

Providing employment-related training can also be charitable.

Generally, employment related training must not be limited to a specific employer, because this could result in an unacceptable private benefit to the employer.

However, exceptions may be possible in areas of social and economic deprivation. Examples of employment related training activities for eligible beneficiaries include:

  • employability training;

  • entrepreneurial training;

  • and on-the­ job training.

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Qualify as a religious Charity


To qualify as a religious charity, an organization must advance religion in the charitable sense.

This is understood by the Charities Directorate to mean that the charity is involved in advancing religion in the following three ways:

1. a doctrice that there is a god(s), or supreme being(s) (a theistic doctrine);

2. a doctrine that adherents must worship or revere that god or supreme being (a worship doctrine);

3. a particular and comprehensive system of faith and worship;

Not all activities conducted in the name of religion advance religion in the charitable sense. 

Activities that directly further an advancement of religion purpose must be:

1. clearly and materially connected to the religion's teachings, doctrines, or observances; and

2. constitute a targeted attempt to manifest, promote, sustain, or increase belief in the religion to or by adherents or the public.

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T3010 Filing Reminder


The CRA sent out the following email last week to tens of thousands of charities with filing deadlines of June 30th:

The deadline for filing your charity’s information return is fast approaching! It is due at the latest on June 30, 2018. If you have already sent your return, disregard this email.

The Income Tax Act requires that registered charities file a complete Form T3010, Registered Charity Information Return, and financial statements within six months of its fiscal period end. This requirement applies whether your charity was active or not during this fiscal year.


In the last two years, over 1,200 charities lost their registration status because they did not file their information return. If your charity’s return is not filed on time, its registration could also be revoked.

For more information about the information return and the filing obligations, go to cra.gc.ca/charities.

If your charity no longer wants to be registered, it must send a letter to the Canada Revenue Agency (CRA) asking to revoke its registration. For more information, visit our website.

Mail to:Charities Directorate
Canada Revenue Agency
Government of Canada
Ottawa ON K1A 0L5

Fax to:613-957-8925

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When can a health-oriented organization be registered as a Charity?


The courts have held that the promotion of health can be charitable. The promotion of health in the charitable sense means directly preventing or relieving mental or physical health conditions. 

As an example, to qualify under the promotion of health, an organization can carry on activities that involve diagnosing and treating identified health conditions. In addition, all health care services and products provided by a registered charity must meet the applicable requirements relating to effectiveness and quality and safety.

In most cases, to be considered effective, health care services or products must be shown to: 

  • eliminate the presence of or

  • reduce the symptoms of an identified health condition or

  • or prevent injury or

  • prevent loss of life.

To demonstrate effectiveness, an organization must show that the service or product has been clearly recognized by Canadian provincial, territorial, or federal health authorities or by the Canadian Medical Association. Or, the health care service or product must be recognized by at least three licensed physicians who are certified in a related area of medicine and who are not connected to the organization. The quality and safety requirement, on the other hand, consists of the standards normally expected to be met by a health care provider in Canada or standards normally applied to health products.

In regards to providing health care services, services that are eligible for coverage under the Canada Health Act or for coverage under any provincial or territorial medical insurance service plan in Canada will generally be considered to be charitable. If not, health care services will be recognized as furthering a charitable purpose only if the organization can show that they directly prevent or relieve a physical or mental health condition and meet the applicable requirements relating to effectiveness, and quality and safety. 

For more information, see Here

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Should a Charity incorporate as a Not-for-Profit?


Q: When considering the organizational structure of my new charity, what factors should I take into consideration regarding the decision to incorporate the charity or not?

A: Charities can operate within different structures:

  • As an incorporated entity under federal legislation

  • Operate under a specific provincial incorporating act

  • Chartered by a special act of Parliament or of a provincial legislature.

  • Operating without incorporating.

The appropriate organizational structure for each charity will depend on its specific needs, circumstances, and activities.

Deciding on the organizational structure is an important decision that each group needs to weigh carefully. Before proceeding with a final decision on organizational structure, it is advisable to consult with a lawyer who has experience in corporate matters relating to charities, and who can advise whether formal incorporation or another form of organizational structure would be more appropriate.

Here are some issues to consider:

  • The corporation is a separate legal entity. It is an artificial person having an independent existence distinct from that of its members. The corporation owns property in its own name; acquires rights, obligations, and liabilities; enters into contracts and agreements; and has the capacity to sue and be sued as would a natural person.

  • As a separate legal entity, a corporation is not affected by changes in its membership and its existence continues in perpetuity unless its members or the government take steps to dissolve it.

  • Incorporation also offers certainty as to ownership of assets because, being a separate legal entity, it has the right to own property in its own name. In unincorporated charities, ownership vests in the name of individual trustees or in some cases, the “membership.” This may give rise to confusion or conflicts when it comes to selling or transferring property if those individuals are not clearly defined or agreed upon.

  • Since an incorporated charity is a separate legal entity, its obligations and liabilities generally do not become those of its members.

  • In addition, incorporation does not immunize a director from exposure to personal liability if he or she fails to meet their legal duties and standard of care as fiduciaries.

  • A charity that is incorporated must meet certain requirements under the incorporating law. These may include the requirement to file returns with the appropriate incorporating authority.

  • In addition, an incorporated charity may be required to appoint an external auditor to prepare audited financial statements on an annual basis.

  • The fees to incorporate are generally higher than if the charity is organized as an Association.

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Who may serve as a Director of a Charity?


One of the most commonly overlooked mistakes in completing the Form t2050 Charity Application is appointing an ineligible individual to the Applicant’s Board of Directors.

The Income Tax Act states that the CRA may refuse to register a charity that has applied for registration as a registered charity if an ineligible individual is a director or manages the charity, whether directly or indirectly.

What is an ineligible individual?

Subsection 149.1 (1) of the Act defines an "ineligible individual," as an individual who, at any time, has been convicted of a relevant criminal offence.

"Relevant criminal offence" means:

a. relates to financial dishonesty, including tax evasion, theft and fraud, or

b. in respect of a charity, is relevant to the operation of the charity.

It is thus critical that before setting up your Board of Directors, that you ascertain that all those in positions of authority in the Charity be squeaky clean of any crimes which could jeopardize your application.

If you are unsure about whether a specific crime disqualifies one of your directors, give us a call at 416-900-0379 or email us at charity.advice@biglaw.ca and we will gladly advise.

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