Tax & Law

Protect your organization: Canada’s Anti-spam Legislation coming July 1, 2014

Staff Post
By Anna Mathew, Knowledge Associate

CASL (Canada’s Anti-spam legislation) will become law July 1, 2014. What does this mean for your organization? It means that you can no longer send commercial email to recipients without their consent. Organizations (and individuals) who send unwanted commercial electronic messages (CEMs) are subject to serious financial penalties ($10M for organizations and $1M for individuals). Directors and officers of an organization may also be liable.

There are two types of consent: implied and express. Implied consent is based on a current business relationship (such as a customer or client), and is subject to expiry depending on the changing nature of the relationship over time. Express consent is based on the recipient of a CEM having provided explicit consent to receive the communication, typically through an online sign up. Express consent does not expire, unless the recipient unsubscribes.

The legislation covers other requirements, in addition to the issue of consent, including providing a conspicuous and simple unsubscribe process, and providing clear identification and contact information about the email sender, as well as what classifies an email communication as being ‘commercial’.

One silver lining for charitable organizations: emails sent for the purpose of fundraising are exempt from CASL.

You can read more fully about CASL here on the CRTC website and here on the Government of Canada website.

What does your organization have to do to be compliant with the legislation?

  1. Secure implied or express consent from CEM recipients (BEFORE July 1, 2014). The simplest way to do this is to contact your list and provide them a link to provide their express consent and/or provide their contact information.
  2. Maintain records about who has provided consent. The onus is on the sender to prove consent.
  3. Do not send CEMs to anyone who has not consented to receive them.
  4. Provide an unsubscribe option.
  5. Identify your organization as the sender and provide contact information.

Here are some further resources on how to become CASL compliant:

Miller Thomson – Countdown to CASL

Borden, Ladner, Gervais – CASL: Impact on C’harities and Not-for-profits

Borden, Ladner, Gervais – Not-for-profit and Charity Law in Canada Blog

Ontario Arts Council News – Arts Organizations Note Canada’s Anti-Spam Law – Effective July 1

Hillborn – Canada’s Anti-Spam Legislation in force this July – will you be ready?

Ontario Nonprofit Network – Canada’s Anti-Spam Legislation and Your Nonprofit

Imagine Canada – Update and clarifications on Canada’s Anti-Spam Law

CRTC – Canada’s Anti-spam legislation 

Government of Canada – Fight Spam: Canada’s Anti-spam legislation

T4A’s: Should we or shouldn’t we?

Staff Post
By Heather Young

According to the Canada Revenue Agency, fees for services provided by contract staff should be reported on a T4A slip in Box 048.

CRA’s Guide – titled RC4157 Deducting Income Tax on Pension & Other Income, and Filing the T4A Summary – directs payers to: “Enter any fees or other amounts paid for services. Do not include GST/HST paid to the recipient for these services.”

A couple of observations.

The CRA makes no distinction regarding who provided the services. Many companies assume T4A slips are for freelancers – but that’s not what the Guide says. An email to the Canadian Payroll Association’s InfoLine confirmed that incorporated businesses should also receive T4A slips.

And for sure HST registration makes no difference! Every year, clients’ contract staff tell Young Associates bookkeepers that they don’t want a T4A slip because they have an HST number. Whether or not a contractor charges HST is irrelevant to the payer’s T-slip obligation.

Make no mistake: this has nothing to do with individual preferences. Our job is to do our best to help our clients – the payers – comply with the Income Tax Act.

We hear all sorts of variations from payers too. Some companies are willing to issue T4As to freelancers who work under their own name but not to those who have a company name. Other organizations make apparently arbitrary decisions; for instance, that they’re willing to issue T4As to actors but they don’t want to generate slips for technicians.

Indeed, there’s a lot of confusion out there – and, to boot, a tacit acknowledgement on the part of the CRA that the T4A requirement is unclear.

CRA’s Guide RC4157 goes on to say: “Currently the CRA is not assessing penalties for failures relating to the completion of box 048.”

We don’t take this as a blanket pass for organizations to do whatever they want – and we don’t think you should either.

The wisdom from the Canadian Payroll Association – experts in the field – is that organizations should implement a process for issuing T4A slips to contractors so that when the CRA provides clear guidance they are able to comply immediately.

We can add to this some experience of payroll audits, where CRA examiners have scrutinized companies’ practices around T4A slip preparation.

Young Associates’ position is that clients need to work with their auditors and boards to interpret the Guide as best they can for their own situation. We always advocate for CRA compliance – and, if anything, for a more conservative interpretation that protects you from unwelcome attention from the government.

We appreciate comments on this post, although please note that Young Associates specializes in services for organizations. If you are an individual with a question about a T4A issue related to personal tax, we suggest that you contact a bookkeeper or accountant who prepares personal tax returns. 

ONCA proclamation delayed to January 2014

Staff Post
By Anna Mathew

The proclamation of the new Ontario Not-for-Profit Corporations Act (ONCA) has been delayed. No official date has been set, but it will not be proclaimed prior to January 1, 2014.

Visit the Ontario Nonprofit Network website for more information on the delay and other ongoing developments with ONCA.

What’s the difference between holiday pay and time in lieu?

‘Holiday pay’ and ‘Time in lieu’ are actually very different. Holiday pay is pay for ‘standard’ holidays, either public or at least consistently recognized by the employer. Time in lieu is paid time off in exchange for overtime work.

Holiday pay is pay for days that an employee doesn’t have to work, because they are public holidays. In Ontario, these days are: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, and Boxing Day. Public holidays vary in different jurisdictions. Also, some employers choose to provide holiday pay for days which are not official public holidays, but are frequently observed. For example, in Ontario, employers often acknowledge Civic Holiday the first Monday in August. Public holiday pay is based on the previous four weeks of work, and can be calculated here. The calculation i:s (regular wages from 4 weeks previous + vacation pay from 4 weeks previous) / 20. You add up the last month of earnings and divide by 20 because there are 20 working days in a normal month.

In the entertainment field — and others — it’s not uncommon for employers to ask their staff to work on a public holiday. Employees have the option to agree in writing to work the day and receive either public holiday pay plus premium pay for the hours worked on the holiday OR their regular rate plus holiday pay on a ‘substitute’ day off. In this case, the holiday rate would be calculated on the four weeks previous to the substitute holiday, not the original holiday. Some jobs do not entitle employees to take public holidays off. More details on public holiday pay in Ontario can be found here.

‘Time in lieu’ is paid time instead of overtime pay. The Employment Standards Act sets out rules on overtime pay; in most cases it is time-and-a-half (1 ½ times regular pay) for hours worked beyond 44 in a week. An employee and employer can agree in writing to time in lieu, also sometimes called ‘banked time’. In Ontario, if an employee has agreed to bank overtime hours, the employer must provide 1 ½ hours of paid time off for each hour of overtime worked. The time off must be taken within 3 months or, if an agreement is made in writing, within 12 months. If employment ends before the employee takes the paid time off, the employer must pay him or her overtime pay instead.

Find more information on paid time off in Ontario here.

What are my vacation pay obligations when an employee departs?

When a staff member leaves, you must review their vacation pay entitlement. This is done by calculating vacation pay earned and subtracting vacation time used. If the employee has not used their vacation time, you must pay out the amount owing in cash.

What are the repercussions of not taking time off?

First, a reminder of how and when vacation time is earned: Employees earn their vacation time upon completion of a year of work (the Ontario Ministry of Labour calls it a “12-month vacation entitlement year”), and each subsequent 12-month period. If the employer deviates from the standard entitlement year, the employee is entitled to their minimum vacation time as well as a pro-rated amount of vacation time for the ‘stub period’ which precedes the start of the first alternative vacation entitlement year.

The Ontario Ministry of Labour dictates that vacation time earned (whether based on a completed entitlement year or stub period) must be taken within 10 months. The employer has the right to schedule the employee’s vacation time and/or ensure vacation is scheduled and taken.

Upon obtaining written agreement from their employer and the approval of the Director of Employment, an employee can give up some or all earned vacation time. The employer is still obliged to issue the employee vacation pay. You can give up vacation time, but you do not give up your right to the remuneration associated with that time.

You can learn more about vacation time from the Ontario Ministry of Labour website or by visiting the labour website applicable to your region.