Tax & Law

Let’s all learn from the latest Canadian charity scandal

Staff Post
By Heather Young

CBC News’ recent article on the woes of the Black Business and Professional Association raises interesting questions for me.

Briefly, the association engaged both a member of the board of directors and its executive director to provide consulting services through their respective companies, and then did not adequately disclose these related-party transactions in its T3010 Charities Return or in its annual financial audit.

The CBC, with contributions from Charity Intelligence Canada, has presented these infractions in light of a scandal. Indeed, anyone with sectoral expertise knows how vulnerable charities can be to manipulation and personal profiteering, so it’s hard to argue when journalists and watchdogs shine a spotlight on suspected “bad apples.”

A tale of improper behaviour allows us to shake our heads and say to ourselves, “that would never be me!” I think it’s worth exploring the story from a different angle; that is, as a cautionary tale from which other charity leaders might draw important lessons.

Perhaps this was a series of errors with no ill-intent – every bit as serious from both management and regulatory standpoints – but blunders to which any charity could be prey if safeguards weren’t in place.

I should say a couple of things up-front.

First, I don’t know any of the players. I’m basing my comments on having read CBC’s article, and on my own 30-plus years of charity accounting experience (mostly in the arts and culture space). I’m not qualified to evaluate BBPA – but I’ve seen enough comparable issues within enough organizations to know that the sector needs education on these matters – and that’s where I’m going with my comments.

Second, it’s important to affirm that indeed there’s a problem here.

“Related parties” include individuals such as directors who may be able to make or exercise influence over decisions. As such, their activities merit scrutiny. BBPA’s situation falls under three sets of regulations intended to enable that scrutiny:

  • the Income Tax Act (federal) which governs the Charities Directorate and, by extension, T3010 reporting;

  • Ontario’s Charities Accounting Act, which applies to charities based in Ontario; and

  • the CPA Canada Handbook (CPA being Chartered Professional Accountants), which establishes principles for reporting financial information.

Under the Charities Accounting Act, directors can be reimbursed for out-of-pocket expenses, but cannot receive any other remuneration except under restrictive circumstances. As for the T3010, charities must answer the yes/no question, “Did the charity compensate any of its directors/trustees or like officials or persons not at arm’s length from the charity for services provided during the fiscal period (other than reimbursement for expenses)?”  Finally, the CPA Canada Handbook sets out standards for audit disclosure of related party transactions by not-for-profit organizations, of which registered charities are a subset.

Seems fairly cut and dried. So, what’s my rationale for suggesting that non-compliance might involve no deliberate wrongdoing?

I have long experience of charity leaders who possess limited financial expertise. In fairness, charity executives are hired for their dedication and proficiency in the charity’s field of mission, and directors are usually recruited to boards for both their dedication and the professional know-how they bring from their “day job.”

This can contribute to a situation where executive directors de-prioritize building their own finance and accounting skills in favour of recruiting trusted advisors – a bookkeeper, an auditor, and (hopefully) one or more board members with a strong finance background. (The ideal is often to recruit a volunteer CPA to the board of directors.)

In BBPA’s case, it seems possible to me that those two individuals secured the consulting gigs because they brought the optimal blend of expertise, familiarity with the association, dedication to the mission, and a fair price – and that the ensuing issues arose not from a desire to flout the rules, but from organization-wide unfamiliarity with the rules and the potential consequences of violating them.

Some CPAs and bookkeepers specialize in the sector, but many serve a handful of charities and focus most of their time on (more lucrative) business clients. Thus, an auditor, bookkeeper or finance-savvy board member might be at the top of their game in their core area of practice but be under-informed about the specifics of charity reporting in Canada.

An auditor might not have recognized the payments to board members. Catching them would have required making the connection between suppliers’ names as recorded in the books and the individual names on the board list – not necessarily obvious, especially if you’re not looking for the problem. And, if the auditor’s core expertise lay with business corporations, they might be less attuned to not-for-profit disclosure requirements and the risks that could arise from overlooking certain details.

Same applies to bookkeepers, with the additional thought that it’s typical for the government filing (in this case, the T3010) to be the auditor’s responsibility, meaning that a bookkeeper might be unfamiliar with the form and unable to back-stop disclosure deficiencies.

Add to this staff and board members who might acknowledge that they’re unfamiliar with charity regulation – but who might believe that they’ve covered this need by hiring experts. Of course, BBPA’s staff and board knew who they were contracting, but it’s quite imaginable that the connections weren’t flagged to the auditor or the bookkeeper.

As you can see, it’s conceivable that everyone involved believed that they were acting in the best interests of the organization, and that everything was in good hands. Sadly, the various players could all be looking at each other and trying to figure out who should have prevented this from happening.

The answer is that the board, as the governing body of the organization, is ultimately responsible for compliance. The board delegates operations to staff, and staff often hire expert service providers such as CPAs and bookkeepers. But, even if a deficiency arises at this lower level, the board must own it.

Ignorance of the law is no excuse for non-compliance. Given the plethora of regulations covering every aspect of business and charity affairs, how is this reasonable? The rationale for this foundational legal principle is that, if ignorance were an acceptable excuse, then wrongdoers could avoid liability by claiming that they were unaware of the rules. A companion concept states that the law must be properly disseminated – e.g., published and distributed – so that it is possible for all concerned to inform themselves.

So, it seems that BBPA has been caught out, fair and square. But is this a scandal, or a flaw in governance / management infrastructure that – if the truth were known – might not be all that uncommon across the charitable sector?

If my argument holds water – if I’ve presented a reasonable alternate view of the story – then perhaps the defenders of the sector should be discussing regulatory deficiencies and even ethical lapses as likely consequences of a situation where staff leaders hold sectoral expertise but are management generalists; where technical advisors (professionals plus those board members recruited for technical expertise) come up short on sectoral knowledge; and where, instead of that yin and yang adding up to a finely tuned whole, the matching deficiencies add up to disaster.

What do you think? Did you read this making mental additions to your charity’s governance to-do list? I’ll be very interested to read others’ comments!

UPDATED: T4As: 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 “Filling out the T4A slip” under the Box 048 section – 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 National Payroll Institute’s InfoLine as well as discussions with the CRA have 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 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 National Payroll Institute – 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. 

UPDATED: How Bill 148 affects your organization

There have been a number of changes to employment standards in Ontario since the passing of Bill 148, the Fair Workplaces, Better Jobs Act, 2017. As there are more changes becoming effective as of next month, it is a good time for organizations to review what’s already changed and what changes are still to come. We have highlighted some significant changes as of November 2017, December 2017, January 2018, April 2018, and upcoming in 2019.

November 2017

As of November 27, 2017, your organization should have already reviewed its classification of employee vs. contractor. We have noticed an uptick in the number of payroll audits among nonprofits. With stricter enforcement around classifications of who is an employee vs. who is an independent contractor (aka freelancer) now in effect with Bill 148, it is important that organizations thoughtfully review their decision-making process around defining an individual as an employee or as a contractor. Organizations should be prepared to  implement necessary changes. 

Factors to consider include:

  • Control. An employee is directed by an employer; a contractor has a measure of control over what and how work is done (although they don’t have to exercise that control).
  • Tools & Equipment. Employees who use tools and equipment do not own those items. Their employer should provide, maintain, and insure most of those tools. Employers can also reimburse employees for tools and equipment they have acquired for the job. 
  • Subcontracting / hiring assistants. An employee cannot subcontract tasks or hire an assistant to do their work. A contractor can subcontract or hire help without approval of the payer.
  • Financial risk. An employee’s expenses are reimbursed and generally has no financial risk. A contractor is self-employed and takes on financial risk with each engagement, should the contract go incomplete/unpaid.
  • Responsibility for investment and management. An employee does not have a capital investment in the employer’s business. A self employed person generally has an established business, or a capital investment in the payor's business. 
  • Opportunity for profit. An employee doesn’t gain profit or incur loss while doing their work, whereas self-employed individuals can take a loss or a profit in the course of a contract. 

Also as of November 2017, your organization should have updated its crime-related child death or disappearance leave. A child is defined as under 18 and can be a step-child or foster child. Employees qualify for this leave after 6 months of employment. It is an unpaid but protected leave of up to 104 weeks.

Employers should note that as of November 2017 the EI waiting period has been reduced from 2 weeks to 1 week, for those who have a reduced EI rate due to an STD (short-term disability) program. The government has provided employers 4 years from January 1, 2017 to have plans to accommodate the reduced wait period or the organization will risk losing the reduced EI rate. 

December 2017

As of December 3, 2017 employers need to have begun preparing to accommodate the following family-related job leaves: employees can now opt to take an extended parental leave (increased by an additional 26 weeks (61 weeks total). This could prove to be a popular option for parents in Ontario, where childcare availability and affordability are a huge challenge, especially for children under 18 months of age. It is important to note that once an employee chooses the parental benefit path (extended or non-extended) they cannot change paths at a later date. Also note that the EI coverage for parental leave is for the same amount, no matter the path chosen. In other words, the recipient will receive the same overall dollar amount whether the leave is 35 weeks or 61 weeks, but their biweekly payments will be more or less respectively. 

Also as of December 1, 2017, women can now take maternity leave up to 12 weeks prior to the birth of a child, and employees who are family caregivers are now able to take up to 15 weeks of unpaid, job protected leave.

January 2018

As of January 1, 2018, several changes related to wages and paid time off have come into effect, as well overtime, job leaves, and holiday pay, and record-keeping obligations. 

Your organization should now be accomodating the following changes related to wages and PTO:

  • Minimum wage. Employees have a minimum wage of $14/hour. Student employees have a minimum wage of $13.15 (but if school is in session, they must work less than 28 hours / week to be eligible for this wage). So, if a student is working full time hours while school is in session, they are considered an employee, not a student employee, and are entitled to the full $14/hour minimum wage. The 28 hour per week limit does not apply on school holidays or during summer break.
  • Vacation pay. New legislation means that every employee in Ontario is now entitled to 3 weeks (6%) vacation after 5 years of consecutive employment with a single employer.
  • Overtime. Overtime pay must be paid out at the rate at which an employee was being paid at the time the overtime occurred. For employers, this means that overtime can no longer be calculated at a blended pay rate, and overtime pay cannot be paid out at, for example, the lower of an employee’s two pay rates. 
  • Public holiday pay calculation. To determine the amount of stat holiday pay to pay out to an employee, an employer should now use the single pay period directly prior to the stat holiday to calculate the average daily wage (total gross earnings/number of days worked in that period). Some scenarios require employers to consider some additional factors:
    • For new hires, employers should use the current period to to determine the average daily wage, and pay that. UPDATE: The Ministry of Labour has announced that effective July 1, 2018, the ESA will be reverting back to the former statutory holiday calculation of 1/20 of the prior 4 weeks earnings as an interim measure while the public holiday changes to the ESA continue to be reviewed. This change is due to concerns arising from the Changing Workplaces Review, which found that "public holiday rules were the source of the most complaints under the ESA and needed to be simplified."  More info.
    • For anyone on approved leave in the pay period  prior to the stat, employers should use the pay period in which the individual last worked to determine the average daily wage.
    • When determining average daily wage use the gross earnings before statutory deductions. Do not include overtime pay, termination pay, severance and premium pay, vacation pay, personal emergency leave pay, domestic or sexual violence leave pay or pay for other public holidays.
    • The Statutory Holiday Calculator can be found here.

Employers also, as of January 2018, need to be prepared to provide to eligible employees 10 days of Personal Emergency Leave, the first two of which are paid. Employees are eligible after 1 week of consecutive employment. Employers are no longer allowed to to ask the employee for a physician’s note to validate the leave.

As well, employers should be prepared to accommodate Domestic and Sexual Violence leave to eligible employees. Employees are eligible after 13 weeks of employment. This is a job protected leave of up to 10 individual days, the first 5 of which are paid, and up to 15 weeks per calendar year for employees, or children of employees, who have experienced or been threatened with domestic or sexual violence.

As of January 2017, all organizations are now obliged to follow several new employee-related record-keeping measures. They should record:

  • Dates and times employees are scheduled to work and changes to on call schedules
  • Dates and times employees worked
  • If an employee has two or more pay rates for worked performed in a pay week
  • Any cancellations of scheduled days or work or on call periods and dates and times of those cancellations
  • Vacation records for 5 years (instead of 3 years)

April 1, 2018

Upcoming as of April 1, 2018, organizations need to be prepared to issue equal pay for equal work. Part-time, casual, temporary, and seasonal employees must be paid the same as full-time permanent employees if they are doing essentially the same job. All organizations, including nonprofits, often with stretched budgets, will need to think carefully about how they rely on these types of workers and what they budget to pay them. A permanent, full-time employee cannot be paid more for the same task or set of tasks. Exceptions exist jobs paying by quantity or quality of work, or for merit or seniority systems, but these systems must be applied consistently. 


Possible changes coming in 2019

Although not yet confirmed by the government, organizations in Ontario should be prepared for the following in 2019:

WSIB review, which is proposed to 

  • Update the 34 industry classifications
  • Establish premium rates based on the collective experience of employers in the industry classification
  • Set an employer’s actual premium based on individual employer experience based on individual company level of risk 

CPP Enhancements

  • Starting in 2019 CPP contribution rate will increase each year until 2023 when it reaches 5.95%
  • There will also be an additional enhanced earnings percentage of 4% for earnings between the yearly maximum and the new upper earnings beginning in 2024

Scheduling requirements

  • Employees can request a location or schedule change after three months of employment, without penalization
  • Employees can refuse shifts that an employer requests they take with less than 96 hours notice, without fear of retaliation
    • exceptions are made for dealing with an emergency, remedy, or reducing a threat to public safety, or continued delivery of an essential public service
  • Employers must pay 3 hours wages to anyone who
    • regularly works more than 3 hours but has their shift is cut short
    • whose shift is cancelled without 48 hours notice from scheduled start time
    • is scheduled on call and is available to work but does not work at least 3 hours

An exception will be made when any of these situations arises from an event that is out of the employer’s control (eg. power failure, fire,) or if the employee works in a weather-related industry (eg. snow removal).

This tip sheet was created by Alicia McGuire of Young Associates. Founded in 1993, Young Associates delivers technical expertise and advisory services to support operational effectiveness of nonprofit and creative organizations. We invest in transformative technology and expert human capital to provide our customers progressive solutions in financial, data and information management, human resources, and strategic planning.

Disclaimer
 

Save yourself some pain: collect Tslip data and secure consent for e-distribution upon contract

One of the most painful parts of Tslip season is tracking down any missing information for recipients (e.g. SIN, address, email address) so that you can submit their tslip to the CRA and distribute their copy by the February 28 deadline. 

This can be particularly difficult with T4A recipients who are engaged on a short-term basis,  or who are living elsewhere and not in regular communication with your organization. Sometimes contract workers don’t file their income taxes on an annual basis, and therefore do not feel the same sense of urgency in regards to receiving their T4A on time… but when they’re ready to catch up, they don’t want to be delayed! 

The best way to avoid the pain is to collect all the necessary data upon engagement of the individual. Consider making full name, SIN, phone number, address, and email address standard fields on a contract, letter of agreement, or other initiating document so that you are ready for T-slip season before you pay the individual. 

And, since e-distribution of T4As, T4ANRs, and T5s (as well as certain T4s - click here for more info) requires consent from the recipient, add another standard field on your contracts to allow each individual to confirm their email address and opt in to receiving their tslip via e-distribution. 

Taking a bit of extra care at the contracting phase will save you a lot of frustration when February rolls around.  
 

ONCA on track for 2020

The Ontario Not-for-profit Corporations Act (ONCA), the proclamation of which has been delayed over the past several years, is in track to come into force in early 2020. 

According the the Government of Ontario, they are upgrading technology to support the changes and service delivery, and aiming for proclamation of the Act in early 2020. An announcement now gives not-for-profits 24 months' notice before enforcement.

The Government promises to provide further details and a 3 year transition period after ONCA is in force, for organizations to make necessary changes to their governing documents. They also promise to help support a smooth implementation.

Source: Government of Ontario Rules for not-for-profit and charitable corporations