by Maria Lahiffe

Your organization does important work, for a group of people who really need it. You need to get the word out about your work, to bring in potential donors and volunteers, and to educate the public about the issue you address. You need to be careful, though, about how you do that – especially during an election.

Two important pieces of legislation changed in late 2018, which affect how you can behave on behalf of your organization. These are the Income Tax Act and the Canada Elections Act.

Disclaimer: While Volunteer Ottawa has made every effort to provide accurate information, we are not qualified to give legal advice. For legal advice, please consult a qualified lawyer.

New Public Policy Advocacy Rules for Charities [1]

There used to be a limit on how much activity charities could engage in, with respect to public policy dialogue and development activities. This limitation has been lifted, but it’s still not open season. The activities need to further your charitable purposes, and you are still completely prohibited from engaging in partisan activites.

Public policy dialogue and development activities (PPDDAs) can include research, leading discussions, organizing conferences, informing the public, and attempting to shape public opinion. These activities can also include efforts to influence the laws, policies, and decisions of a government.

The definition of charitable purposes remains unchanged. In fact, there is not a specific definition under law, but rather a working definition which has evolved through 400 years of past court decisions. [1] Revenue Canada uses the following definition of a stated charitable purpose: [3]

• The purpose appears in the charity’s governing documents
• The purpose falls within one of the four categories of charity
  • Relief of poverty
  • Advancement of education
  • Advancement of religion
  • Other purposes beneficial to the community in a way the law regards as charitable. These may include environmental protection, human rights, health promotion, animal welfare, and a number of other purposes.
• The purpose provides a benefit to the public, i.e. it passes the Public Benefit Test.

Partisan activities include supporting or opposing, directly or indirectly, any political party or candidate for public office. This is a big grey area, where it is possible to court a lot of trouble if you are not careful. For example, if your charity provides evidence-based services, but a government institutes policies which are not based on peer-reviewed evidence, then some of your normal communications may have the potential to be construed as partisan.

New Advertising Rules for Charities and Not-for-Profits

If you pay to get your word out, then you are advertising. If your information includes messages which promote or oppose a party or a candidate, or that takes a position on an issue associated with a party or candidate, then it is considered election advertising. [4] As discussed above, this means that your honest promotion of your organization’s mission may potentially be construed as political, if a party or candidate is also associated with some aspect of that mission. For example, if you work to alleviate some of the issues related to homelessness, and a party or candidate also has a position on homelessness, then your messaging could be considered political. Political messaging comes under election advertising laws, which changed in late 2018.

Advertising includes: [4]

• any print media, such as signs, newspaper ads, sponsored content in magazines, or anything else in print
• ads in broadcast media such as radio and TV
• messages posted online for which there was a placement cost

Advertising (under Elections Canada rules) does not include the following. [4] However, keep in mind that any of the following may be construed as partisan, depending on what you say, which means you would need to be careful about PPDDAs, as discussed above.

• phone calls, texts, or emails (mind you, other rules still apply. See information on the Voter Contact Registry and CASL, for a start)
• messages posted on social media platforms for which there is no placement cost
• content posted on a third party’s website
• transmission or an editorial, debate, speech, interview, column, letter, commentary, or news
• door-to-door canvassing, unless canvassers distribute election advertising such as pamphlets.

As an independent organization, your NFP would be considered a third party. It is essential to register with Elections Canada immediately after incurring $500 in election advertising expenses. Expenses include all of the costs associated with producing and distributing election advertising. Production costs can include labour, materials, and overhead, while distribution cost is the cost of getting the message to recipients.

There are three different periods which relate to elections, and, by extension, to election advertising. Communication rules are different for each period.

• the pre-election period, which starts months ahead of an election,
• the election period, which runs from the minute the writ drops until midnight the day before the election, and
• election day itself.

Why is this a big deal?

Elections are sacrosanct. As we have seen in recent years, misinformation can have a terrible effect on election outcomes, which in turn can erode civil society itself. The government has tightened rules in order to help protect Canadians from being inundated with partisan messaging at a time when they really need to make a clear-headed decision.

Also, there are hefty fines involved for non-compliance. Following are some examples. The maximum fine for each one of these things on the list is $50,000, which means a total maximum fine could potentially be in the hundreds of thousands of dollars.

• Failure to register
• Failure to appoint a financial agent
• Failure to submit a Third Party Election Advertising Report
• Failure to appoint an auditor

Are you confused yet?

You’re not alone. Come to our upcoming workshop where Adam Apowitzer and Lex Klombies will help you navigate these murky waters. Get your message out, and keep your organization safe from hefty fines.

Click here to register Tuesday, June 25, 2019. 9:30 a.m. to 11:30 a.m.

Related blog posts:

• What could go wrong? A lot, in fact. Learn to manage your risks.
• Legal Obligations of Board Members