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Law Times • march 15, 2010 Raising the alarm on stalled safety bills I t would be hard to imagine our world today without legislation ensuring our safety. Smoke detectors are stan- dard items now required by law, as are things such as seat- belts and approved booster seats for children. So the question lingers: why would a government that can rush through legislation banning pit bulls and barring drivers from talking on their cellphones not be interested in adopting other legis- lation that will save lives? There were two bills in the last legislative session that addressed safety. One, bill 143, was intro- duced by PC agriculture and food critic Ernie Hardeman and subtitled the Hawkins Gignac act (carbon monoxide detectors). Its name refers to the deaths of OPP Const. Laurie Hawkins, her husband Richard, and their two children, Cassandra and Jordan, of carbon monoxide poisoning in Woodstock, Ont., two years ago. While it has passed second read- ing, it's not a priority for the gov- ernment and unless it is brought forward into the new session, it will wither and die. Carbon monoxide poisoning is one of the leading causes of death around the world. The tragedy is that many can be prevented with a simple carbon monoxide detector. The legislation merely seeks to require that homes, apartments, and workplaces be fitted with a functioning detector. It's hardly ex- pensive and, if it saves but one life, it will have been worth it. A related but separate piece of legislation, brought forward last year by Liberal MPP Wayne Ar- thurs, would require all new provin- cial and municipal public buildings to have visual fire-alarm systems. Why? Because deaf people can't hear ringing fire alarms, and with Letters to the Editor RUBY GIVES WRONG VIEW IN WRONG FORUM Years ago, Clayton Ruby would take shots at me in the Toronto Star as I served as either the at- torney general of Canada or the solicitor general of Canada. Since we knew a Conservative would never get published in that forum, we never responded. So Ruby had a free ride. Now, the playing field is levelled as both Ruby and I are elected benchers of the Law Soci- ety of Upper Canada. In your Feb. 22 issue, Ruby (see "LSUC all talk on women and legal aid") rejected the posi- tion taken by Treasurer Derry Millar with respect to women and legal aid. I take issue with both the argument Ruby has expressed and the public way he has reflected it. When the report on the reten- tion of women in private practice was adopted on May 22, 2008, by Convocation, Ruby was recorded in the minutes as saying: "I want- ed to say about the report itself that I'm really grateful it's been brought forward. These ideas are focused, they're modest." Contrast that with his letter on Feb. 22. "Sadly, what came out of the recent intolerably lengthy study period was an agreement to bring 55 large- and medium-sized firms together to discuss — still further — how to retain women in the profession and prepare written material to assist firms in making women's lives better." When commenting on the first year of the Parental Leave Assis- tance Program, Ruby derided the fact that only 39 men and women were approved for assistance in the first year. In my view, we have proceeded cautiously in spending our members' dues, as we should. Then, Ruby moves to the legal aid boycott by the Criminal Law- yers' Association and castigates Inside Queen's Park By Ian Harvey our aging population, we're going to have a growing segment of our community with difficulty hear- ing. About 25 per cent of adult Ca- nadians report having some hear- ing loss, although only about 10 per cent identify themselves as deaf or hard of hearing. In 2030, Canadians 65 years and older will represent 25 per cent of the popu- lation, nearly double the current 13 per cent identified by Statistics Canada. At the same time, research sug- gests more than 80 per cent of people over 85 have hearing loss. I'm sorry, what did you just say? That's my point exactly. It's going to catch up with you and me both sooner or later. For Arthurs, it's the second at- tempt at bringing the bill forward. But perhaps it's understandable that Premier Dalton McGuinty's govern- ment hasn't made these bills a prior- ity. It's got a lot on its plate. Between a ballooning deficit and the introduction of the harmo- nized sales tax on July 1, there are a lot of fires that need tending. But extending fire protection to the deaf and hearing challenged and making carbon monoxide alarms mandatory are hardly going to break the fragile budget. It's just the right thing to do. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and po- litical affairs. His e-mail address is ian harvey@rogers.com. COMMENT PAGE 7 Good news for charities in federal budget BY KAREN J. COOPER AND TERRANCE S. CARTER For Law Times O ne measure proposed in the federal gov- ernment's 2010 budget that has found support from across the charitable sec- tor in Canada is the provision eliminating the 80-per-cent disbursement quota for registered charities and increasing the exemption from the separate 3 1/2-per-cent disbursement quota. Over the years, those requirements have created an unnecessarily onerous administrative burden on registered charities that few of them have had the ability to comply with, let alone understand. These burdensome complexi- ties include having to wrestle with the complicat- ed concepts of enduring property, 10-year gifts, capital gains pools, and inter-charity transfers. The 80-per-cent requirement was particularly difficult for small and rural charities to adhere to because they tend to be more dependent on receipted income than large organizations. The government introduced the disburse- ment quota to help curtail fundraising costs, limit capital accumulation, and ensure that a significant portion of an organization's resources went to charitable activities as opposed to ad- ministrative costs. In general terms, it requires that the amount a charity spends each year on charitable activities be at least equal to 80 per cent of the previous year's tax-receipted dona- tions. However, with the recent release by the Canada Revenue Agency of its guidance on fundraising by registered charities, the charitable expenditure rule has become less relevant. In July, the national charities and not-for- profit law section of the Canadian Bar Associa- tion submitted a paper to the Department of Finance indicating that the disbursement quota regime results in substantial distortions of do- nors' gifting decisions and investment choices by charities. The paper made a number of recom- mendations for reform, including the complete repeal of the charitable expenditure rule or the 80-per-cent disbursement quota and modifica- tions to the 3 1/2-per-cent requirement. Now, the 2010 federal budget proposes to re- form the disbursement quota for fiscal years that Convocation for expressing confidence in Attorney General Chris Bentley's ability to find a solution and not publicly sup- porting the boycott. Bentley did in fact come up with a solution that met with the approval of the Alliance for Sustainable Le- gal Aid. More importantly, the law society didn't abandon its role as regulator of the profes- sion in order to put itself in the untenable scenario as an advo- cate for a position on behalf of a segment of the membership. When you are a member of an elected body, there is a convention as to when, where, and how you disagree with the course of action it's taking or its leaders. In politics, the forums are cabinet and cau- cus. The disagreements stay in the room. I believe that as a bencher, our disagreements should be civil and in open or closed Convoca- tion, depending on the issue. As it happens, I am in com- plete and absolute disagreement with Millar and a committee of Convocation over a course of ac- tion presently being taken on an issue that I believe to be out of www.lawtimesnews.com Speaker's end on or after March 4, 2010, by completely re- pealing the charitable expenditure rule. In addi- tion, the disbursement quota currently includes a requirement that charities spend an amount equal to 3 1/2 per cent of their investment as- sets each year if their value exceeds $25,000. The budget proposes to increase this threshold to $100,000 for charitable organizations, thereby reducing the compliance burden on small chari- table organizations and providing them with greater ability to maintain reserves to deal with contingencies. Other proposed mea- Corner sures include extending existing anti-avoidance rules to situations where the purpose of a transac- tion was to unduly delay or avoid the application of the disbursement quota; amending the provisions that allow chari- ties to accumulate property for a particular pur- pose, such as a building project, to exclude these funds from the capital accumulation rule; and extending the mineral exploration tax credit, an important component of many flow-through share-gifting arrangements. The proposed changes will have a substan- tial impact on charities, significantly decreas- ing the administrative complexity of comply- ing with the disbursement quota. No longer will they have to struggle with structuring long-term gifts or endowment funds to com- ply with complex Income Tax Act language related to enduring property. They will instead be able to focus their efforts on balancing do- nor desires for long-term financial stability with the need for flexibility to meet changing economic conditions. Charities and their financial advisers will also not have to spend scarce resources account- ing for and allocating expenses between those related to carrying on charitable activities and overhead or administrative costs. Instead, the fo- cus will be on complying with CRA's guidance with respect to fundraising expenditures. LT Karen J. Cooper is a partner with Carters Pro- fessional Corp. Terrance S. Carter is the firm's managing partner, counsel to Fasken Martineau DuMoulin LLP on charitable matters, and chair- man of the national charities and not-for-profit law section of the Canadian Bar Association. order, not helpful to the profes- sion, and a waste of members' dues. Millar and I have had spir- ited correspondence with respect to this issue. That is where the dis- cussion belongs until a different convention is established. On the issues at hand, I believe Ruby is off base on the substance of his position on the retention of women and the legal aid boycott. What's more, he is completely in the wrong forum. One wonders whether he has another agenda. Doug Lewis, Bencher, Law Society of Upper Canada, Orillia, Ont. RUBY RESPONDS: OPEN DEBATE ESSENTIAL Doug Lewis, whom I like as a person, sets out two fantasies in a single short letter. The first is the notion that the Toronto Star would never publish a reasoned argument in reply to comments containing criticism even if the person seeking a right of reply was the attorney general of Canada or the solicitor general of Canada. Why would the Star turn down the opportunity for an exclusive analysis from a senior government official on a topic they had already considered news- worthy enough to publish? This can only be a post facto justifica- tion for silence all those years ago. Second, there is no conven- tion at the Law Society of Upper Canada that, at Convocation, dis- agreements stay in the room. In a democratic organization, public debate, public discussion, and public disagreement are essen- tial. The legal profession cherishes the value of open debate — not those of silence and secrecy. Too many issues are discussed only in camera, where any criticism re- mains hidden from the members. The last budget — worth more than $55 million — was debated only behind closed doors at a bencher-only information session. When all the questioning there was completed, the budget passed in open Convocation without a single question or comment. It had all been done earlier amongst colleagues behind closed doors. Clayton Ruby, Bencher, Law Society of Upper Canada Toronto