Introduction

From volunteering time to a community organization to donating money for charitable causes, Ontarians contribute generously to charity. Occasionally, people have concerns about the way a charity uses its property. This guide is intended to explain how to make a complaint about a possible misuse of charitable property.

Public Guardian and Trustee

In Ontario, the Public Guardian and Trustee can inquire into complaints about the use of charitable property. It can also inquire into complaints about those responsible for the administration of charities.

What the Public Guardian and Trustee Can Look Into

The Public Guardian and Trustee only inquires into certain types of complaints. There are three general areas the Public Guardian and Trustee can investigate.

1. Charitable Property is not Used for the Purposes for which it is Intended.

   The Public Guardian and Trustee can inquire into complaints about the misuse of charitable property.

   Legally, charity consists of four principal areas:

   1. The relief of poverty,
   2. The advancement of education,
   3. The advancement of religion,
   4. Other purposes beneficial to the community, as determined by the courts, but not falling under any of the preceding heads.

   Charitable property is any property, including anything donated, which belongs to a charity or is to be used for charity. This includes money, real estate, food, clothing, trademarks or goodwill. l.

   Both charities and non-charities can hold charitable property, for example, a club raising money for disaster relief at a bake sale holds that money for charitable purposes - it is charitable property - and that money must be used for disaster relief. The Public Guardian and Trustee could inquire into the way the club is using that charitable property, if it is not used for disaster relief, even if the club is not a charity.

2. Complaints about those Responsible for the Administration of Charities.

   The Public Guardian and Trustee can inquire into complaints about those responsible for the administration of charities.

   Charities are organizations (trusts, unincorporated associations and non-profit corporations) organized for the sole purpose of carrying out charitable purposes. Examples of charities include churches, food banks, universities, scholarship trust funds and animal shelters.

   It is important to note that not all non-profit corporations are considered charities. Only those, which are organized for the sole purpose of carrying out charitable objectives are charities. Service clubs, social clubs, amateur sport organizations and cultural organizations are examples of non-profit organizations which are not charitable.

   The Public Guardian and Trustee can inquire into the administration of charities including the following general matters:

   1. Where there are inadequate controls over the charity's property and it is being wasted or it is at risk of loss;
   2. Where the charity is using its property for activities which are not included in its charitable purposes
   3. Where the charity's property is being used for the personal benefit of the trustees or directors. Authority to use the property of the charity for the benefit of a director or trustee (for example the payment of salaries or honoraria) can be given by Court Order and may be given in any regulations made under section 5.1 of the Charities Accounting Act.

3. Complaints about a Business Substantially Controlled by a Charity.

   The Public Guardian and Trustee may inquire into complaints concerning the management or operation of a business that is substantially controlled by a charity. A charity holds a substantial interest in a business when it holds more than 20 % of the voting rights or more than 20 % of the shareholders’ equity.

   The kinds of matters the Public Guardian and Trustee may inquire into include:

   1. The business is not being used in the best interests of the charity;
   2. The business is being used to benefit the personal interests of a director or trustee of the charity;
   3. The business is not generating revenue for the charity.

   The Public Guardian and Trustee can require the business to provide commercial and financial records and other relevant information.

   You can obtain more information about the Public Guardian and Trustee’s power to inquire into complaints involving a charity’s substantial interest in a business by reviewing section 4.1 of the Charities Accounting Act.

What the Public Guardian and Trustee does not Investigate

Although the Public Guardian and Trustee has the right to investigate complaints of mismanagement of charitable property it may not investigate a complaint if:

1. The matter complained about involves a minor matter or small amount of charitable property.
2. The complaint only incidentally involves a matter that the Public Guardian and Trustee can inquire into.
3. Other persons or organizations can deal with the matter and have not yet resolved it.
4. The purpose of making the complaint appears to be to harass, apply pressure on, or embarrass an organization or individual or some other improper purpose.
5. Sufficient evidence is not provided.

Matters that are Beyond the Public Guardian and Trustee's Jurisdiction

The Public Guardian and Trustee can only look into the use of charitable property. If the complaint is not about the use of charitable property there is often another organization that can look into the matter complained of. The following are examples of complaints the Public Guardian and Trustee does not inquire into:

1. Employment Matters

   Complaints about the violation of:

   • A collective agreement - may be directed to the complainant's union or collective bargaining agent
   • Labour laws - may be directed to the Ministry of Labour
   • Human rights laws - may be directed to the relevant person (i.e., employer or service provider) or Ontario Human Rights Commission or the Canadian Human Rights Commissions

2. Contravention of Zoning or Municipal Bylaws

   Complaints about the violation of zoning or other municipal by-laws may be directed to the municipality in question.

3. Corporate Governance Issues

   The following are matters of member's rights or internal governance that members can deal with themselves using the organization's by-laws, constitution or similar documents. Some of the more common issues are:

   • Members' meetings are not held;
   • Directors, trustees or officers are not properly elected;
   • Directors, trustees or officers do not step aside for succeeding directors, trustees or officers;
   • Financial statements are not made available to members;
   • The procedures in the by-laws are not followed.

   If the organization is incorporated or operates under the Ontario Corporations Act, ServiceOntario at the Ministry of Government Services may be able to provide further information about rights under that Act. On the other hand, if the organization is incorporated under the Canada Not-for-Profit Corporations Act, the Federal Corporations Directorate, Industry Canada may be able to provide further information about rights under that Act.

4. Don't agree with the Direction the Charity is Taking

   Sometimes, people don't agree with the way that charitable property is used to carry out the charitable purposes. This is an internal matter to the charity. If the members do not agree with the way the charity is pursuing its charitable objects, it is up to them to exercise whatever rights they may have under the law and the organization's rules to change the management or direction.

5. The Income Tax Act (Canada) is being Violated

   Complaints about violations of the Income Tax Act (Canada) may be directed to Compliance Division of the Charities Directorate.

6. Landlord-Tenant Laws or Rights are being Violated

   Complaints relating to landlord-tenant issues may be directed to Ontario Landlord and Tenant Board of the Ministry of Municipal Affairs and Housing.

7. Goods sold are not satisfactory or Other Matters Involving Consumer Sales or Contracts

   These issues are private matters between the complainant and the organization in question. Complaints may be directed to the Consumer Protection Branch of the Ministry of Consumer Services. A claim with the Small Claims Court, now part of the Superior Court of Justice, may also be made in appropriate circumstances.

8. Business Contracts are Not Honoured or Debts are Not Paid

   These issues are private matters between the complainant and the organization in question.

9. Government Grants are Not Used as Intended

   Issues relating to government grants or funding not being used in accordance with the terms of the grant or funding are matters the government body that provided the grants or funding may address.

10. Unlicensed Gaming is being Conducted by the Charity

    Unlicensed gaming (bingo, casinos, lotteries, break-open tickets, etc.) or the proceeds of gaming not being used by a licensed charity for the purposes specified under the license, are matters that the Alcohol and Gaming Commission of Ontario may address. For further information, please visit http://agco.on.ca/.

    How to Make a Complaint

    Making a complaint about a charity or a person managing charitable property is a serious matter. The Public Guardian and Trustee suggests, if possible, to approach the charity with your concerns first. In many cases the charity will clarify its actions to your satisfaction.

    If you want to make a complaint about the use of charitable property you will need to do the following:

1. Put Your Complaint in Writing

   Prepare a letter outlining your complaint. The letter must provide full details setting out how you think the charitable property is being misused.

   You will need to sign and date the letter and provide your address and phone number (both at work and home if possible) so we can reach you if we need further clarification. If there is a group of people who are complaining, identify the prime contact person. It would also be useful to provide a list of those who are complaining. The Public Guardian and Trustee does not look into anonymous complaints.

2. Provide Evidence of your Complaint

   You should attach to your letter any evidence supporting your complaint. Examples include:

   • Financial records;
   • Board minutes;
   • Letters and other correspondence to you from the charity's board of directors;
   • Annual reports and brochures; and
   • Any other material that you think is relevant to your complaint.

   Evidence is required to show that your complaint is a complaint made in good faith.

What Happens to your Complaint

The Public Guardian and Trustee works in confidence and works closely with the parties involved. Your complaint will be acknowledged and Public Guardian and Trustee staff may contact you for further information.

If the Public Guardian and Trustee decides to inquire into a matter, it does so on its own behalf and not on the complainant's behalf. For this reason, you will not be kept up to date on progress of the inquiry. You will be advised when the matter has been completed. It has been our experience that some investigations take time and have lasted a number of months or years.

Inquiries about the Complaint

If you want to have the Public Guardian and Trustee keep your identity or any document(s) or information confidential you should specifically request this confidentiality in writing. You should clearly state what parts of a complaint or other document or information you are asking to be kept confidential.

You also need to provide the reasons you want your name or other information or documentation kept confidential. While the Public Guardian and Trustee will try to respect your request, it cannot guarantee that the names of complainants or the information they provide will be kept confidential. In the course of the review it may be necessary to release documents and information you have supplied.

The Public Guardian and Trustee may also, in the course of court proceedings, voluntarily disclose complaint letters or a complainant's identity. If your complaint ultimately results in legal action being taken, the Public Guardian and Trustee will usually include your complaint letter in the materials filed with the court. In addition, the Public Guardian and Trustee may be required by the court to disclose the complaint letter(s) which gave rise to the matter.

The Public Guardian and Trustee's records, including complaints - are subject to the Freedom of Information and Protection of Privacy Act. Under that Act, government bodies are required to give certain information to those who request it. Complaint letters may be requested and released to the public, subject to the exemptions in the Act.

You can obtain further information about the Freedom of Information and Protection of Privacy Act from the Freedom of Information and Privacy Office at the Ministry of the Attorney General or from the Freedom of Information and Protection of Privacy Commission.

Other Ways to Raise your Concerns.

There are two alternatives to sending a complaint directly to the Public Guardian and Trustee.

1. Section 6 of the Charities Accounting Act

   This section allows you to complain in writing to the Superior Court of Justice about the way a charity has solicited funds from the public or used such funds. Your complaint should be in the form of an affidavit and you should attach any documentation substantiating your complaint. A judge will review your complaint and determine if he or she will order the Public Guardian and Trustee to investigate the matter and report back to the court. The Public Guardian and Trustee may then use powers given to it under the Public Inquiries Act. As this is a court proceeding you will be identified as the complainant.

2. Section 10 of the Charities Accounting Act

   Under this section two people can seek the Court's direction about the administration of charitable property or alleged breach of trust. You will need to prepare a formal Application to the court and give notice to the Public Guardian and Trustee who may appear in front of the judge when the application is heard by the court. The judge may order the Public Guardian and Trustee to investigate and report back to the court. The Public Guardian and Trustee may then use powers given to it under the Public Inquiries Act. As this is a court proceeding you will be identified as the complainant.

   Because these approaches require the preparation of documents to be filed in court, you may wish to consider consulting a lawyer to assist you. The address of the closest Court can be found in the blue pages of your telephone directory.

The Public Guardian and Trustee's Approach

The Public Guardian and Trustee works to ensure that public trust in the charitable sector is maintained. In most cases, the Public Guardian and Trustee will try to work with the charity to correct past errors and to help the charity avoid problems in the future.

Office of the Public Guardian and Trustee
Charitable Property Program
595 Bay Street, Suite 800
Toronto, ON M5G 2M6
Tel: (416) 326-1963 or in Ontario
toll free at 1-800-366-0335
Internet: www.attorneygeneral.jus.gov.on.ca/english/family/pgt