Charity Talk, November 2011

The Canadian Bar Association
Charity Talk – CBA National Charities and Not-for-Profit Law Section

Canada Not-for-Profit Corporations Act proclaimed in force
By Kate Lazier, Miller Thomson LLP, Toronto
An update on the new Canada Not-for-Profit Corporations Act that came into force on October 17, 2011.

Recent cases on charity law issues
By Robert Hayhoe and Andrew Valentine, Miller Thomson LLP
A summary of the Oloya decision on charitable receipts and the News to You decision on the charitable status of news coverage.

Recent CRA views on condo corporations as non-profit organizations
By Theresa Man, Carters Professional Corporation
A review of several CRA statements on the non-profit status of condominium corporations.

Saskatchewan’s Charitable Fundraising Business Act
By Rupert Bandais, Miller Thomson LLP
A summary of Saskatchewan’s requirements to register a fundraising business acting in the province.

Written resolutions in lieu of meetings
By Joel Secter, Drache Aptowitzer LLP
This article provides an overview of the changes regarding written resolutions in lieu of holding meetings under the new Canada Not-for-profit Corporations Act.

CRA news
By Karen Cooper, Carters Professional Corporation
CRA Charities Connection #7 and #8 dealing with service standards for Charities Directorate, residency and the public service body tax rebate, and issuance of a T2202A tuition certificate.

Message from the Chair – welcome
By Peter Broder, The Muttart Foundation
Key changes on the legislation and regulation front, and continuing talk of measures to promote more social entrepreneurship, suggest that the coming year will be a very full one. With this active agenda, we are always looking for ways to encourage more participation from our members.

Mark your calendar! – Alberta CLE
Lawyers who advise or sit on boards of charities won’t want to miss “Advising Charities and Not-for-Profit Organizations,” an upcoming seminar to be presented by the Legal Education Society of Alberta.


Canada Not-for-Profit Corporations Act proclaimed in force

By Kate Lazier

The new Canada Not-for-Profit Corporations Act came into force on October 17, 2011. All federally incorporated non-share capital corporations will be required to continue under the CNCA within three years of this date. Failure to continue under the CNCA within the three-year deadline will result in the dissolution of the corporation.

As previously mentioned in the May 2011 issue of Charity Talk, federal Special Act corporations will automatically be subject to certain provisions of the CNCA and will have the option of continuing fully under the CNCA.

Industry Canada’s website contains information on incorporation and corporate maintenance under the CNCA, as well as on the continuation process for corporations continuing under the CNCA. That information is available online.

We will have more on this development in upcoming newsletters.

Kate Lazier is a partner at Miller Thomson LLP in Toronto.

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Recent cases on charity law issues

By Robert B. Hayhoe and Andrew Valentine

Charities and advisors should take note of two recent decisions, one by the Tax Court of Canada and the other by the Federal Court of Appeal.

(1) Oloya v. R.

The recent decision of the Tax Court of Canada in Oloya v. R, 2011 TCC 308 highlights the pitfalls that can occur when insufficient attention is paid to the form and content of donation receipts issued to donors. The case involved an appeal by a taxpayer, a Mr. Oloya, from reassessments in respect of donation receipts that he and his wife had claimed for various gifts to a charity of which he was the founder. The charity was involved in development work in Africa, and the judge acknowledged that the taxpayer operated the charity with the best of intentions. However, the judge also stated that Mr. Oloya lacked the necessary accounting skills and knowledge of receipting rules, and that this had resulted in numerous tax credits being improperly claimed. The case is an important reminder that it is essential that charities know and follow the rules surrounding receipting for gifts.

The taxpayer had claimed several receipts issued for the value of services donated to the charity. The Court confirmed that receipts can only be issued for donations of property and that gifts of mere services cannot be receipted. While it is possible to be paid for services performed, and to receive a receipt for a voluntary donation of this payment back to the charity, a receipt cannot simply be issued for the value of services provided.

Mr. Oloya also sought to claim credits for several items that he had purchased on behalf of the charity, but for which no receipts had been issued. The judge stated tax credits cannot be claimed except where the taxpayer has received a receipt containing all legally required information. He also noted that because Mr. Oloya expected to be reimbursed by the charity, these purchases were not in fact gifts but rather loans.

Both Mr. Oloya and his wife sought to claim various gifts in kind to the charity. Mr. Oloya’s wife had made gifts of various office equipment, and although the Canada Revenue Agency ("CRA") did not question the amounts claimed, it noted that the receipts did not contain a description of the property donated as required by the Income Tax Regulations. The Court held that because the receipt did not contain all required information, no credit could be claimed.

The Oloyas also sought to claim credits in respect of a room in their house that was used for the charity’s business. The judge noted again that receipts can only be issued for gifts of property. If the charity had paid the Oloyas rent, which they then donated back to the charity, this would be eligible for a receipt. However, the judge appeared to view the mere use of a room as not constituting a gift of property. The decision was made easier for the judge because the receipt issued did not describe the property gifted and therefore could not be receipted in any event.

The final issue involved a purported gift of land in Uganda to the charity. The land had been owned by Mr. Oloya’s father and was then allegedly gifted to Mr. Oloya. However, no documentation could be produced to establish that the transfer from the father to Mr. Oloya had been validly completed under local law (in this case, the law of Uganda). The judge concluded that it was most likely not possible under Ugandan law to transfer title in land without a written document, and that therefore the transfer from the father to Mr. Oloya had never occurred. Accordingly, Mr. Oloya could not have gifted this land to the charity. The Court disallowed the receipt claimed.

This case is particularly unfortunate because in each instance (with the possible exception of the gifted land) a receipt could have been validly issued for the value of each gift, and the disallowing of these gifts was entirely avoidable. However, because the charity was unfamiliar with the rules, these gifts were disallowed. Charities should confirm that their current receipting practices and Gift Acceptance Policies are up to date and properly reflect the rules. Failure to do so can result in penalties and negative consequences for both the charity and the donor.

(2) News to You Canada v. M.N.R.

In June, the Federal Court issued its decision in News To You Canada v. Minister of National Revenue, 2011 D.T.C. 5105, in which it denied the organization’s appeal of the Canada Revenue Agency’s refusal to register it as a charitable organization. This decision, while consistent with the Court’s pattern of upholding virtually all decisions of the Charities Directorate, is perhaps surprising in that the Court has engaged the Charity’s arguments in a way that is not always evident in registration appeals.

News to You was incorporated with the purpose “to fund, develop and carry on activities to research and produce in-depth news and public affairs programs designed to provide unbiased and objective information concerning significant issues and current events that are relevant to a large sector of the general public and to disseminate these programs by publishing, broadcasting, cable, satellite, Internet and any other distribution method available now or developed in the future in order to encourage a well-informed general public for the benefit of society.”

The organization argued that it was charitable because it advanced education and also by analogy to other recognized purposes beneficial to the community.

The Court concluded that the organization was not educational:

Though I agree that the production and dissemination of in-depth news and public affairs programs may improve the sum of communicable knowledge about current affairs, such activities are not sufficiently structured for educational purposes. The appellant’s audience is merely being offered news and public affairs content. This may provide an opportunity for that audience to improve its knowledge of current affairs, but this offering is, at best, nothing more than the provision of an opportunity for individuals to educate themselves through the availability of materials with which this might be accomplished, but need not be.

The Court also distinguished an earlier case concluding that the Native Communications Society of BC was charitable as a publisher of a native focussed newspaper and similarly focussed broadcaster, by deciding that the case ought to be limited to natives, given their special legal status. Similarly, the Court distinguished a case finding the Vancouver Freenet to be charitable by observing that the Freenet was infrastructure, not merely content.

Fundamentally, the Court seemed to have been concerned with expanding what it views as the charitable giving tax expenditure. As a result, the Court suggested that any reputable news outlet would subscribe to the organization’s purposes. With all respect to the Court, this confuses the concept of a charitable purpose. A for-profit news outlet has the legal purpose of making a profit, albeit through the activity of providing news coverage. A non-profit news outlet has, as a matter of law, the news as its purpose, not merely as its activity. Thus, the concern about tax loss should not have been a concern here (even if it is ever a proper consideration for the Court in deciding charitable status).

Robert B. Hayhoe is a Partner at Miller Thomson LLP, (416) 595-8174,

Andrew Valentine is an Associate at Miller Thomson LLP, (416) 595-2980,

Reprinted with permission. First published in the July 2011 Miller Thomson LLP Charities and Not-for-Profit Newsletter.

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Recent CRA views on condo corporations as non-profit organizations

By Theresa L. M. Man

Recently, the CRA released a number of technical interpretations concerning whether condominium corporations qualify as non-profit organizations (NPOs). The following provides a brief summary of these documents.

In a situation involving a condominium operating a golf course, pro shop and restaurant (CRA #2010-0379561I7), the CRA was of the view that the condo did not qualify as an NPO because the golf course was operated with a profit motive and income of the condo was available to the members. Regarding the profit purpose of the corporation, the golf course had net income in an amount that was more than incidental when compared to the overall budget of the corporation. Further, the operation of the golf course did not appear to support the not-for-profit objective of a condo corporation. Regarding the shareholder benefit issue, not only did the condo owners play free rounds of golf, but the income from the golf course was used to reduce the condo owners’ condo fees.

The CRA also expressed concern about an additional reserve fund not required under the applicable provincial condo legislation and questioned whether the reserve fund was reasonable under the circumstances. The CRA also raised the possibility that the condo might be recognized to be an NPO whose main purpose was to provide dining, recreational or sporting facilities, thereby subjecting its income from property be liable for income tax.

Another scenario (CRA #2010-0380451E5) involved a condo intending to install solar panels on its roof in order to generate electricity which would be sold to the Ontario Power Authority under its "Feed in Tariff" program. The revenues would be used by the condo to cover general operational and financing costs, which are normally paid by members' fees. The CRA indicated it is generally of the view that the solar panel project may be connected to the not-for-profit objectives of the condo. If this is the case, and the profit related to the project is incidental, then participation in the "Feed-in Tariff" program would not prevent the condo from meeting the requirements to be an NPO.

In a different situation (CRA # 2011-0405541I7), a condo rented space to telecommunication providers to set up and maintain a telecommunications tower (cell tower) on space that formed part of the common area of the condominium building or premises. The telecommunication providers pay fairly significant amount in rents, which was used to reduce members’ condo fees. The CRA was of the view that incidental income from the rental of common areas may be treated as income of the condo corporation and generally will not affect the tax-exempt status of the condo. “Incidental”, in this context, means both minor and directly related to activities undertaken to meet the condo’s not-for-profit objectives of managing and maintaining the condo property and required reserves. However, where applicable provincial condo legislation supports that the common area rented out does not belong to the condo corporation, but belongs to the condo owners as tenants in common, then the income is not the income of the corporation but is instead the income of the unit owners. In that situation, CRA was of the view that the condo may be better viewed as acting as an agent for the unit owners in entering into any cell tower arrangements. If this is the case, then such arrangements generally would not jeopardize the tax-exempt status of the condo, although the related profit would have to be allocated appropriately among unit owners for tax purposes. On the other hand, where the relevant provincial law indicates that the income is the income of the condo corporation, and the income generated is not incidental, then the corporation may not qualify as an NPO, since the income from a cell tower arrangement would likely be available for the personal benefit of members of the condo through a material reduction in members' condo fees.

For a more detailed explanation, these technical interpretations are available through commercial subscription services or a direct request to the CRA.

Theresa L. M. Man is a partner at Carters Professional Corporation, (519) 942-0001 ext. 225 or toll free at 1-877-942-0001,

Reprinted with permission. This article first appeared in Carters Professional Corporation’s Charity Law Update July/August 2011.

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Saskatchewan’s Charitable Fund-raising Businesses Act

By Rupert Baudais

Saskatchewan’s Charitable Fund-raising Businesses Act, (the Act), S.S. 2002, c. C-6.2, and regulations, RRS c C-6.2 Reg. 1, have been in force since 2003. This legislation requires licensing of all businesses which solicit contributions or manage fund-raising on behalf of a charitable organization from residents of Saskatchewan. Section 5 states that no person shall act as a fund-raising business without holding a licence under the Act. The Act excludes employees of charitable organizations or entities which provide only consulting and are not involved in solicitation. Alberta has similar legislation however this article does not make any comparisons between the two provinces.

“Solicitation” is given a fairly broad definition in subsection 2(n) of the Act; “solicitation” includes all requests to a member of the general public for a contribution where it is stated or implied that all or part of the money will be used by a charitable organization for a charitable purpose. Solicitation includes door to door, by phone, by mail, or “any other prescribed solicitation” (section 17).

The Act requires that a written “Fundraising Agreement” be entered into between the charity and a fund-raising business. The Act identifies some of the basic points to be covered in such an agreement and a copy must be filed with the designated Saskatchewan provincial registrar. The regulations require filing of the fundraising agreement 30 days before a fundraising campaign begins. The registrar’s view is that the Act applies equally to businesses based in Saskatchewan and those based outside the province which solicit donations in this province on behalf of charities. The legislation aims at regulating fund-raising businesses acting in the province and involves the filing financial statements (section 29), production of records (section 32) and possible audits (section 31).

The Act states that “…an extra-provincial corporation that acts in Saskatchewan as a fund-raising business is deemed to be carrying on business in Saskatchewan” and therefore must be registered in the province. It would appear likely that a number of extra-provincial individuals and corporations may be contravening the Act unintentionally at present.

There is no doubt that if the business of soliciting donations (as opposed to the Charity itself) has people going door to door, that they are “acting in Saskatchewan” and are subject to the Act. Things become less clear when it comes to extra-provincial solicitation through telephone or the mail. The term “acts in Saskatchewan” appears in no other Saskatchewan statute.

Saskatchewan’s registrar is of the view that “acts in Saskatchewan” covers anyone who is engaged in solicitation of Saskatchewan residents. There are currently only 10 fund-raising businesses registered in the province. This appears to be a relatively small number.

The penalty under section 46 of the Act for a first offence in the case of an individual is a fine not exceeding $10,000, to imprisonment not exceeding one year or both. In the case of a corporation a first offence is a fine not exceeding $25,000, although any directors, officers, or agents of the corporation who “directed, authorized, assented to, acquiesced in or participated in the commission of the offence” is guilty of the offence and liable for the penalty as an individual. Enforcement is through the provincial Summary Offences Procedure Act and regulations. According to the registrar there have not yet been any prosecutions or fines for violations of the Charitable Fund-raising Businesses Act.

Charities should ensure that if they are hiring an external fundraiser to solicit in Saskatchewan, that the company is legitimate and licensed to do the solicitation. The Act does not create an offence for a charity if their external fundraiser is not licensed, however a fund-raising business licensed under the Act offers some protection for the charity. The fund-raising business might be required to be bonded (section 13), it will have to file the fund-raising agreement with the registrar who examines it for compliance with the Act, and the registrar could be called upon to intervene later if the Charity encounters problems with the fund raiser. Counsel and management for fund-raising businesses should be aware of the potential penalties for failing to comply with the Act.

Finally, one provision of the Act which applies to all types of agreements with fund-raising business regarding “the management…. of a solicitation” is the possibility for the charity to make a court application to have their fund raising agreement declared void because it is contrary to public policy (section 27). Making such an application would be possible even without the Act, but the potential outcome would be quite speculative. However, the Act adds the statutory provision that in making its determination as to the validity of the agreement, the Court “shall take into account the provisions of this Act and the regulations.” This would add at least some weight and guidance in an application to invalidate an agreement.

Rupert Baudais is an associate at Miller Thomson LLP in Regina, (306) 347-8302,

Reprinted with permission. First published in the July 2011 Miller Thomson LLP Charities and Not-for-Profit Newsletter.

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Written resolutions in lieu of meetings

By Joel Secter

Federally incorporated non-share corporations can expect many changes when the new Canada Not-for-profit Corporations Act (the “CNCA”) comes into force. For example, the directors and members of non-profits will be able to pass resolutions in lieu of holding meetings (This practice has not been acceptable since the late 1990s when Corporations Canada determined that written resolutions in lieu of meetings are not permitted under the Canada Corporations Act (the “CCA”). Although there are inherent benefits to transacting business at meetings, the change will undoubtedly be welcome news to organizations for which the requirements to have the directors and members in the same place at one time is cumbersome.

Meetings have long been considered essential so that directors and members can exercise their respective control over the corporation and, as mentioned, under the CCA written resolutions in lieu of meetings are prohibited. Consequently, maintaining a non-share corporation has required organizations to deal with the requirements for giving notice of meetings as well as the need to get all the directors or members together at the same time in person or virtually. In addition, according to Policy Statement 13.1, non-profits are required to keep, among other things, minutes of all directors’ and members’ meetings in the custody of the secretary or another officer specially charged with that duty. (Adequate accounting records are to be kept at corporation’s head office.)

In this way, the CCA differs from modern corporate statutes such as the Canada Business Corporations Act and the Ontario Business Corporations Act, which both allow directors and shareholders to pass written resolutions in lieu of meetings. When passed, these resolutions have the same effect as if they were adopted at a duly constituted meeting. The legislation governing share capital corporations, after which the CNCA is modeled, also allows directors and shareholders to sign in counterpart, meaning that not everyone is required to sign the same physical copy of a document.

While the directors and members of non-share corporations will finally be allowed to adopt resolutions in lieu of meetings under sections 127(5) and 166(1) of the CNCA respectively, not all business of the corporation will be allowed to be transacted by resolution. Directors will only be allowed to:

  1. make by-laws;
  2. adopt forms of debt obligation certificates and corporate records;
  3. authorize the issue of debt obligations;
  4. appoint officers;
  5. appoint a public accountant to hold office until the first annual meeting of members;
  6. issue memberships; and
  7. make banking arrangements.

Members, on the other hand, are less restricted. With limited exception, a resolution in writing dealing with all matters required by the CNCA to be dealt with at a meeting of members satisfies all the requirements of the CNCA relating to meetings of members. These resolutions will be as valid as if they had been passed at a meeting of the members. Copies of every resolution signed by all the directors and all the members must be kept with the minutes of meetings of directors and members respectively.

It is also important to note that certain resolutions, such as when the members of a soliciting corporation approve the annual financial statements by written resolution rather than at a meeting, will need to be sent to Corporations Canada without delay.

Allowing written resolutions in lieu of meetings will be most helpful to organizations for which attendance at meetings is an issue. Understandably, meetings are more difficult and costly to arrange and hold: they require notice to be given and having participants in the same place at the same time. This can be particularly onerous for larger organizations with large boards or membership bases that are geographically spread out. Notwithstanding the obvious upside to this change in terms of organizational efficiency and potential cost savings, meetings are often preferable because they afford the opportunity for more fulsome discussion and deliberation on issues facing organizations.

Joel Secter is a lawyer at Drache Aptowitzer LLP

This article was first published on Drache Aptowitzer LLP’s website in July 2011 and is reprinted here with permission.

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CRA News

By Karen J. Cooper

Charities Connection #7

In June, the CRA issued Charities Connection #7. This issue contains information on: the 2011 Budget and its effects on RCAAAs, registered charities, and other registered donees; a training program on the Income Tax Act for charity volunteers; a “Charities and Giving” webpage update; new guidance on using an intermediary to carry out a charity’s activities within Canada; a reminder to charities with a year end of December 30, 2010 to file form T3010 by June 30, 2011; and the Prime Minister’s Volunteer Awards.

Charities Connection #8

In August, the CRA issued Charities Connection #8. This issue contains information on: fundraising, tax receipts and split-receipting; corporate purchases and sponsorships; third party fundraisers; and the first call for nominations for the Prime Minister’s Volunteer Awards for exceptional contributions of volunteers, local businesses and non-profit organizations.

Service standards for Charities Directorate

In order to effectively promote compliance with income tax legislation through consistency, education, quality service and responsible enforcement, the Charities Directorate has set the following service targets:

  1. Respond to a telephone call waiting in the queue within two minutes, 80% of the time;
  2. Review and respond to a simple application for charitable registration (e.g. exclusively charitable purpose and activity) within two months of receiving the complete application, 80% of the time; and
  3. Review and respond to a regular application for charitable registration within six months of receiving the complete application, 80% of the time.

More information on the new service standards is available online.

Residency and the public service body tax rebate

The CRA recently released a GST/HST Info Sheet (CRA #GI-121) explaining the rules for determining the provincial residency of a Public Service Body (“PSB”). For the purpose of the Info Sheet, PSBs include non-profit organizations and registered charities, as well as other bodies such as municipalities, hospitals and schools. Determining residency is important for charities because residents in participating provinces may be eligible to claim a PSB rebate for the provincial part of the HST on eligible expenses, at the applicable provincial rate.

For greater detail and a helpful flowchart and worksheet, view the Info Sheet online.

CRA comments on the issuance of a T2202A from a registered charity

The CRA recently issued some general comments (CRA technical interpretation #2010-038401) in response to a request by a registered charity seeking confirmation as to its ability to issue T2202A Tuition, Education and Textbook Amount Certificates. Generally, in order for an individual to make use of such a certificate and claim the associated tax credit, the following three criteria must be met: (1) the individual must be enrolled in a university, college or other educational institution in Canada, (2) the courses must be at the post-secondary level, and (3) the fees paid must have exceeded $100. A registered charity’s ability to issue a T2202A Certificate depends on the specific facts of each particular situation and on fulfilling the requirements in section 118.5(1)(a)(ii) of the Income Tax Act.

Karen J. Cooper is a Partner at Carters Professional Corporation, 519-942-0001 or toll free at 1-877-942-0001,

Reprinted with permission. This article first appeared in Carters Professional Corporation ’s Charity Law Update July/August 2011.

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Message from the Chair – welcome

By Peter Broder

As incoming Chair of the Charities and Not-for-Profit Law Section, I would like to welcome both new and returning members to the Section. Over the years the Section has developed, most recently under the able leadership of Terry Carter, a reputation for frequent and influential policy advocacy, and we hope to build on that work in the coming year. In our latest submissions, we made recommendations on proposed changes to the T3010 and commented on measures contained in the June 2011 Federal Budget.

The Executive Committee of our Section is made up of 30 members from across Canada, and currently has more than a dozen working groups tracking the progress of legislation, regulations or administrative guidance or developing submissions on policy matters. Additionally, representatives of the Section Executive serve on the Technical Issues Working Group of the Canada Revenue Agency. This Group provides a forum to deal with some of the administrative and policy questions of general interest to Section lawyers and more broadly to the charitable sector. The Section is also well-regarded for its professional development offerings, the cornerstone of which is our annual Symposium – held in conjunction with the Ontario provincial branch of the Section – every Spring.

The likely advent of the new Canadian Not-for-Profit Corporations Act, implementation of several key changes to regulation of charities and other qualified donees stemming from the 2011 Federal Budget and continuing talk of measures to promote more social entrepreneurship suggest that the coming year will be a very full one.

With this active agenda, we are always looking for ways to encourage more participation from our members. We hope you will follow these newsletters as a way to keep apprised of legal developments in charity and not-for-profit law, and of the activities of the Section. If you want to become more involved feedback on policy submissions, contributions to the newsletter or participation in the Section Executive (the next opportunity to join will be in July 2012) are always welcomed.

In the event that you would like to become more involved in our Section, or if you have any comments or questions, please feel free to contact me via email.

Peter Broder is a general counsel and policy analyst for The Muttart Foundation, (780) 425-5356,

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Mark your calendar! – Alberta CLE

All are welcome to register for a continuing legal education seminar on “Advising Charities and Not-for-Profit Organizations” to be presented by the Legal Education Society of Alberta. This program will focus on the fundamentals of charity and not-for-profit law. Expert speakers will review the process of obtaining registered charitable status and the appropriate organizational structures (including a discussion on the new Canada Not-for-profit Corporations Act). Director’s liability, legal and tax issues effecting gifts and fundraising will be covered.

Lawyers who advise or sit on boards of charities should not miss this important session and the further resources that will be shared. The seminar will be chaired by CBA national executive member Yvonne Chenier of Drache Aptowitzer LLP and papers will be presented by many of the CBA Alberta Charities section members. Choose to attend in either Edmonton on February 1, 2012, or Calgary on February 8, 2012, from 9:00 AM - 4:30 PM. Register for $395 + GST (Early Bird: $355 + GST before December 20, 2011).

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M. Elena Hoffstein
Kate Lazier
E-Publications Editor:
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Rose Steele
Staff Liaison:

Catherine Bisson

Rupert Bandais
Peter Broder
Karen Cooper
Robert Hayhoe
Kate Lazier
Theresa Man
Joel Secter
Andrew Valentine

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The views expressed in the articles contained herein are solely the views of the authors, and do not necessarily represent the views of the Canadian Bar Association.


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