Once a donor has agreed to donate funds to a charitable institution, are they entitled to have any input as to how those funds are spent? Does that donor have any recourse if their funds are not being spent the way they envisioned? Faas v. CAMH, 2018 ONSC 3386, 2019 ONCA 192 provides some insight regarding these questions.
At the direction of its principal, Andrew Faas, the Faas Foundation agreed to donate $1 million to the Centre for Addiction and Mental Health and its fundraising arm (collectively “CAMH”). The funds were to establish a mental health program entitled “Well@Work”. Accordingly, Mr. Faas’ payments were to be made in installments of $333,000 each year for the next three years.
Mr. Faas signed a Donor Investment Agreement (the “DIA”) which outlined a proposal for the program. The DIA also provided that an annual status report was to be provided to Mr. Faas. Nearly one year into the development of the program, Mr. Faas informed CAMH that he was not satisfied with the program’s progress, the extent of reporting or the expenditure of the donation. The parties reached an impasse with regards to these matters and Mr. Faas refrained from making the remaining two payments. He also requested that CAMH forward any money not spent on the first installment to another Canadian agency. However, all of the money for the first year had already been spent by CAMH on the development of the program.
In response, Mr. Faas commenced an application based on section 6 of the Charities Accounting Act which provides:
(1) Any person may complain as to the manner in which a person or organization has solicited or procured funds by way of contribution or gift from the public for any purpose, or as to the manner in which any such funds have been dealt with or disposed of.
. . .
(3) Wherever the judge is of opinion that the public interest can be served by an investigation of the matter complained of, he or she may make an order directing the Public Guardian and Trustee to make such investigation as the Public Guardian and Trustee considers proper in the circumstances.
The Ontario Superior Court of Justice found that there were no grounds on which to order the Public Guardian and Trustee (the “PGT”) to conduct an investigation because there was no identifiable public interest. Furthermore, no mischief was identified and nothing in the records indicated that CAMH had mismanaged the funds.
Justice Morgan stated that inquiries under the Charities Accounting Act should not be initiated lightly and that they should not “simply be for the sake of meddling.” They must only be invoked when real mischief to the public at large exists.
Mr. Faas’ complaint was not that CAMH had failed to use the donation for their own charitable objectives but that they did not use their donation in a manner that conformed to Mr. Faas’ personal vision. This did not go against public interest, but rather a private one.
The Ontario Court of Appeal agreed with the decision of the Ontario Superior Court of Justice and dismissed the appeal.
Faas v. CAMH emphasizes that while an unsatisfied donor does have a potential recourse of asking the PGT to conduct an investigation under the Charities Accounting Act as to how their funds were spent, an investigation will not be initiated without some evidence of mismanagement. As such, once a donor has agreed to make a donation, and as long as the charitable organization is not mismanaging the funds, the donor cannot retract their donation simply because the organization is not strictly adhering to the donor’s vision.
Thanks for reading!
Ian Hull and Celine Dookie
‘Doctor shopping’ is the practice of visiting numerous doctors, dentists, pharmacies and/or emergency rooms to fraudulently obtain prescriptions for non-medicinal use. Increasingly making headlines, doctor shopping is considered to be the most common means by which people addicted to prescription drugs get their hands on their drugs. It is often assumed that someone doctor shops for the purpose of feeding their own personal addiction, however, there is a subset of doctor shopping activity for the intent of street sale. Depending on the drug, street value can range from $0.25 to $75.00, per pill.
Is it illegal? Under the federal Narcotic Control Regulations (made under the Controlled Drugs and Substances Act, 1996), “a person who has received a prescription for a narcotic shall not seek or receive another prescription or narcotic from a different practitioner without disclosing to that practitioner particulars of every prescription or narcotic that he or she has obtained within the previous 30 days”. To wit, in 2006, a Toronto woman was charged with filling prescriptions for almost 14,000 pills at nine pharmacies across the province.
How is it monitored? Nine of ten provinces have some form of system in place to track prescription-related information such as double doctoring. As an example, in 2008, Health Canada ordered pharmacies in Atlantic Canada to track narcotic prescriptions by family physicians after rates of narcotics abuse were found to be highest in that region. However, since there is no national surveillance system in place, the monitoring of doctor shopping and fraudulent prescription drug acquisition in Canada is a patchwork approach, at best.
How big is the problem? In 2002, Canada reported the fourth highest per-capita use of prescription narcotics in the world. The Centre for Addiction & Mental Health, in a study published that same year, indicated that 11% of admissions to substance abuse treatment programs in Ontario were for prescription drug abuse. A 2007 study released by the Canadian Centre on Substance Abuse (CCSA) cited evidence that “Canadians are among the heaviest consumers of psychotropic medication in the world”. And according to a 2008 study published in the journal Contemporary Drug Problems, North America has the world’s highest consumption of medical prescription opioids (consumption levels have, in fact, doubled in the past decade). Earlier this year, Narconon Alcohol and Drug Rehab Center reported that nearly half the calls they receive are with regards to prescription medications (primarily Oxycodone, Percocet and morphine).
How does prescription drug abuse relate to mental capacity? The most coveted drugs targeted by doctor shoppers are the opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet/Percodan, OxyContin and other pain-relieving agents) and the benzodiazepines (including Valium, Serax, Xanax, Ativan and Halcion and other agents used for sedation, relief of anxiety or as muscle relaxants). These drugs are known to have detrimental effects on perception, attention, alertness, memory, orientation, attention and decision-making.
Jennifer Hartman, guest blogger