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Charities often receive requests from businesses, individuals and other charitable and non-profit organizations to use their facilities. Financially this makes sense, particularly if rental income can be generated from facilities that are underutilized by the charities themselves. In doing so, charities must ensure that they do not violate the rules in the Income Tax Act applicable to business activities by registered charities, which we have addressed in previous issues of this Newsletter. Charities must also be cognizant of the increased risk of liability arising from permitting third party use of their facilities, as well the potential for human rights claims should a charity inappropriately restrict users for reasons based on the charity’s particular religious beliefs.
Generally, when a religious organization allows rental of its facilities to outside user groups, the facility might then become seen as a “public use” facility that is open to any and all activities not barred by law, even if the activities are contrary to the sincerely held religious beliefs of the organization. Should an attempt be made to restrict third party user groups due to values perceived as unacceptable, a religious organization must be careful to ensure it is not acting in a discriminatory manner contrary to applicable human rights legislation.
As a matter of due diligence in evaluating risk, all charities (whether or not religious) need Facility Use Policies and Facility Use Agreements that include prohibitions on activities that represent an unreasonable risk of harm. Religious charities may also want to give consideration to setting limits against uses that are contrary to the religious beliefs of the organization through Facility Use Policies and Agreements that reflect the charitable purpose and religious beliefs of their particular religious organization. The charitable purpose is to be found in the governing documents. Facility Use Policy Statements reflecting this religious purpose can be of assistance in articulating religious beliefs, in order to lessen the chance that a religious charity might be compelled to allow a facility use that is disagreeable to the Members for religious reasons. A Facility Use Policy for these organizations may provide for limiting the use of facilities to programs and charitable purposes which are consistent with their own statement of faith and constitution, thereby strengthening the right to refuse a request for uses viewed as inconsistent with the organization’s religious beliefs.
Even with an appropriate Facility Use Policy, it may still be that a human rights complaint can be brought. We therefore recommend that any religious charity seeking to deny rental access for religious reasons first get specific legal advice.
Miller Thomson lawyers can assist charities to develop appropriate Facility Use Policies to address these issues, and can advise on when it may be appropriate to restrict use in particular circumstances.