The following are legal Q and A's asked by Ontario organizations and answered by VLS lawyer volunteers. These legal questions and answers are posted here to assist other organizations with similar questions. Any information provided here should not be considered legal advice and does not take the place of consulting with a lawyer.

Q: "Are there a minimum number of board meetings required if not stated in our by-laws?"

For Ontario incorporated non-profit corporations, the Ontario Corporations Act (ss.129 (1)), indicates which matters may be included in its by-laws, among which is "(i) the time and place and the notice to be given for the holding of meetings of the members and of the board of directors….." There is no comparable statement in the Canada Corporations Act for federally incorporated organizations.

That said, the directors are legally responsible under both legislative regimes for the management of the corporation and can be held liable for failure to discharge this very fundamental legal obligation. This necessarily requires that the Directors meet periodically to review the activities of the Corporation and to make the required decisions by voting on properly constructed resolutions.

Therefore, as a practical legal matter the Board will invariably be required to establish a minimum schedule for Board meetings in order to discharge their legal obligations. There is no legally required minimum number of meetings and their frequency will be dependent on the nature of the Corporation and the Directors' perception of how much of their time is required in order to discharge their legal obligations.

Q: "We are setting up a website and want to know if we can post archival photos that were taken over the last 35 years to the present. Do we need permission from each individual in the pictures before doing so? Secondly, in future, is it sufficient to announce at events that we are taking pictures that may or may not end up on our website, and ask if anyone has any objections to let us know so we do not take their photo? Is this enough or do we need to get a release form from every participant for every event?"

When a non-profit (or anyone else for that matter) wants to post photographs of participants in the non-profit's activities or fundraising activities on their website, there are two important issues to consider: (1) the rights of the individuals who appear in the pictures (the "Subjects"); and (2) the rights of the photographer (or copyright owner).

The Rights of the Subjects: In Canada, individuals enjoy certain rights which may be invoked to prevent (or claim damages from) the unauthorized posting of a photograph of the individual. Individual rights may be asserted through an action for invasion of privacy (which is recognized to be a tort or legal wrong) and/or an action for appropriation of personality (which applies generally only to celebrities).
In some provinces, the tort of invasion of privacy has been recognized by statute, in others it is a common law tort. For example, in British Columbia, under the Privacy Act, it is a tort, is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another. It is also a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose. There are exceptions for shots of groups and where the individuals are not specially identified. For example, the BC Court has found that an employer who utilized the photograph of a former employee in promotional materials without the employee's consent was liable to damages of $15,000 for invasion of privacy. The BC Privacy Act will likely help to inform and shape the ambit of the common law tort of invasion of privacy in provinces like Ontario where there is no such legislation.

Additionally, because images available on the Internet are available throughout the world, potential liability under foreign legal rules must also be considered.

Appropriation of personality may give a celebrity a cause of action where his or her personality (in this context, a photograph) is used to endorse a product or service without his or her consent. A celebrity has a commercial property right with regard to his or her photograph or likeness when it is used in advertisements, however, where a photograph is not used for commercial purposes there is likely no cause of action.

The best way to minimize risk is to ensure that you have the consent of the Subjects to the use of their images on the website. While the sort of "negative option" consent of requiring participants to expressly opt-out of having their picture posted may go some way to showing that the individual did not have a reasonable expectation of privacy, the better option is express consent to the posting of the actual photograph in question. Of course, where there are large group shots and no individual is particularly identified or singled out, the need to obtain consent would not be as significant. As a general practice, you should provide notice to those being photographed at events of the uses the photographs may be put to. You should not take surreptitious pictures. The Subjects should be asked if they would like to be photographed prior to photographing them and, in an ideal world, that consent would be in writing. Practically, a charity should consider whether the benefit of posting the pictures is outweighed by the potential embarrassment and or legal costs associated with having to take them down.

The Rights of the Photographer (or Copyright Owner): According to section 13 of the Copyright Act, the owner of the initial negative is deemed to be the photograph's author and the owner of the copyright in the photograph. In the case of commissioned photographs however, and in absence of any agreement to the contrary, the person who orders a photograph for valuable consideration is the owner of the copyright in the photograph. Copyright includes the exclusive right to make, or authorize the making of copies of a work. In the case of photographs, before any photograph is posted to a website (and thus copied), a non-profit should make sure that it owns the photograph or has permission from the copyright owner to post the photograph to its website.