Muldoon,
J:—This
case
involves
a
dispute
between
the
plaintiff
and
the
Minister
of
National
Revenue
concerning
sums
of
money
paid,
and
charitable
deductions
claimed,
by
the
plaintiff
to
three
non-profit
corporations,
all
incorporated
under
the
laws
of
Ontario,
which
operated
Christian
religious
schools
in
that
province.
The
three
non-profit
corporations
are
the
Ottawa
Christian
School
Association
(hereinafter:
OCSA),
The
Community
For
Christian
Learning
Association
of
Ottawa
(hereinafter:
CCL)
and
The
Immanuel
Christian
School
So-
ciety
of
East
Toronto
(hereinafter:
ICSS).
At
all
material
times
each
of
the
OCSA,
CCL
and
ICSS
was
registered
as
a
charity
by
the
defendant’s
Minister
of
National
Revenue
(hereinafter:
the
minister),
pursuant
to
the
provisions
of
the
Income
Tax
Act.
The
source
of
the
dispute
between
the
parties
is
the
Minister’s
disallowance
as
deductions
of
significant
portions
of
the
total
amounts
paid
by
the
plaintiff
to
the
three
charities
during
the
1976
and
1977
taxation
years.
The
plaintiff
is
the
father
of
four
children
who
all
attended
the
three
schools
at
times
during
the
two-year
period
under
consideration.
The
defendant
contends
that
the
disallowed
portions
of
the
plaintiffs
payments
must
be
allocated
to
what
the
Minister
judges
to
be
tuition
fees
which,
on
the
authority
of
this
court’s
decision
in
The
Queen
v
Zandstra
[1974]
2
FC
254;
[1974]
CTC
503;
74
DTC
6416,
(inter
alia)
he
asserts
cannot
be
a
charitable
donation.
As
to
the
purpose,
objectives,
nature
and
quality
of
the
education
imparted
in
and
by
those
particular
Christian
schools,
much
evidence
was
adduced,
both
viva
voce
and
by
documents.
It
warrants
some
more
detailed
consideration
here,
but
at
this
stage
one
simplified
finding
will
be
sufficient.
The
plaintiff
and
others
who
are
participating
members
of
the
three
charitable
school
corporations
are,
on
religious
grounds,
not
satisfied
with
the
nature
of
the
education
provided
by
the
tax-supported
schools
of
Ottawa
and
Toronto,
respectively.
Neither
are
those
parents,
who
are
not
members
of
the
three
Christian
school
corporations,
but
whose
children
are
enrolled
in
the
particular
schools.
That
is
to
say,
the
public
schools,
providing
a
necessarily
secular
education,
do
not
impart
that
hour-by-hour,
subject-by-subject
infusion
of
Christian
values
and
interpretation
of
subject
matter
which
the
plaintiff
and
his
fellows
seek
for
their
children’s
education.
Neither
do
the
Roman
Catholic
Separate
Schools.
Although
the
plaintiff
testified
that
one
Roman
Catholic
family
had
enrolled
their
child
in
the
OCSA
school,
neither
the
plaintiff
nor
the
other
supporters
of
these
Christian
schools
is
a
Roman
Catholic,
apparently,
and
so
the
Roman
Catholic
Separate
Schools
are
not
ideally
appropriate
for
their
children’s
education.
Studies
of
the
Bible
and
of
the
Christian
religion
are
not
merely
core
subjects
of
those
schools,
because,
transcending
the
teaching
of
particular
subjects,
Christian
thought,
perceptions,
values
and
works
permeate
the
entire
educational
formation
[of]
the
young
people
who
are
enrolled
in
those
schools.
The
charitable
quality
of
the
schools
operated
by
the
three
non-profit
corporations
could
well
be
characterized
as
both
educational
and
religious.
The
Income
Tax
Act
does
not
provide
any
comprehensive
definition
of
a
charity
and
so
the
Minister
and
taxpayers
alike
must
look
to
the
common
law
of
England,
which
we
have
inherited
and
received
in
Canada,
in
order
to
appreciate
the
legal
meaning
of
the
concept.
As
was
noted
in
the
House
of
Lords
decision
of
The
Commissioners
For
Special
Purposes
Of
The
Income
Tax
v
Pemsel,
[1891]
AC
531,
by
Lord
Macnaghten,
“charity”
is
a
peculiarly
English
concept
of
law
and
equity.
It
bears
a
legal
and
technical
sense
which
is
not
necessarily
or
always
consonant
with
that
of
common
parlance.
In
the
Pemsel
case
(AC
pages
580
and
581)
Lord
Macnaghten
wrote:
That
according
to
the
law
of
England
a
technical
meaning
is
attached
to
the
word
“charity”,
and
to
the
word
“charitable”
in
such
expressions
as
“charitable
uses”,
“charitable
trusts”,
or
“charitable
purposes”,
cannot,
I
think,
be
denied.
The
Court
of
Chancery
has
always
regarded
with
peculiar
favour
those
trusts
of
a
public
nature
which,
according
to
the
doctrine
of
the
Court
derived
from
the
piety
of
early
times,
are
considered
to
be
charitable.
Charitable
uses
or
trusts
form
a
distinct
head
of
equity.
Their
distinctive
position
is
made
the
more
conspicuous
by
the
circumstance
that
owing
to
their
nature
they
are
not
obnoxious
to
the
rule
against
perpetuities,
while
a
gift
in
perpetuity
not
being
a
charity
is
void.
Whatever
may
have
been
the
foundation
of
the
jurisdiction
of
the
Court
over
this
class
of
trusts,
and
whatever
may
have
been
the
origin
of
the
title
by
which
these
trusts
are
still
known,
no
one
I
think
who
takes
the
trouble
to
investigate
the
question
can
doubt
that
the
title
was
recognised
and
the
jurisdiction
established
before
the
Act
of
43
Eliz
and
quite
independently
of
that
Act.
The
object
of
that
statute
was
merely
to
provide
new
machinery
for
the
reformation
of
abuses
in
regard
to
charities.
But
by
a
singular
construction
it
was
held
to
authorize
certain
gifts
to
charity
which
otherwise
would
have
been
void.
And
it
contained
in
the
preamble
a
list
of
charities
so
varied
and
comprehensive
that
it
became
the
practice
of
the
Court
to
refer
to
it
as
a
sort
of
index
or
chart.
At
the
same
time
it
has
never
been
forgotten
that
the
“objects
there
enumerated’’,
as
Lord
Chancellor
Cranworth
observes,
“are
not
to
be
taken
as
the
only
objects
of
charity
but
are
given
as
instances.”
Further
on
in
his
reasons,
which
were
of
the
majority
in
the
Pemsel
judgment,
Lord
Macnaghten
explained
the
common
law
concept
of
a
charity
(AC
pages
583
and
584),
as
transmitted
through
the
Statute
of
43
Eliz
I,
and
how
it
may
diverge
from
the
ordinary
meaning
of
the
word:
How
far
then,
it
may
be
asked,
does
the
popular
meaning
of
the
word
“charity”
correspond
with
its
legal
meaning?
“Charity”
in
its
legal
sense
comprises
four
principal
divisions:
trusts
for
the
relief
of
poverty;
trusts
for
the
advancement
of
education;
trusts
for
the
advancement
of
religion;
and
trusts
for
other
purposes
beneficial
to
the
community,
not
falling
under
any
of
the
preceding
heads.
The
trusts
last
referred
to
are
not
the
less
charitable
in
the
eye
of
the
law,
because
incidentally
they
benefit
the
rich
as
well
as
the
poor,
as
indeed,
every
charity
that
deserves
the
name
must
do
either
directly
or
indirectly.
It
seems
to
me
that
a
person
of
education,
at
any
rate,
if
he
were
speaking
as
the
Act
is
speaking
with
reference
to
endowed
charities,
would
include
in
the
category
educational
and
religious
charities,
as
well
as
charities
for
the
relief
of
the
poor.
Roughly
speaking,
I
think
he
would
exclude
the
fourth
division.
Even
there
it
is
difficult
to
draw
the
line.
A
layman
would
probably
be
amused
if
he
were
told
that
a
gift
to
the
Chancellor
of
the
Exchequer
for
the
benefit
of
the
nation
was
a
charity.
Many
people,
I
think,
would
consider
a
gift
for
the
support
of
a
life-boat
a
charitable
gift,
though
its
object
is
not
the
advancement
of
religion,
or
the
advancement
of
education,
or
the
relief
of
the
poor.
And
even
a
layman
might
take
the
same
favourable
view
of
a
gratuitous
supply
of
pure
water
for
the
benefit
of
a
crowded
neighbourhood.
But
after
all,
this
is
rather
an
academical
discussion.
If
a
gentleman
of
education,
without
legal
training,
were
asked
what
is
the
meaning
of
“a
trust
for
charitable
purposes”,
I
think
he
would
most
probably
reply,
“That
sounds
like
a
legal
phrase.
You
had
better
ask
a
lawyer.”
The
three
non-profit
corporations,
OCSA,
CCL
and
ICSS
derive
their
registered
status
under
the
Act,
from
the
minister,
but
their
charitable
status
is
clearly
derived
from
the
common
law.
It
is
apparent,
then,
that
both
the
advancement
of
education
and
the
advancement
of
religion
are
firmly
and
favourably
rooted
in
the
public
policy
of
our
law.
Moreover,
it
is
not
stretching
matters
to
say
that
even
in
the
modern,
secular
age
the
advancement
of
religion
is
rooted
in
our
law
and
in
our
Constitution.
That
policy
is
readily
discernible
in
the
declaratory
preambles
to
the
Canadian
Bill
of
Rights,
RSC
1970,
Appendix
III
and
the
Canadian
Charter
of
Rights
and
Freedoms
which
both
affirm
that
Canada
“is
founded
upon
principles
that”
acknowledge
and
recognize
“the
supremacy
of
God”,
and
“the
rule
of
law”.
That
is
not
to
say
that
our
country
is
even
remotely
similar
to
the
theocracy
such
as
have
been
established
in
past
ages
and
in
the
present
day
in
some
countries.
Far
from
it.
We
do
not
have
any
established
church
or
state
religion.
Those
Canadians
who
profess
atheism,
agnosticism
or
the
philosophy
of
secularism
are
just
as
secure
in
their
civil
rights
and
freedoms
as
are
those
who
profess
religion.
So
it
is
that
while
Canada
may
aptly
be
characterized
as
a
secular
state,
yet,
being
declared
by
both
Parliament
and
the
Constitution
to
be
founded
upon
principles
which
recognize
“the
supremacy
of
God”,
it
cannot
be
said
that
our
public
policy
is
entirely
neutral
in
terms
of
“the
advancement
of
religion”.
(On
the
other
hand
it
seems
now
more
than
ever
before
to
turn
away
from
any
purported
“charity”
in
the
service
of
atheism.)
The
legal
and
constitutional
recognition
of
God
necessarily
imports
and
involves
a
polity
which
leans
in
favour
of
belief,
or
faith
—
that
is,
the
profession
of
religion
among
our
people.
Just
as
that
same
polity
(it
must
be
emphasized)
also
secures
the
rights
and
freedoms
of
those
who
profess
no
religion,
it
concurrently
turns
away
from
those
professions
of
religion
which
range
all
the
way
from
practices
inimical
to
the
security
of
our
people
and
our
constitution
to
practices
which
are
of
no
benefit
to
the
public.
This
is
another
perception
of
the
policy
of
the
law
and
the
Constitution.
The
latter
instance
of
no
objective
benefit,
for
example,
can
be
appreciated
in
the
judgment
of
Vice-Chancellor
Wickens
in
Cocks
v
Manners
(1871),
LR
12
Eq
574,
in
which
it
was
held
that
a
bequest
to
a
Dominican
convent,
whose
cloistered
religious
engaged
solely
in
private
prayer
without
any
wider
scope
or
public
element
or
objectively
provable
purposes
of
public
utility,
was
not
a
charitable
bequest,
even
though
the
intended
beneficiary
was
undeniably
professing
and
practising
religion.
So
it
is
that
the
registration,
or
not,
of
charities
for
income
tax
purposes,
and
their
de-registration,
are
performed
by
executive
acts
of
the
minister,
but
disputes
in
regard
thereto
are
to
be
resolved
by
the
judiciary.
Such
a
dispute
could,
for
example,
revolve
around
whether
or
not
a
“religious
society”
evinced
partisan
political
objectives
and
practices,
or,
less
likely,
but
nonetheless
possible,
whether
its
beliefs
generated
criminal
practices.
On
the
other
hand,
the
tenets
and
practices
of
Christianity
in
its
multitude
of
denominations,
and
of
Judaism
in
at
least
three,
if
not
more,
modes
of
observance,
constitute
two
well-known
examples,
among
others,
of
religions
professed
by
and
within
our
populace.
In
the
main,
the
institutions
and
congregations
of
Christians
and
Jews
in
Canada
clearly
evince
the
characteristics
of
registrable
charities
for
the
advancement
of
religion.
That
is
to
say,
they
are
seen
to
pass
the
test,
articulated
in
Cocks
v
Manners,
of
providing
“religious
services
tending
directly
or
indirectly
towards
the
instruction
or
edification
of
the
public”.
It
will
be
convenient
here
to
take
the
example
of
a
Christian
parish
or
congregation,
about
which
the
plaintiff
testified
from
personal
knowledge
and
experience
and
about
which
there
is
some
mention
in
the
jurisprudence.
Of
course
no
parish
ministers
to
all
of
the
public
Such
parish
churches
are
inevitably
supported
by
their
own
parishioners.
Some
parishioners
contribute
more
than
their
numerically
proportionate
share
of
the
upkeep
and
expenses
of
the
church.
In
truth,
those
parishioners
contribute
for
other
less
affluent
or
less
generous
parishioners.
Some
parishioners,
whether
through
lack
of
means
or
lack
of
generosity,
contribute
nothing
to
the
upkeep
and
expenses
of
the
church.
These
latter
parishioners
are
“carried”,
so
to
speak,
by
the
others.
And
while
the
parish
council,
board,
trustees,
or
churchwardens,
(however
styled)
are
always
trying
to
drum
up
at
least
a
fair
share
from
those
non-contributing
parishioners
who
are
thought
to
be
the
more
affluent,
or
less
generous,
yet
it
is
generally
observable
that
no
one
is
turned
away
from
public
acts
of
worship,
or
excluded
from
the
homily
only,
or
denied
pastoral
counselling,
or
barred
from
youth
groups,
Bible
studies,
or
parish
picnics
or
social
functions
only
because
he
or
she
contributes
less
than
a
proportionate
share
or
even
nothing.
It
is
only
natural
that
people
will
support
the
parish
church
of
their
choice
or
that
parish
which
canon
law
suggests
is
theirs,
partake
of
all
it
offers
(or
less,
by
choice)
and
make
their
charitable
donations
to
that
parish.
The
Department
of
National
Revenue
quite
rightly
does
not
purport
to
assess
the
benefits
which
parishioners
derive
from
their
parish
church
in
order
to
disallow
a
portion
of
their
donations.
As
was
noted
by
Maurice
Boisvert,
QC,
of
the
Tax
Appeal
Board
in
Aspinall
v
MNR,
[1970]
Tax
ABC
1073;
70
DTC
1669
(at
1080
[1673])
Is
such
a
fund-raising
project
so
very
different
from
an
appeal
on
behalf
of
charitable
organizations?
Anyone
who
gives
$100
knows
that
a
portion
wil
defray
the
costs
of
advertising,
administration
and
so
on.
Anyone
who
goes
to
church
and
pays
for
his
pew
to
ensure
the
upkeep
of
the
church
is
contributing
to
the
administration
of
the
church
he
attends.
In
both
cases
he
receives
a
receipt
for
his
full
contribution
without
any
deduction
for
administration
costs.
It
is
worth
emphasizing
that
according
to
the
state
of
the
law
today,
contributors
to
parish
churches
are
rightly
entitled
to
full
income
tax
deductions,
up
to
the
prescribed
limits,
for
their
contributions
even
though
they
receive
the
manifest
and
multifold
benefits
of
their
parish
worship,
instruction,
pastoral
services
and
counselling,
year
in
and
year
out,
for
themselves
and
their
children.
Contributing
little
or
nothing
does
not
bring
about
expulsion,
nor
do
parishes
sue
their
noncontributing
parishioners
for
a
contribution.
There
can
be
no
doubt
that
the
sermons
and
homilies,
the
Bible
study
groups
and
the
Sunday
schools,
the
adult
counselling
and
marriage
preparation
courses
can
be
characterized
as
both
educational
and
religious,
but
nothing
about
that
characterization
entitles
the
Department
of
National
Revenue
to
vivisect
the
parishioners’
contributions
for
income
tax
purposes.
Parliament
has
not
authorized
the
Minister
of
National
Revenue
to
do
that.
It
has
been
noted
that
the
public
policy
of
our
law
favours
the
establishment
of
charities,
among
which
are
the
advancement
of
education
and
the
advancement
of
religion.
A
reported
decision,
in
which
the
judge
comprehensively
reviewed
the
authorities
in
this
field,
is
that
of
Re
Morton;
Yorkshire
&
Canadian
Trust
Ltd
v
Atherton
et
al,
[1941]
4
DLR
763.
In
that
case
Mr
Justice
Fisher
of
the
Supreme
Court
of
British
Columbia
had
to
construe
a
bequest
of
money
on
trusts
“in
favour
of
educational
and
religious
object
in
connection
with
the
Baptist
Denomination
in
the
Province
of
British
Columbia”.
He
wrote
(at
784,
DLR)
In
the
present
case
the
gift
is
not
left
to
the
trustees
to
use
as
they
may
judge
most
conducive
to
“educational
and
religious
objects’’
but
is
left
to
them
to
be
used
in
favour
of
educational
and
religious
objects
as
aforesaid.
It
is
true
that
the
gift
here
is
not
expressly
stated
to
be
to
a
particular
church
as
it
was
in
the
case
of
Re
Barnes,
Simpson
v
Barnes,
[1930]
2
Ch
80n
and
in
the
case
of
Re
Schoales,
[1930]
2
Ch
75,
but
in
such
cases
the
Court
had
to
answer
the
question
as
to
who
were
the
persons
or
what
was
the
institution
or
body
meant
by
the
words
“the
Roman
Catholic
Church’’
or
“the
Church
of
England”.
It
is
clear
from
the
arguments
and
the
judgments
that
in
each
of
these
cases
such
question
was
first
considered
and
answered
in
order
to
determine
whether
the
meaning
of
the
words
used
by
the
testator
was
that
the
gift
was
made
to
be
an
operative
institution
“which
ministers
religion
and
gives
spiritual
edification
to
its
members’’
and,
if
so,
thus
to
determine
that
it
was
for
those
very
purposes
and
therefore
a
good
charitable
gift.
In
the
case
at
bar,
although
the
plaintiffs
contributions
to
the
OCSA,
CCL
and
ICSS
were
not
made
to
be
an
operative
institution,
they
were
made
to
each
operating
institution
which,
according
to
the
documentary
and
viva
voce
evidence
here
truly
“ministers
religion
and
gives
spiritual
edification
to”
the
pupils
enrolled
in
the
schools.
Filed
as
Exhibits
3,
4
and
5
were
compendious,
tabbed
books
of
agreed
admissibility
containing
copies
of
documents
relating
respectively
to
OCSA,
ICSS
and
CCL.
What
those
books
of
documents
reveal
was
explained
and
confirmed
by
the
three
witnesses
at
trial.
Each
exhibit
book
contains
a
copy
of:
Letters
Patent
of
Incorporation
in
Ontario
(Exhibits
3A,
4A,
4B
and
5D);
the
constitution
and
by-laws
of
the
non-profit
corporation
(Exhibits
3B
3C,
4C,
5E);
the
school
curriculum,
except
for
Exhibit
4,
ICSS,
(Exhibit
3F
and
5J)
and
financial
statements
including
revenue
and
expenditures
(Exhibits
3H,
31,
4F,
4G,
4H,
41,
5L,
5M,
SN
and
50).
The
exhibits
reveal
a
certain
anxiety
about
maintaining
revenues
in
the
form
of
contributions
from
the
parents
of
pupils
and
the
members
of
the
particular
society.
Thus
the
respective
treasurers
of
OCSA
(see
Exhibit
3D)
and
CCL
(see
Exhibit
5K)
are
seen
to
be
exhorting
parents
and
other
members
to
make
contributions.
Exhibit
3D
is
dated
May
25,
1976
and
Exhibit
5K
is
dated
July,
1977.
Read
in
light
of
each
corporation’s
constitution,
the
respective
curricula
demonstrate,
as
the
witnesses
testified,
that
the
subjects
offered
are
taught
as
vehicles
for
the
expression
and
inculcation
of
religious
faith.
Robert
Hudspith,
who
holds
a
Master’s
degree
in
engineering
from
McMaster
University,
was
the
first
headteacher
in
the
CCL
school
which
opened
in
1975.
During
the
previous
year,
he
had
been
the
chairman
of
the
CCL
board
of
directors.
He
testified
that
the
Ontario
Ministry
of
Education
was
reluctant
to
grant
credits
for
some
courses,
history
for
example,
because
of
“the
very
overtly
Christian
approach’’
and
perspective
in
which
the
course
was
taught
as
“the
work
of
God
in
history’’.
The
Core
Bible
Studies,
according
to
Mr
Hudspith,
were
what
the
board
and
the
faculty
“considered
to
be
the
very
hub
of
the
curriculum’’.
This
was
“the
central
understanding
of
what
learning
and
education
were
all
about
.
.
.
the
very
foundation
the
rest
of
the
learning
would
stem
from*’.
He
further
explained
that
“one
of
the
basic
notions
that
underlies
the
curriculum
is
that
.
.
.
we
are
servants
in
much
the
same
way
that
Christ
was.
He
taught
us
to
be
servants
.
.
.
service
in
the
sense
that
whatever
skills
or
knowledge
we
have,
we
use
it
to
be
disciples
of
Christ,
in
service
to
other
people.
So
.
.
.
it
was
focused
towards
using
it
for
an
expression
of
love*’.
Mathematics,
science
and
language
are
taught
from
the
same
perspective.
In
addition
to
the
foregoing,
the
CCL
school’s
curriculum
includes
a
service
project
whereby
students
perform
what
was
once
called
“corporal
works
of
mercy’’,
such
as
visiting
retarded
children,
elderly
people
and
other
shut-ins,
doing
grocery
shopping
for
them
and
being
generally
helpful.
The
service
project,
a
part
of
the
school’s
program,
takes
up
about
2
to
3
hours
a
week
according
to
Mr
Hudspith.
Mr
Ary
DeJong,
an
accountant,
first
became
a
member
of
the
ICSS
in
September,
1968,
and
later
became
its
treasurer.
His
view
of
the
ICSS
curriculum,
and
the
perspective
from
which
it
is
taught,
was
extremely
similar
to
Mr
Huds-
pith’s
testimony
about
the
curriculum
of
the
CCL
school.
Mr
DeJong
has
remained
involved
with
the
ICSS
and
is
still
the
treasurer,
an
appointed,
nonelected
officer
of
the
corporation.
The
plaintiffs
testimony
about
the
educational
philosophy
of
the
OCSA
and
the
nature
of
its
school
curriculum
revealed
their
virtually
identical
approach
with
those
of
the
other
two
charities.
The
plaintiff
resided
in
Ottawa
until
the
summer
of
1977
when
he
moved
to
Toronto.
He
was
the
Chairman
of
OCSA,
a
position
he
resigned
on
moving
to
Toronto.
He
is
the
executive
director
of
the
Ontario
Association
of
Alternative
and
Independent
Schools.
His
four
children
attended
the
subject
schools
in
Ottawa,
one
at
the
CCL,
and
three
at
the
OCSA.
After
the
plaintiffs
family
moved
to
Toronto,
three
of
his
children
were
enrolled
in
the
ICSS
school,
and
the
one
attended
a
school
which
is
not
a
Christian
school
like
the
CCL,
OCSA
and
ICSS
schools.
From
his
personal
knowledge
gleaned
from
his
experience,
the
plaintiff
gave
testimony
as
to
both
curriculum
and
finances
of
the
three
schools
which
was
consonant
with
the
testimony
of
Messrs
Hudspith
and
DeJong
in
regard
respectively
to
the
CCL
and
the
ICSS
schools.
The
transcript
of
the
proceedings
is
not
entirely
free
of
problems,
but
one
passage
of
the
plaintiffs
testimony
about
the
educational
process
and
curriculum
of
the
OCSA
school
stands
out
clearly
(p
126),
thus:
The
curriculum
of
the
Ottawa
Christian
School,
was
meant
to
nurture
a
child
in
a
way
of
understanding
his
environment
and
life,
in
an
integrally
Christian
life..
.
.
[History,
for
example,
would
not
be
seen
merely
as
a
phenomenon
of
events,
but,
a
phenomenon
of
events
with
a
purpose,
and
that
purpose
would
be
found
in
the
Christian
faith
and
it’s
[sic]
understanding
of
life,
that
in
Christ
all
things
cohere,
and
similarly,
other
subjects
would
be
seen
that
way.
He
continued
with
other
examples.
The
plaintiff
also
testified
about
the
OCSA’s
relationship
with
the
Ontario
Ministry
of
Education,
thus:
The
Ministry
would
come
in
to
see
the
school
met
the
requirements
of
safety.
And
once
in
a
while,
they
would
come
in
to
.
.
.
seemed
[they]
enjoyed
coming
in
to
.
.
.
to
observe
the
school
in
operation,
and
they
would
come
on
request.
Sometimes
a
teacher
would
get
an
Ontario
Letter
of
Standing,
in
which
case
the
teacher
would
be
inspected
in
the
classroom.
The
plaintiff
said
that
the
school
was
not
accredited
by
the
Ministry
of
Education
but
“they
did
of
course,
have
to
satisfy
themselves
that
education
was
going
on’’.
There
was,
indeed,
no
evidence
to
the
effect
that
the
enrolled
children
were
ever
considered
to
be
truants
by
the
Ontario
educational
authorities.
All
three
witnesses
testified
clearly,
as
was
amply
confirmed
on
cross-examination,
that
the
curricula
include,
and
the
schools
present
and
teach
secular
subjects,
to
be
sure.
But
it
is
also
clear
that
religious
teaching
was
and
is
not
kept
separate
and
apart
from
the
teaching
of
secular
subjects.
It
was
and
is
blended
with
them
such
that,
if
the
secular
and
religious
teachings
were
(to
make
an
analogy)
chemical
elements,
they
would
be
combined
in
solution
of
varying
proportions
from
hour
to
hour
throughout
the
school
year.
There
is
no
doubt
that
the
enrolled
children
were
and
are
being
provided
with
knowledge
and
being
taught
skills
which
will
serve
them
well
in
a
secular
society.
There
is
equally
no
doubt
that
at
all
material
times
they
were
simultaneously
being
instructed
and
edified
in
Christian
precepts,
and
that
the
teaching
of
the
secular
subjects
was
utilized
to
that
end.
The
evidence
about
the
philosophy
of
education,
and
whether
it
was
reified
in
the
curriculum
and
in
the
educational
formation
of
the
children
enrolled
in
these
schools
is
important
to
the
determination
of
whether
the
schools
qualify
as
charities
not
only
on
the
basis
of
the
advancement
of
education,
but
also
on
the
basis
of
the
advancement
of
religion.
Clearly
they
do
so
qualify
on
both
cases.
Each
corporation,
with
the
school
it
operates,
is
in
law
a
religious
charity
and
an
educational
charity.
Each
was
simultaneously
both
at
the
material
times,
also.
The
question
remains:
were
the
plaintiffs
donations
to
the
three
charities
wholly
deductible
as
gifts
to
registered
charities;
or
is
some
portion
of
those
payments
to
be
disallowed
for
not
being
a
gift,
but
rather
a
tuition
payment
in
consideration
of
his
children’s
education?
If
some
portion,
or
all,
of
those
payments
were
in
the
nature
of
a
tuition
payment,
as
found
in
the
Zandstra
decision,
(supra),
then
such
amount
cannot
be
allowed
as
a
deduction
from
the
plaintiffs
income
in
1976
and
1977
for
purposes
of
computing
his
income
tax.
Mr
Justice
Heald’s
decision
stands
unless
and
until
it
is
disapproved
by
a
competent
appellate
court,
or
it
is
obviated
by
legislation.
The
question
to
be
resolved
is
of
no
wider
reach
than
that
which
is
stated
above.
Thus
it
is
not
whether
the
plaintiff
received
any
benefit
at
all,
big
or
small,
real
or
imagined,
physical
or
metaphysical,
material
or
immaterial
from,
and
as
a
result
of,
his
monetary
contributions
to
the
three
charities.
So
to
pose
the
question
would
demonstrate
an
intent
to
treat
the
religious
charities
carried
on
by
the
three
corporations
differently
from
the
treatment
habitually
and
correctly
accorded
to
those
religious
charities
carried
on
by
parishes
and
other
religious
congregations.
Obviously
taxpayers
who
make
deductible
contributions
to
parish
churches
believe
they
derive
—
and
do
objectively
receive
—
spiritual,
educational
and
social
benefits
for
themselves
and
their
children
from
the
parishes
of
their
own
particular
denomination
to
which
they
make
gifts
of
money.
Reserving
for
the
moment
the
crucial
question
of
tuition,
there
appears
to
be
no
warrant
for
imposing
on
the
religious
charities
here
a
more
onerous
and
more
extensive
test
than
that
which
is
borne
by
other
religious
charities.
Indeed,
there
is
some
authority
for
discounting
the
notion
of
benefit
apart
from
consideration
for
tuition
in
such
a
case
as
this.
The
decision
of
Judge
Taylor
of
the
Tax
Court
of
Canada
in
Burns
v
MNR,
[1983]
CTC
2629;
83
DTC
557
comes
to
mind
in
this
regard.
In
that
case
it
appears
that
Dr
Burns
made
payments
to
the
Canadian
Ski
Association,
a
registered
charity.
During
the
relevant
years
the
taxpayer’s
daughter
was
a
member
of
a
training
squad
from
among
whom
Ski
Association
could
select
skiers
for
positions
on
the
National
Ski
Team
which
represents
Canada
in
world
competition.
Such
positions
are
highly
prized.
Dr
Burns
in
testimony
readily
and
candidly
agreed
that
he
would
not
have
made
the
contributions
to
the
Canadian
Ski
Association
without
the
expectation
that
his
daughter
would
participate
in
the
program.
The
learned
judge
found
that
the
Association
made
efforts
which
he
characterized
as
a
“hard-sell”
to
“encourage”
the
parents
“(and
that
may
be
a
very
mild
word
for
it)”
to
accord
financial
help,
but
that
the
lack
of
such
financial
help
had
never
actually
raised
an
obstacle
against
a
good
skier.
Judge
Taylor
went
on
(at
2633
[560])
to
hold:
.
.
.
the
Court
concludes
that
the
sole
reason
for
Dr
Burns’
contributions
was
not
just
the
prime
objective
of
producing
a
world-class
skier,
he
had
an
ancillary
concurrent
in
hoping
it
would
be
his
daughter.
At
the
same
time,
to
the
degree
that
Zandstra
(supra)
can
throw
any
light
on
this
matter,
it
cannot
be
said
that
the
sole
reason
for
the
payments
was
the
individualized
ski
training
of
his
own
daughter,
similar
to
that
reflected
in
Zandstra
“in
discharge
of
their
duties
as
parent
as
they
conceived
them
to
be’*
(emphasis
added);
and
he
noted
(at
2634
[561],
in
his
conclusion:
In
view
of
the
lack
of
specific
jurisprudence
on
the
point
from
the
higher
Courts,
for
this
Court
to
reach
the
conclusion
that,
at
the
very
point
in
time
and
individual
development
when
maximum
financial
support
was
required
from
the
parents,
a
major
incentive
(the
tax
deduction)
should
be
discontinued,
in
my
view,
would
be
in
direct
conflict
with
the
alleged
purpose
for
which
Parliament
designated
the
Canadian
Ski
Association
as
a
non-profit
organization.
The
dual
aspects
of
responsibility
for
the
formation
of
world-class
skiers,
and
certification
to
attract
financial
support
through
tax-deductible
donations
appears
to
me
to
have
been
fundamental
to
that
purpose.
Some
analogous
situations
exist
within
the
Income
Tax
Act
and
the
questions
raised
are
obvious.
Should
a
donation
to
a
religious
organization,
otherwise
tax
deductible,
be
disallowed
because
the
donor
indicated
an
interest,
or
even
directed
that
it
be
used
for
a
particular
purpose
within
that
organization’s
authorized
functions?
Judge
Taylor
allowed
the
taxpayer’s
appeal.
It
must
be
noted
here,
however,
as
the
defendant’s
counsel
mentioned,
Judge
Taylor’s
decision
is
itself
now
under
appeal
to
this
court.
It
is
not
necessary
to
cast
doubt
on
the
validly
charitable
objectives
of
the
CSA
in
order
to
appreciate
that
in
the
priorities
of
public
policy,
the
supremacy
of
ski
is
not
among
the
founding
principles
of
Canada.
However,
in
a
decision
of
this
court
rendered
by
Mr
Justice
Dubé,
another
taxpayer
was
held
to
be
entitled
to
the
charitable
deduction
even
though
a
direct,
quantifiable
and
mercenary
benefit
was
thereby
conferred,
and
clearly
intended
to
be
conferred,
on
the
taxpayer.
The
decision
is
Antoine
Guertin
Ltée
v
The
Queen
[1981]
2
FC
532;
[1981]
CTC
351;
81
DTC
5045
(in
the
French
language)
and
5268
(in
the
English
language).
The
facts
of
the
Guertin
case
reveal
that
the
late
founder
of
the
plaintiff
company
had
established
also
a
registered
religious
organization,
the
Fondation
St-Pie,
which
gave
all
its
income
to
foreign
missions.
The
Guertin
corporation
gave
the
Fondation
a
cheque
for
$12,400
as
a
charitable
donation
for
the
taxation
year
in
question.
During
this
period
the
corporation
gave
its
employees
bonuses
but
caused
its
employees
to
give
the
Fondation
a
total
of
$39,155
out
of
those
bonuses,
also
as
charitable
donations.
Indeed,
each
bonused
employee
was
asked
merely
to
endorse
directly
over
to
the
Fondation
a
specially
prepared
cheque
for
part
of
his
total
bonus.
The
employees
apparently
complied
quite
willingly.
Thus
in
December
1972
the
total
amount
of
the
gifts,
$51,555,
was
deposited
into
the
Fondation
St-Pie’s
account.
That
sum
was
immediately
lent
back
to
the
Guertin
corporation
upon
the
security
of
the
company’s
promissory
note
bearing
seven
per
cent
interest.
This
practice
had
gone
on
for
several
years.
The
seven
per
cent
interest
which
the
company
paid
to
the
Fondation
was
distributed
to
the
foreign
mission.
In
the
Guertin
Ltée
case
Dubé,
J
made
the
following
findings
among
others:
The
Fondation
regularly
files
financial
reports
and
other
forms
required
by
the
Department
of
National
Revenue.
Any
donor
may
become
an
active
member
of
the
Fondation
once
accepted
by
the
Directors.
The
Directors
are
not
employees
of
the
Company,
with
the
exception
of
Emile
Cordeau,
who
was
formerly
the
plaintiffs
manager,
and
now
of
Jean
St-Onge,
his
successor
as
manager
of
the
plaintiff
and
also
secretary
of
the
Fondation.
The
founder
Antoine
Guertin
did
not
remain
a
Director
of
the
Fondation
after
its
incorporation.
(pages
538
&
539,
FC)
Unfortunately
the
two
witnesses
who
could
best
have
shed
light
on
the
situation,
the
founder
and
his
wife,
are
both
dead.
It
is
nonetheless
evident
from
the
testimony
of
the
plaintiffs
three
witnesses
that
Antoine
Guertin’s
essential
aims
were
achieved:
the
bonus
system
guarantees
the
Company
a
loyal
and
efficient
staff
and
the
Fondation
now
has
a
constant
amount
of
capital,
the
annual
income
from
which
is
given
to
the
missions.
This
successful
formula
also
produces
two
other
beneficial
results
for
the
plaintiff.
First,
the
payment
of
bonuses
increases
the
Company’s
expenses
and
consequently
reduces
the
tax
payable;
secondly
the
Company
benefits
from
a
source
of
borrowing
at
a
highly
favourable
rate.
None
of
the
above
transactions
is
concealed
or
illegal.
The
Fondation
has
letters
patent
incorporating
it
as
a
corporation
whose
objects
are
to
administer
funds
and
contributions
to
assist
charitable
institutions.
In
the
event
of
the
Corporation’s
dissolution
its
net
assets
are
to
be
transferred
to
organizations
having
similar
aims.
The
Fondation
is
registered
as
a
charity
under
paragraph
110(1)(a)
of
the
Act,
which
authorizes
the
deduction
of
donations.
(pages
539
&
540,
FC)
If,
as
Mr
Justice
Dubé
has
held,
there
is
nothing
illegal
in
those
transactions,
which
did
directly
and
quantifiably
benefit
the
donor,
and
if
those
charitable
gifts
can
be
sustained
as
proper
deductions,
as
the
court
has
held,
then
applying
that
jurisprudence
to
the
case
at
bar
it
would
appear:
(a)
that
the
question
of
what
if
any
benefit
the
plaintiff
McBurney
derived
must
remain
limited
to
an
enquiry
of
whether
he
paid
tuition
and
received
as
contractual
consideration
the
benefit
of
having
his
children
receive
a
Christian
education;
and
(b)
that
any
benefit
which
the
plaintiff
McBurney
might
be
said
to
have
derived
is
pallidly
indirect,
and
truly
not
quantifiable
in
contrast
with
that
received
by
the
Guertin
company.
And
yet
the
court
characterized
the
Guertin
payments
as
nothing
less
than
valid
gifts.
The
defendant’s
counsel
advised
that
the
Guertin
case
is
under
appeal.
That
is
correct,
but
not
impressively
so.
The
Crown
filed
a
notice
of
appeal
(file
A-49-
81)
on
February
3,
1981.
The
file
discloses
precious
little
activity
since
then.
Was
the
plaintiff
paying
a
tuition
fee,
or
part
of
one,
when
he
paid
the
money
to
the
three
registered
charities
in
1976
and
1977,
as
the
Minister
asserts?
What
is
a
tuition
fee?
It
is
the
monetary
consideration
(money
or,
possibly
money’s
worth
of
goods
or
services)
payable
to
a
pedagogue
or
school
authority
for
enrolling
a
pupil
or
student
in
an
instructional,
training
or
educational
lecture
or
course
of
lectures.
(“Lecture”
signifies
a
more
or
less
controlled
learning
situation
including
seminars,
discussions,
demonstrations
or
student
experience.)
Failure
to
pay
or
make
good
the
tuition
in
such
contractual
circumstances
legitimately
and
morally
entitles
the
pedagogue
or
school
authority
to
bar
the
pupil
from
attending
the
lecture
or
course
or,
if
it
be
too
late
for
that,
entitles
the
pedagogue
or
school
authority
to
demand
and
sue
for
the
promised
money
(or
money’s
worth).
The
foregoing
may
not
be
utterly
comprehensive,
but
it
includes
most
elements
of
the
basic
notion
of
“tuition”,
“tuition
fee”.
The
plaintiff
and
the
other
two
witnesses
testified
on
this
issue,
and
they
were
competently
and
vigorously
cross-examined
on
it
with
reference
to
the
exhibited
documents.
In
view
of
the
length
of
their
testimony
and
the
problematic
quality
of
the
transcript,
it
will
be
convenient
to
paraphrase
the
evidence.
In
overall
effect,
it
can
be
summarized
in
a
phrase.
All
three
witnesses
testified
credibly
and
clearly
to
the
effect
that
the
three
schools
did
not
levy
a
tuition
fee
upon
the
plaintiff
or
upon
any
of
the
other
parents
whose
children
attended
these
schools.
It
is
true
that
the
community
—
one
is
tempted
to
say
“congregation”
—
of
persons
who
organized,
established
and
maintained
each
school
was,
as
a
collectivity,
required
to
pay,
or
to
beg
for,
the
money
necessary
for
the
sustenance
of
their
school.
That
fact
was
neither
denied
nor
euphemized
by
the
witnesses.
For
example,
Mr
DeJong
testified
about
his
experience
as
treasurer
of
the
ICSS
when
a
shortfall
in
anticipated
revenues
developed
and
how
the
board
coped
with
it.
There
were
efforts
to
instill
parents
with
the
notion
of
their
fair
share
in
maintaining
the
school,
there
were
appeals
within
the
community
and
outside
it,
and
finally
if
the
needed
funds
were
still
not
forthcoming
a
fund-raising
activity
would
be
staged
in
order
to
help
keep
the
school
solvent.
However,
Mr
DeJong
testified,
no
child
was
or
is
ever
refused
admission
and
no
child
was
or
is
ever
asked
to
leave
the
school
simply
because
the
parents
were
not
contributing
their
fair
share.
That
has
a
familiar
ring
about
it.
It
sounds
just
like
the
fund-raising
methods
commonly
employed
by
a
myriad
of
parish
churches,
synagogues
and
religious
congregations
all
across
Canada.
Indeed,
those
methods
are
so
commonly
employed
and
so
well
known
that,
even
if
there
were
no
testimony
here
touching
upon
them,
judicial
notice
can
be
taken
of
them.
Parishes
encourage
parishioners
to
use
weekly
contribution
envelopes,
to
make
“fair-share”
pledges,
to
respond
generously
to
appeals.
They
do
this
not
only
from
the
pulpit,
but
also
through
visiting
churchwardens,
deacons
or
parish
councillors
and
the
like
who
come
around
to
the
parishioners’
homes
from
time
to
time
as
the
need
arises.
Obviously,
parishioners
who
cannot
afford
to
pay,
or
even
unashamedly
will
not
either
pay
up
or
pay
more,
are
never
sued
or
expelled
from
the
parish
commun-
ity.
So
it
indeed
was
and
is,
without
exception,
with
the
three
registered
charities
in
the
case
at
bar.
It
is
a
financially
risky
venture
no
doubt,
but
according
to
the
witnesses,
the
people
involved
prefer
the
ideals
of
a
Christian
community
above
the
practices
of
a
commercially
sound
business.
In
cross-examination,
Mr
Hudspith
was
confronted
with
the
very
words
of
Exhibit
5G,
the
CCL’s
Information
Handbook
for
1975-76,
which
was
the
school’s
first
year
of
operation,
at
page
5,
Finances:
Since
the
government
still
denies
the
parents
the
right
to
allocate
educational
tax
monies
to
the
school
of
their
choice,
the
school
must
be
financed
by
other
means.
At
present
most
of
the
money
comes
from
tuition
and
gifts.
While
over
half
of
the
needed
money
has
come
to
us
by
donations,
there
is
a
tuition
fee
that
is
on
a
family
basis
and
scaled
to
the
income
of
the
family.
Now,
if
one
were
a
devotee
of
stressful
semantics,
one
might
conclude
that
the
CCL
and
ultimately
the
plaintiff
are
“caught
red-handed’’
by
that
quoted
passage
from
the
CCL
handbook.
Mr
Hudspith
credibly
responded
to
the
cross-examiner
that
what
was
meant
“was
a
guideline,
it
was
prepared
by
the
Board,
[so]
that
a
family
could
look
at
the
guideline
and
decide
what
would
be
their
fair
share
of
the
responsibility,
to
help
finance
the
school
.
.
.
and
to
educate
all
the
children
.
.
.
more
as
a
communal
affair,
because
a
number
of
people
contributed
to
that
as
well.’’
Mr
Hudspith
was
also
cross-examined
about
the
terminology
expressed
in
the
CCL’s
statements
of
receipts
and
expenditures.
Exhibit
5L
is
the
statement
for
1975-76.
There
it
is
again!
In
Exhibit
5L,
for
the
school’s
first
year,
under
“Receipts”
is
that
same
expression
“Tuition
Fees
—
$15,308.60”.
The
witness
responded:
“Yes,
that
was
the
amount
contributed
by
the
parents.”
In
Exhibit
5N,
that
same
item,
showing
that
sum
of
$15,308.60
for
the
now
previous
year,
1975-
76,
is
called
“Donations
from
parents
of
students”.
Mr
Hudspith
testified
about
this
as
follows:
“.
.
.
there
seems
to
be
a
confusion
in
terminology,
it
is
exactly
the
same
fund
and
it
was
considered
a
donation.”
Soon
after,
he
further
testified:
“It
was
a
very
strong
feeling
of
the
people
who
started
the
school
that
.
.
.
although,
we
recognized
that
we
need
finance,
we
didn’t
want
any
family
to
not
come
to
the
school
because
of
finances.”
What
happened
there?
Is
there
any
profound
significance
to
the
documental
terminology?
It
is
clear
that
having
characterized
parents’
donations
as
tuition
fees
in
the
first
year,
the
board
considered
that
it
had
made
a
semantic
slip
and
simply
changed
the
terminology
to
conform
with
its
ideals,
its
practices
and
the
reality
of
the
matter.
Mr
DeJong,
as
noted,
was
the
ICSS
treasurer.
He
was
referred
in
cross-examination
to
Exhibit
4C
the
ICSS
constitution
and
by-laws.
He
was
questioned
about
two
articles
of
the
constitution:
Article
IV
—
Membership
The
membership
of
this
Society
shall
consist
of
those
persons
16
years
of
age
and
over,
who:
a.
have
indicated
their
agreement
with
the
Basis
and
Purpose
of
the
Society
as
set
forth
in
Articles
II
and
III
of
this
Constitution,
and
b.
contribute
the
required
membership
dues
or
pay
tuition
for
one
or
more
children,
and
Article
VII
—
Finances
1.
The
school
shall
be
maintained
by
membership
dues,
tuition,
gifts,
endowments,
legacies
and
grants.
2.
The
Board
of
Trustees
may
make
other
provisions
for
obtaining
income
as
it
may
deem
necessary.
3.
The
membership
dues
and
tuition
shall
be
fixed
at
the
spring
meeting
upon
a
proposal
from
the
Board
of
Trustees.
4.
The
fiscal
year
of
the
Society
shall
begin
on
September
1st
and
end
on
August
31st.
It
was
first
of
all
explained
by
Mr
DeJong
that
not
all
“members”
are
parents
of
enrolled
children
and,
correspondingly,
not
all
such
parents
are
“members”.
One
is
entitled
to
be
a
member
of
the
ICSS
without
having
a
child
enrolled
in
the
school.
A
parent
can,
moreover,
have
a
child
enrolled
even
though
the
parent
be
unwilling
to
subscribe
to
Articles
II
or
III
of
the
constitution.
In
such
circumstances
the
parent
is
not
a
member.
This
discussion
was
necessitated
in
order
to
clarify
the
“proposed
new
by-law”
on
page
6
of
Exhibit
4C:
Article
1
—
Membership
2.
Membership
in
the
Society
is
terminated
by
resignation
in
writing
to
the
Board
of
Trustees
or
by
decision
of
the
Board
in
case
of
financial
delinquency.
Failure
to
meet
the
obligations
as
set
forth
in
Article
IV-a
of
the
Constitution
automatically
terminates
membership.
Mr
DeJong
conceded
that
a
parent
who
is
also
a
member
could
have
his
or
her
membership
terminated
“for
financial
delinquency”,
but
he
reiterated
that
loss
of
membership
by
the
parent
cannot
be
equated
with
barring
the
child
from
the
school
simply
because,
as
he
explained,
parents
of
children
enrolled
in
the
school
are
not
absolutely
required
to
be
“members”.
Once
again
the
ICSS
employs
that
terminology
about
“tuition
fees”.
Again,
since
no
question
of
mens
rea
arises
in
these
civil
proceedings,
one
ought
not
to
be
too
struck
with
the
semantics.
The
enquiry
at
bar
is
to
determine
whether
any
part
of
the
plaintiffs
contributions
to
ICSS
was
a
tuition
fee.
Mr
DeJong,
the
treasurer,
testified
in
this
regard
on
cross-examination:
“No,
there
is
no
tuition
scale.
We
didn’t
have
pledge
cards,
but,
as
I
explained
earlier,
..
.
we
would
appeal
to
the
parents
to
make
contributions
to
the
school,
indeed.”
Mr
DeJong
testified
that
if
a
parent
were
unable
to
pay
the
amount
which
he
or
she
had
earlier
indicated,
to
pay
the
fair
share
of
funding
the
school,
he
or
she
would
be
interviewed
by
a
board
member
to
enquire
about
the
matter,
but
if
the
parent
were
unable
to
pay,
“there
would
be
no
repercussions”.
In
all
of
Mr
DeJong’s
experience
as
treasurer,
he
has
known
only
two
families
who
did
not
pay
at
all,
but
still
had
children
enrolled
in
the
school.
But,
as
he
said,“.
.
.
there
was
a
number
of
parents
who
would
pay
very
little”
although
“most
parents
did
pay
something”.
No
one,
according
to
this
witness,
ever
lost
membership
in
the
ICSS
because
of
financial
hardship.
So
with
members,
and
so
with
parents.
Mr
DeJong’s
testimony
credibly
establishes
that
no
tuition
fees
were
paid
by
the
plaintiff
in
1976
and
1977,
or
indeed
by
anyone,
ever,
to
the
date
of
the
trial,
the
constitution
and
by-laws
notwithstanding.
The
plaintiff,
Lyle
McBurney
continued
to
be
a
member
of
OCSA
even
after
he
and
his
family
moved
to
Toronto.
There
is
nothing
to
be
made
of
the
fact
that
his
contribution
to
OCSA
diminished
dramatically
after
his
children
were
no
longer
attending
the
school.
The
significant
aspect,
rather,
is
that
he
continued
to
make
any
gift
at
all
to
OCSA.
No
inference
of
his
paying
a
tuition
fee
can
be
drawn
in
these
circumstances.
The
plaintiff
was
further
cross-examined
about
Exhibit
3D,
a
letter
from
the
OCSA
treasurer,
dated
May
25,
1976,
addressed
to
the
parents.
It
sets
out
a
“fee
formula”,
approved
by
the
members,
which
can
be
calculated
on
a
sliding
scale
from
a
table,
all
of
which,
as
the
witness
and
both
counsel
noted,
resembles
nothing
more
than
an
income
tax
return
form.
Asked
if
he
used
that
formula
as
a
guideline
for
his
contribution
to
the
OCSA,
the
plaintiff
said:
“That’s
one
of
the
things
I
took
into
consideration,
yes.”
The
plaintiff,
as
it
happens,
has
a
breadth
of
experience.
He
was,
while
living
in
Ottawa,
chairman
of
the
OCSA
board:
at
an
earlier
time
he
had
been
a
member
of
the
board
of
deacons,
and
treasurer,
of
a
local
church
in
Ottawa.
The
plaintiff
was
asked,
to
delineate,
in
light
of
that
experience,
the
differences
and
similarities
of
raising
revenue
for
the
OCSA
on
the
one
hand
and
the
church
on
the
other.
He
answered:
Well,
I
see
very
little
difference,
other
than,
the
school,
would
perhaps,
in
it’s
efforts
[to]
raise
funds,
be
more
aggressive
in
terms
of
trying
to
impact
on
general
community,
outside
of
it’s
own
society,
and
I
see
a
distinction,
because
education,
tends
to
have
more,
the
public
would
understand,
why
you’re
there,
for
example,
at
Westbrook
Baptist
Church,
would
have
been
..
.
would
have
been
improper
for
them,
I
think,
to
make
public
appeals
for
the
money,
they
tended
to
go
through
the
congregation,
but,
I
see
very
little
difference.
And
again,
asked
about
encouraging
parishioners
to
contribute,
he
answered:
Yes,
they
were
encouraged
to
contribute,
as
best
they
could,
not
unlike
the
school.
It
would
be
pointed
out
to
people
what
.
.
.
what
the
Church
hoped
to
receive,
and
might
reasonably
expect
to
receive.
That
was
sometimes
done,
in
terms
of,
averaging,
as
we
did
in
the
school
society,
as
well.
And,
I
think,
also,
in
some
cases,
Churches,
the
one
I
joined,
belong
to
now,
for
example,
actively
solicits
commitment
to
an
amount,
they
will
ask
you
to
pledge,
certain
amount,
some
people
do,
some
people
don’t.
On
re-examination
the
plaintiff
was
asked,
with
reference
to
the
sliding
scale
in
Exhibit
3D,
about
what
other
matters
he
took
into
account
when
determining
how
much
he
would
give
to
OCSA.
He
testified:
Well,
basically,
I
had
to
take
into
account
how
much
money
we
had
for
that
sort
of
thing,
but
I
also
took
into
account
other
charitable
causes
to
which
we
were
committed
.
.
.
they’re
all
listed
here,
in
these
documents.
Those
are
not
the
answers
of
a
parent
from
whom
was
demanded,
or
who
had
determined
to
pay,
tuition
fees.
OCSA
levied
no
tuition
fees
as
consideration
for
furnishing
a
Christian
education,
and
no
part
of
the
plaintiffs
gifts
is
to
be
so
characterized.
There
were
no
tuition
fees
charged
by
any
of
the
three
charitable
corporations.
The
plaintiffs
payments
were
made
as
much
without
consideration
as
are
contributions
to
a
parish
church.
It
is
clear
that
the
plaintiff
and
other
like-minded
contributors
banded
together
in
a
community
(or
congregation)
in
order
to
support
each
other’s
ideals
of
Christian
Education,
to
develop
or
maintain
each
school
and
to
meet,
as
a
community,
the
common
expenses
entailed
in
their
project.
In
that
regard
they
were
and
are
indistinguishable
from
the
congregation
of
a
parish,
about
the
deductibility
of
whose
gifts
there
is
no
doubt.
Upon
the
evidence
it
is
clear
in
any
event
that
the
charitable
status
of
each
of
the
three
corporations
may
be
based
as
much
upon
the
advancement
of
religion
as
upon
the
advancement
of
education.
In
regard
to
both
modalities
of
charitable
status
no
material
consideration
and
no
tuition
fees
were
charged
or
given.
It
is
in
this
regard
that
the
case
at
bar
is
distinguishable
from
the
Zandstra
case.
In
that
case
Mr
Justice
Heald
found
that
tuition
fees
of
a
fixed
amount
were
levied
by
the
recipient
charity.
What
the
plaintiff
received
here
is
not
quantifiable
and
is
indistinguishable
in
nature
and
quality
from
what
a
parishionercontributor
receives
from
and
through
a
parish
church,
and
especially
if
that
parishioner-contributor’s
children
attend
the
church.
The
public
policy
favouring
and
protecting
the
advancement
of
religion,
particularly
in
light
of
our
special
legislative
and
constitutional
declarations
in
Can-
ada,
cannot
be
set
at
naught
by
the
Minister’s
Information
Circular
75-23
and
a
few
earlier
decisions
of
the
Tax
Review
Board.
The
body
which
authoritatively
sets,
declares
or
varies
public
policy
in
Canada
is
still
Parliament,
even
though
some
important
matters
of
public
policy
are
now
expressly
entrenched
in
our
Constitution.
Parliament
has
spoken
on
this
matter,
thus
far,
by
enacting
in
subsection
110(1)
of
the
Income
Tax
Act
that
the
aggregate
of
gifts
made
by
a
taxpayer
in
each
year
to
registered
charities,
up
to
20
per
cent
of
the
taxpayer’s
income,
is
deductible.
Any
refinement
of
that
policy
and
those
provisions
ought
to
be
specifically
debated
in,
and
effected
by,
Parliament
—
not
by
the
Minister
and
not
by
the
court.
The
charities
so
inextricably
blended
in
the
works
of
the
three
corporations
here
are
of
such
hardy
longevity
and
are
so
embedded
in
our
law
and
constitution
that
one
should
not
lightly
tamper
with
the
characterization
of
the
legitimate
gifts
which
the
corporations
have
received
from
the
plaintiff.
The
plaintiff’s
action
should
for
the
foregoing
reasons,
succeed
and
the
reassessments
issued
by
the
Minister
in
regard
to
the
plaintiff’s
gifts
in
1976
and
1977
to
the
CCL,
OCSA
and
ICSS
should
be
vacated,
and
the
plaintiff
should
be
allowed
his
full
claim
for
deductions,
including
the
Walkathon
and
the
contribution
for
paint;
the
whole
with
costs.
Email this Content