Everywoman's Health Centre Society (1988) v. The Queen, 92 DTC 6001, [1991] 2 CTC 320 (FCA)

Décary, J.A.:—This is an appeal under subsection 172(4) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") from the deemed refusal by the Minister of National Revenue (the Minister) to register the appellant Society (the Society) as a charitable organization.

The Society was incorporated under the laws of the Province of British Columbia in July 1988 for the following purposes:

(1) to provide necessary medical services for women for the benefit of the community as a whole, and

(2) to carry on educational activities incidental to the above.

The Society is to be carried on on an exclusively charitable basis with no intention to make a profit. Its Directors are not to be paid. Its immediate goal is to set up a free-standing abortion clinic. Its long range goal is to set up and operate a reproduction centre. It is to be operated within the law and its doctors are to be paid through the Medical Services Plan of the Province. Any surplus or charitable donations are to be used to reduce charges to patients.

The nature of the services provided by the Society is best described in a Memorandum prepared by an officer of the Department of National Revenue after a field visit, on July 31, 1989, to the appellants clinic. The most relevant portions of that Memorandum are the following:

1. Current Services: Phone counselling

Pregnancy Testing

Birth Control counselling and dispensing

Abortion procedures

Screening for STDs (sexually transmitted disease) Follow-up counselling and examination Physical Examinations and Pap Smears

Urinalysis; Blood testing for hemoglobin

The patient's first contact with the clinic is by phone; they are required to respond to a number of questions regarding their stage of pregnancy and regarding their decision. If the telephone counsellor determines that the patient is more than twelve weeks pregnant, they will be referred to either the Vancouver General Hospital or the Shaughnessy Hospital in Vancouver or to a hospital in their area that performs abortions if they do not live in Vancouver and their local hospital performs abortions. If it is determined that the patient is expressing any ambivalence regarding her decision to have an abortion or is unsure of what she wants to do, a counselling session will be scheduled independent of a booking for the procedure itself.

Upon arrival at the clinic at the time of the scheduled appointment, the patient is asked to present proof of Rh testing which is usually conducted at the Shaughnessy Hospital the morning of the patient's scheduled appointment. The patient is then given a pregnancy test and will then meet with a counsellor. The counselling sessions usually take about an hour and a half. If the counsellor determines that the patient is ambivalent about the decision, she will recommend that the patient return to the clinic at a later date. All options regarding the continuance of the pregnancy are explored; referrals will be made to social service agencies, government departments, adoption agencies etc. in the event that the patient decides not to terminate the pregnancy. Of the approximately 630 patients seen by the clinic to date, about 70 patients have decided to continue with the pregnancy.

The Clinic views these counselling sessions as absolutely crucial to the patients. The sessions are designed to determine whether the patient has been coerced into making the decision to have an abortion; to determine whether the patient has considered all other options available to her; and, whether the patient has made a firm commitment to the decision to terminate the pregnancy.

If the patient, after counselling, decides that she wishes to have the abortion, she is taken to an examination room and given a full physical by the physician . . .

Following the examination, the patient is taken to the operating room and is given a local anaesthetic. The patient is accompanied by a nurse or a counsellor who sits beside the patient and talks to her during the procedure. The Clinic does not use general anaesthetics as they believe that part of the healing process, both emotionally and psychologically, takes place during the procedure.

The patient is then taken to a recovery room and the Clinic requires that the patient remain there for at least twenty minutes, although most stay longer. The patient then meets with the counsellor again to discuss a birth control program; prescriptions can be given or devices fitted.

All patients are provided with a referral letter upon their departure from the Clinic which outlines the treatment they have received. It is intended that the patient will provide her own physician with this letter.

2. Resources: Of the time spent at the Clinic, the actual procedure takes about 15 to 30 minutes, followed by about a 30 minute recovery period. The patient's visit to the Clinic usually takes between 3 to 4 hours.

No data is available regarding what proportion of the Clinic's resources are devoted strictly to the abortion procedure and what portion is devoted to the other services offered by the Clinic.

3. There are 70 patients scheduled to come to the Clinic in the month of August. On average, the Clinic is open to perform procedures 10 to 14 days per month; 7 to 8 abortions are performed on these days. At present, the Clinic does not have a full-time staff physician. The Clinic’s Medical Director makes herself available at the Clinic about 10 to 14 days a month. The Clinic is hoping to add two on-call physicians who will be available at the Clinic two half days per week.

4. Referrals: There is no requirement that a patient be referred by a physician in order to obtain an abortion at the Clinic. Some patients are referred by their physicians, by social service agencies (such as Planned Parenthood), or they can be self-referred.

Parameters: The Clinic only performs first trimester abortions (i.e. up to 12 weeks). The telephone interview is designed to determine the stage of pregnancy. If the Clinic has space available, an appointment will be booked. If there are no medical contraindications, and both the counsellor and the doctor are satisfied that the patient has made an informed decision, the procedure will be performed.

5. The Clinic does not monitor the grounds for which women are seeking abortions. This is a confidential matter between the patient and the counsellor. . .

7. No one can walk in off the street and obtain an abortion. They must book an appointment with the Clinic and will be given one only if one is available. They do not use the term abortion on demand.

9. The Clinic is available to all women regardless of race, ethnic background, religion, or income level. They do not charge women a fee for the service if they cannot afford to pay. About 15% of the patients are unable to pay all or a portion of the fee charged.

The Clinic does careful medical screening to make sure it is able to [sic] the procedure medically. They want to make sure that the patient is making an informed decision. Abortions are not provided to any women under the age of 16; for women between the ages of 16 and 19, parental consent is required or alternatively, the consent of two other doctors.

Abortions will not be performed on any woman who is ambivalent about the decision.

10. Recognition by Provincial/Federal Depts: The Clinic has been given its own billing number by the MSP. They are currently involved in negotiations with the B.C. College of Physicians and Surgeons to be granted certification as a free standing medical clinic. They were granted an award by the Public Health Nurses’ Association for their contribution to community health services.

11. They do not receive any subsidies from any level of government.

12. The Clinic only performs first trimester abortions and does not make any exceptions in the case of rape, incest etc.

16. Counselling: 3 categories —Decision making—Informed consent— individualized birth control counselling—educational information regarding options of adoption, birth control, sexually transmitted diseases, AIDS prevention.

17. At the VGH, no counselling is provided in the hospital before or after the abortion. The procedure is done under general anaesthetic and is therefore comatose during the procedure [sic].

VGH has now capped the number of abortions being performed at the hospital to 100 per week. Richmond Hospital is no longer performing abortions.

Patients must be referred by a gynaecologist to the hospital—the patient's doctor has to go through a gynaecologist because the latter has to book the operating room to perform the procedure.

re demand; the Clinic has received 30 times the number of calls it had anticipated. It cannot serve the needs of all those who request it. At this time, five hospitals in rural B.C. do not provide any abortion services. In Northern B.C., there are no hospitals, which provide this service. They get a lot of patients from the Yukon and from Alberta.

18. The Clinic is much more accessible to women because they accept referrals from a number of sources, including self referral.

19. Women choose to come to the Clinic rather than go to a hospital because they will be treated with respect and dignity; they will not be faced with judgemental physicians; they will not be part of an assembly line; they will receive caring and supportive treatment; they can bring a companion with them (male or female) to the clinic; the procedure is as medically unobtrusive as possible; there is a shorter recovery period both physically and emotionally because of the extensive pre- and post-abortion counselling provided; the procedure is not available in their local community; they were referred by a doctor, social worker, friend etc.

21. Fees: $150 if patient has insurance

$250 if patient has no insurance

Fees at Hospital : patient has to pay $89 anaesthetist fee

Insurance pays $215 "tray service” to dr.

$480-510 if patient has no insurance

MSP (insurance) pays the physician’s fee, pregnancy test and urinalysis; all other expenses at the Clinic must be funded by donations, fees charged etc.

25. Medical services given at clinic:

Counselling; routine testing and treatment of STDs; fitting and prescription of birth control devices; physical examinations; Pap tests.

28. The Clinic has its own emergency protocol ; if they are unable to handle the matter it will be referred to VGH. They have a good working relationship with both VGH and Shaughnessy Hospital.

The basic issue facing the Minister, and now this Court, is that formulated as follows in an internal document prepared on November 23, 1988 by an officer of the Department:

. . . Thus, the controversial point which we must essentially answer is whether or not the provision of a free standing abortion clinic is a charitable activity. . . .

The relevant statutory provisions are paragraphs 110(8)(c) and 149.1(1)(b) of the Act:

110. (8) . . .

(c) “registered charity"—"registered charity” at any time means:

(i) a charitable organization, private foundation or public foundation, within the meanings assigned by subsection 149.1(1), that is resident in Canada and was either created or established in Canada, or

(ii) a branch, section, parish, congregation or other division of an organization or foundation described in subparagraph (1), that is resident in Canada and was created or established in Canada and that received donations on its own behalf, that has applied to the Minister in prescribed form for registration and that is at that time registered as a charitable organization, private foundation or public foundation.

149.1(1)(b) "charitable organization"—"charitable organization" means an organization, whether or not incorporated,

(i) all the resources of which are devoted to charitable activities carried on by the organization itself, . . .

Registered charities are given special status under the Act in that they receive the benefit of two exceptional privileges: first, they are exempted from tax and, secondly, donors of gifts made to registered charities are entitled to a deduction in computing their own taxable income (if a corporation) or in competing their tax owing (if an individual).

A useful definition of “charitable organization” under subsection 149.1(1) of the Act is to be found in the decision of this Court in Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471 at 478-79, Stone, J.A.:

The starting point for a discussion of what may or may not constitute a good charitable purpose is the decision of the House of Lords in the case of Commissioners of Income Tax v. Pemsel, [1891] A.C. 531 and, in particular, the. legal meaning of the word “charity” given by Lord Macnaghten, at page 583 of the report:

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.

That definition has been applied time after time in this country and has been approved by the Supreme Court of Canada (see Guaranty Trust Company of Canada v. Minister of National Revenue, [1967] S.C.R. 133, at page 141). A purpose, to be a good “charitable” one, must possess a charitable nature within “the spirit and intendment" of the preamble to the Statute of Elizabeth entitled "An Acte to redresse the Misemployment of Landes Goodes and Stockes of Money heretofore given to Charitable Uses". That statute was enacted in England in 1601 during the reign of Elizabeth I as 43 Eliz. 1, c. 4. Nowadays, it is generally known to this branch of the law simply as the “Statute of Elizabeth". It is unnecessary to recite the whole of that preamble and perhaps also undesirable to attempt its reproduction in the original form and style. I prefer instead to do as Slade J. did in McGovern v. Attorney-General, [1982] Ch. 321, at page 332 where he put the statute's list of charitable objects in modern English as follows:

. . . the relief of aged, impotent, and poor people . . . maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities .. . repair of bridges, ports, havens, causeways, churches, seabanks and highways . . . education and preferment of orphans . . . relief, stock or maintenance for houses of correction . . . marriages of poor maids . . . supportation, aid and help of young tradesmen, handicraftsmen and persons decayed . . . relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers and other taxes.

It is not contested, in the case at bar, that the ground relied on by the appellant is the fourth one, i.e., “trusts for other purposes beneficial to the community". Here again it will be useful to refer to these words of Stone, J.A. in the Native Communications Society case, supra, at 479-81:

A review of decided cases suggests that at least the following propositions may be stated as necessary preliminaries to a determination whether a particular purpose can be regarded as a charitable one falling under the fourth head found in Lord Macnaghten's classification:

(a) the purpose must be beneficial to the community in a way which the law regards as charitable by coming within the “spirit and intendment" of the preamble to the Statute of Elizabeth if not within its letter. (National AntiVivisection Society v. Inland Revenue Commissioners, [1948] A.C. 31 (H.L.), at pages 63-64; In re Strakosch, deed. Ternperley v. Attorney-General, [1949] Ch. 529 (C.A.), at pages 537-538), and

(b) whether a purpose would or may operate for the public benefit is to be answered by the court on the basis of the record before it and in exercise of its equitable jurisdiction in matters of charity (National Anti-Vivisection Society v. Inland Revenue Commissioners (supra), at pages 44-45, 63).

Can it be said that the purposes of the appellant fall within "the spirit and intendment" of the preamble to the Statute of Elizabeth and, therefore, within the fourth head of Lord Macnaghten’s definition of the word "charity"? In answering this question we must bear in mind what Lord Greene, M.R. had to say in /n re Strakosch (supra), at page 537:

In Williams’ Trustees v. Inland Revenue Commissioners ([1947] A.C. 447), the House of Lords has laid down very clearly that in order to come within Lord Macnaghten's fourth class, the gift must be not only for the benefit of the community but beneficial in a way which the law regards as charitable. In order to satisfy the latter it must be within the “spirit and intendment" of the preamble to the Statute of Elizabeth. That preamble set out what were then regarded as purposes which should be treated as charitable in law. It is obvious that as time passed and conditions changed common opinion as to what was properly covered by the word charitable also changed. This has been recognized by the courts as the most cursory examination of the cases shows.

[Emphasis added.]

More recently, in Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corpn., [1968] A.C. 138 (H.L.), Lord Wilberforce reminds us that “the law of charity is a moving subject". I refer more fully to his opinion on the point as expressed at page 154 of the report:

On this subject, the law of England, though no doubt not very satisfactory and in need of rationalisation, is tolerably clear. The purposes in question, to be charitable, must be shown to be for the benefit of the public, or the community, in a sense or manner within the intendment of the preamble to the statute 43 Eliz. 1, c. 4. The latter requirement does not mean quite what it says; for it is now accepted that what must be regarded is not the wording of the preamble itself, but the effect of decisions given by the courts as to its scope, decisions which have endeavoured to keep the law as to charities moving accordingly as new social needs arise or old ones become obsolete or satisfied. Lord Macnaghten's grouping of the heads of recognised charity in Pemsel’s case ([1891] A.C. 531, 583) is one that has proved to be of value and there are many problems which it solves. But three things may be said about it, which its author would surely not have denied: first that, since it is a classification of convenience, there may well be purposes which do not fit neatly into one or other of the headings; secondly, that the words used must not be given the force of a statute to be construed; and thirdly, that the law of charity is a moving subject which may well have evolved even since 1891.

[Emphasis added.]

The Income Tax Act, at paragraph 149.1(1)(b), refers to "charitable activities". The Statute of Elizabeth, which is at the source of all those cases that have developed the concept of charity trusts, referred to “charitable purposes”. However, in the case at bar, I do not see any reason not to apply to the "activities" of an organization, the principles established with respect to the "purposes" of an organization unless, of course, the context prevents us from so doing. [1]

Since this is a case of deemed refusal by the Minister, we do not, as we had

in Native Communications Society, supra, Positive Action Against Pornography v. M.N.R., [1988] 1 C.T.C. 232; 88 D.T.C. 6186 (F.C.A.), Scarborough Community Legal Services, supra, and Toronto Volgograd Committee, supra, have the benefit of reasons that the appellant can attack and the Court can examine. This is not, of course, an ideal situation, but it is a situation expressly permitted by the Act and we have to be satisfied with what we find in the Minister's factum to discover on what grounds the deemed refusal was made. These grounds, as we shall see, are rather narrow.

It is beyond question that private, fee-charging hospitals prima facie qualify as charities at common law on the basis that “the provision of medical care for the sick” is accepted as conferring a public benefit (/n re Resch's Will Trusts, [1969] 1 A.C. 514 (P.C.), Lord Wilberforce):

A gift for the purposes of a hospital is prima facie a good charitable gift. This is now Clearly established both in Australia and in England, not merely because of the use of the word “impotent” in the preamble to 43 Eliz. c. 4, though the process of referring to the preamble is one often used for reassurance, but because the provision of medical care for the sick is, in modern times, accepted as a public benefit suitable to attract the privileges given to charitable institutions. This has been recognised in the High Court in Australia in Taylor v. Taylor (1990), 10 C.L.R. 218, 227 per Griffith C.J. and Kytherian Association of Queensland v. Sklavos (1958), 101 C.L.R. 56: in England in In re Smith, deed., [1962] 1 W.L.R. 763; [1962] 2 All E.R. 563, C.A.

In spite of this general proposition, there may be certain hospitals, or categories of hospitals, which are not charitable institutions (see /n re Smith, deed.) Disqualifying indicia may be either that the hospital is carried on commercially, i.e. with a view to making profits for private individuals, or that the benefits it provides are not for the public, or a sufficiently large class of the public to satisfy the necessary tests of public character. Each class of objection is taken in the present case. As regards the first, it is accepted that the private hospital is not run for the profit, in any ordinary sense, of individuals. Moreover, if the purposes of the hospital are otherwise charitable, they do not lose this character merely because charges are made to the recipients of benefits . . .

At 540-41

Their Lordships turn to the second objection. This, in substance, is that the private hospital is not carried on for purposes “beneficial to the community” because it provides only for persons of means who are capable of paying the substantial fees required as a condition of admission.

In dealing with this objection, it is necessary first to dispose of a misapprehension. It is not a condition of validity of a trust for the relief of the sick that it should be limited to the poor sick. Whether one regards the charitable character of trusts for the relief of the sick as flowing from the word "impotent" (“aged, impotent and poor people") in the preamble to 43 Eliz. c. 4 or more broadly as derived from the conception of benefit to the community, there is no warrant for adding to the condition of sickness that of poverty . . .

At 542

To provide, in response to public need, medical treatment otherwise inaccessible but in its nature expensive, without any profit motive, might well be charitable: on the other hand to limit admission to a nursing home to the rich would not be so. The test is essentially one of. public benefit, and indirect as well as direct benefit enters into the account. In the present case, the element of public benefit is strongly present. It is not disputed that a need exists to provide accommodation and medical treatment in conditions of greater privacy and relaxation than would be possible in a general hospital and as a supplement to the facilities of a general hospital. This is what the private hospital does and it does so at, approximately, cost price. The service is needed by all, not only by the well-to-do. So far as its nature permits it is open to all: the charges are not low, but the evidence shows that it cannot be said that the poor are excluded: such exclusion as there is, is of some of the poor—namely, those who have (a) not contributed sufficiently to a medical benefit scheme or (b) need to stay longer in the hospital than their benefit will cover or (c) cannot get a reduction of or exemption from the charges. The general benefit to the community of such facilities results from the relief to the beds and medical staff of the general hospital, the availability of a particular type of nursing and treatment which supplements that provided by the general hospital and the benefit to the standard of medical care in the general hospital which arises from the juxtaposition of the two institutions.

At 544

I did not understand counsel for the respondent to argue that performance of abortions by physicians does not come within the ambit of the expression “medical care for the sick" used by Lord Wilberforce. This expression should indeed not be taken too literally: the words "for the sick" are in my view redundant in that medical care presupposes a health condition and common parlance relates medical care to sickness whether or not the health condition can be properly characterized as a sickness. In a Canadian context, I would suggest that the words “health care” or “health care services" be substituted to the words “medical care for the sick”. This would accord with the language used in the Canada Health Act, R.S.C. 1985, c. C-6. While pregnancy in itself may not be "characterized properly as a sickness", (see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at 1237, Dickson, C.J.) it would appear that abortion, when performed by a physician, constitutes some form of health care. Counsel for the respondent did indeed recognize that abortions are performed in some public hospitals which qualify as charitable organizations, that the province of British Columbia funds abortion as an insured medical benefit under the Medical Services Plan and that the funding of abortion is not prohibited by the Canada Health Act.

It flows, therefore, from the Minister’s factum that the deemed refusal was made, not because abortion is not a health care, nor because the Society's activities were considered to be harmful to the community, nor because these activities were considered to be of a political nature, nor because the activities were considered to be illegal, nor because private clinics cannot enjoy the same “charitable” status as public or private hospitals, nor because the women benefitting from the services of the clinic were not “the public” or a sufficient section of the public, but strictly because “absent clear statements of public policy and absent public consensus on the abortion issue, it cannot be said that the (appellant)'s activities are beneficial to the community in a way the law regards as charitable” (respondent's memorandum of points of argument, para. 21). Simply put, the Minister's contention is that there can be no benefit for the public, and therefore no charity, where, all other conditions being fulfilled, the object of the charity is controversial.

It is well established that an organization will not be charitable in law if its activities are illegal or contrary to public policy (see National Anti-Vivisection Society v. Inland Revenue Commissioners, [1948] A.C. 31 at 65 and 72, Lord Simonds). As already noted, it is conceded here that the Society's activities are not illegal: they are contrary neither to criminal law (R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Sullivan, [1991] S.C.R. 489) nor to civil or 'Anglo-Canadian law" (Tremblay v. Daigle, [1989] 2 S.C.R. 530 at 565). But, argues the respondent, in the absence of clear statements of public policy on the issue of abortion, the Society's activities cannot be said to accord with public policy:the failure of Parliament to replace the provisions of the Criminal Code that were struck down in the Morgentaler decision, leads the respondent to submit that "it cannot be concluded that first trimester abortion by choice of the patient, while clearly legal, reflects public policy on abortion" (respondent's memorandum of points of argument, para. 32).

I have found no support for such an approach in the case law. It is one thing to act in a way which offends public policy; it is a totally different thing to act in a way which is not reflected in any, adverse or favourable, public policy. An activity simply cannot be held to be contrary to public policy where, admittedly, no such policy exists. It would impose an unbearable burden on those who apply for charity registration to require that there be a clear public policy approving of their activities. As I read the cases, for an activity to be considered as "contrary to public policy”, there must be a definite and somehow officially declared and implemented policy. In the case at bar, there is no such declared and implemented policy. On the contrary, the fact that physicians performing abortions in these clinics are paid with provincial funds spent in accordance with federal legislation, would tend to confirm that the performance of abortions at these clinics does not offend any public policy. Public funds, in my view, are presumed to be spent in accordance with public policy and absent any challenge to the validity of that public spending I am not ready to assume that public funds are not spent for the public good.

With respect to the argument that there can be no charity at law absent public consensus, counsel for the respondent was unable to direct the Court to any supporting authority. Counsel was indeed at a loss to define what she meant by “public consensus”, what would be the degree of consensus required and how the courts would measure that degree. To define "charity" through public consensus would be a most imprudent thing to do. Charity and public opinion do not always go hand in hand; some forms of charity will often precede public opinion, while others will often offend it. Courts are not well equipped to assess public consensus, which is a fragile and volatile concept. The determination of the charitable character of an activity should not become a battle between pollsters. Courts are asked to decide whether there is an advantage for the public, not whether the public agrees that there is such an advantage.

Counsel for the respondent relies particularly on the decision of this Court in Positive Action Against Pornography v. M.N.R., supra, where Stone, J.A. held, at 6189, 6190, 6191:

. . . the law of charity under this broad head especially is somewhat elastic, the courts being willing to recognize any relevant change in societal conditions or other special circumstance. Nevertheless, to be charitable, a purpose or activity must be so in a way that the law regards as charitable. There are, no doubt, many purposes and activities that are beneficial to the community in a loose or popular sense though not in the legal sense i.e., that intended by Lord Macnaghten in The Commissioners for Special Purposes of The Income Tax v. Pemsel, [1891] A.C. 531 (H.L.), or as argued for by Sir Samuel Romilly in Morice v. The Bishop of Durham (1805),11 Ves. 522, at page 532, namely, “objects of general public utility”.

. . . Counsel argues that ridding society of this kind of material or at least controlling and limiting its publication, circulation and use, can be considered as falling within the “spirit and intendment" of the preamble to the Statute of Elizabeth or, at all events, as analogous to objects already found by the courts to be charitable under Lord Macnaghten's fourth head of charity.

. . . The task of the Court under this head is a relatively narrow one. We are not called upon to decide what is beneficial to the community in a loose sense, but only what is beneficial in a way the law regards as charitable. I am satisfied from an examination of the material and of the decided cases that the appellant's primary purposes or activities cannot be classed as beneficial to the community in this latter sense but rather as political in the sense understood by this branch of the law.

With respect, I do not see how these comments can be of any help to the respondent. The Court was there dealing with what it found to be "trusts for political purposes” and, more particularly, with "a trust for alteration of the law" (at 6191) : [2]

.. . Furthermore, for the very good reasons explained by Lord Parker in Bowman and others v. Secular Society, Ltd., [1917] A.C. 406, a trust for alteration of the law has never been accepted as charitable. At page 442 he said:

The abolition of religious tests, the disestablishment of the Church, the secularization of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath, are purely political objects. Equity has always refused to recognize such objects as charitable. . . . but a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift. . .

In the case at bar, according to the evidence before the Court, the "trust" is for dispensation of health care to women who want or need an abortion; it is not a “trust” for alteration of the law with respect to abortion, nor is it a "trust" for the political purpose of promoting the “pro-choice” view. The controversy that surrounds abortion should not deter us from seeking the true purpose of the clinic, which is to benefit women receiving a legally recognized health care service in a legally constituted clinic. The record before us does not contain even the slightest hint that the Society engages or intends to engage in political activities and, as I have already noted, the respondent does not allege political purpose.

Counsel for the appellant relied heavily on the decision of Chilwell, J. in Auckland Medical Aid Trust v. Commissioner of Inland Revenue, [1979] 1 N.Z.L.R. 382 (S.C.) where the long-range goal of the trust at issue was similar to the one of the appellant in the case at bar. That decision contains helpful statements, but it does not have the importance counsel claims it has. Following a Royal Commission report, comprehensive legislation on human reproduction, including abortion, was enacted in New Zealand and public policy was therein defined, with the result that the issue of public policy was not really addressed.

The duty of this Court in a case such as this one was well explained by Stone, J.A. in the Native Communications Society at 482:

. . . If, as Lord Wilberforce says (and I agree), “the law of charity is a moving subject", then our duty must be-to see whether in the circumstances disclosed by the record before us the appellant's purposes at this point in time fall within Lord Macnaghten's fourth head of charities in Pemsel's case.

The record contains a lengthy report prepared by an officer of the respondent with respect to the Society's activities. I have reproduced most of that report in the earlier part of these reasons and I now wish to come back to it. The report gives a very detailed description of what goes on at the clinic and does so in most flattering terms. The clinic obviously takes great pain in ensuring the quality of the health care services it provides. It has a good working relationship with the Vancouver General Hospital and the Shaughnessy Hospital in Vancouver. It provides an environment and some services, such as counselling, which are not provided in a hospital. It is available to all women regardless of race, ethnic background, religion or income level. It does not charge women a fee if they cannot afford to pay. About 15 per cent of the patients are unable to pay all or a portion of the fee charged. It does not accept patients under the age of 16 and requires parental consent for women between the ages of 16 and 19, or alternatively, the consent of two doctors. Abortion is not performed on any woman who is ambivalent about the decision. Patients who are more than twelve weeks pregnant are referred to a hospital. The clinic has been granted an award by the Public Health Nurses Association for its contribution to community health services. The clinic has received 30 times the number of calls it had anticipated and cannot serve the needs of all those who request it. The Vancouver General Hospital has capped the number of abortions being performed at the hospital to 100 per week. Richmond Hospital is no longer performing abortions. Five hospitals in rural British Columbia do not provide any abortion services. In Northern British Columbia, there are no hospitals which provide this service. The clinic also gets a lot of patients from the Yukon and from Alberta.

With respect to medical fees, the record discloses that there are two fee schedules relating to the performance of abortion in British Columbia, depending on whether the abortion was performed before or after 14 weeks. No distinction is made between the funds paid to physicians to perform an abortion on the basis that one was performed in a hospital and one was performed in a free-standing clinic. The fee paid by the Medical Services Plan covers the physician's fee as well as the pregnancy test and the urinalysis. It does not cover the cost of counselling. The Plan's policy with respect to the payment of fees for an abortion is no different from that applied to any other medical procedure (A.B. at 82 and 258).

Furthermore, in the case at bar, the respondent has filed no evidence that would suggest that the Society's activities are not for the benefit of the community. The respondent has even stated that his position is not “that the appellant's activity of providing abortion, or the controversy surrounding the abortion issue, is harmful to the community" (respondent's memorandum of points of argument, para. 22). That being so, and this being a case where the activity—provision of health care—is prima fade charitable, the Court should follow the advice given by Lord Simonds in National Anti-Vivisection Society at 65:

. . . I would rather say that, when a purpose appears broadly to fall within one of the familiar categories of charity, the court will assume it to be for the benefit of the community and, therefore, charitable, unless the contrary is shown, and further that the court will not be astute in such a case to defeat on doubtful evidence the avowed benevolent intention of the donor. . . .

All in all, I have been persuaded that in the circumstances disclosed by the record before us, the Society’s purposes and activities at this point in time [3] are beneficial to the community within the spirit and intendment, if not the letter, of the preamble to the Statute of Elizabeth and that the Society is a charitable organization within the evolving meaning of charity at common law and qualifies as a "charitable organization” for the purposes of paragraph 149.1(1)(b) of the Act.

In view of the conclusion I have just reached, it becomes unnecessary to deal with the Charter arguments alternatively raised by the appellant.

The appellant is asking for costs. Rule 1312 of the Federal Court rules provides that there shall be no costs "unless the Court, in its discretion, for special reasons, so orders". The special reason alleged by the appellant is that "the record shows that the respondent delayed and avoided its legislative duty to make a decision". The respondent can hardly be said to have "delayed and avoided its legislative duty” when subsection 172(4) of the Act expressly authorizes the Minister not to “deal with the charitable tax application within 180 days". The respondent, in the present case, did precisely what the statute empowers him to do. This is not a case for costs.

Disposition

For these reasons, I would allow the appeal, set aside the deemed refusal of the Minister of National Revenue herein and refer the matter back to the Minister for reconsideration on the basis that the appellant is a “charitable organization" within the meaning of paragraph 149.1(1)(b) of the Income Tax Act.

Appeal allowed.