Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., 99 DTC 5034, [1999] 1 SCR 10, [1999] 2 CTC 1

Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., [1999] 1 S.C.R. 10

Vancouver Society of Immigrant and

Visible Minority Women                                                                   Appellant

v.

Minister of National Revenue                                                          Respondent

and

Minority Advocacy and Rights Council,

Canadian Ethnocultural Council,

Centre for Research Action on Race Relations

and Canadian Centre for Philanthropy                                             Interveners

Indexed as:  Vancouver Society of Immigrant and Visible Minority Women v. M.N.R.

File No.:  25359.

1998:  February 23; 1999:  January 28.

Present:  L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

on appeal from the federal court of appeal

Taxation -- Charities -- Registered charities -- Society applying for registration as a charitable organization -- Society’s primary purpose being to provide educational forums, classes, workshops and seminars to immigrant and visible minority women to enable them to find employment -- Whether purpose for “advancement of education” or “beneficial to community” -- Whether society’s purposes exclusively charitable -- Whether common law definition of charity should be revised -- Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 149.1(1), 248(1).

Constitutional law -- Charter of Rights  -- Equality rights -- Charitable registration scheme -- Society assisting immigrant and visible minority women denied charitable tax status under Income Tax Act  -- Whether charitable registration scheme violates equality rights of society’s intended beneficiaries -- Canadian Charter of Rights and Freedoms, s. 15  -- Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 149.1(1), 248(1).

The appellant Society applied to the Minister of National Revenue for registration as a charitable organization under ss. 149.1(1)  and 248(1)  of the Income Tax Act .  The Society’s purposes, as stated in its amended constitution, were  “(a) to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment; (b) to carry on political activities provided such activities are incidental and ancillary to the above purposes and provided such activities do not include direct or indirect support of, or opposition to, any political party or candidate for public office; (c) to raise funds in order to carry out the above purposes by means of solicitations of funds from governments, corporations and individuals; and (e) to provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.”  The Society described its activities as providing a “public benefit” through services and workshops designed to “advance education”. The Society’s activities included a “career and vocational counselling service” to assist women in obtaining employment, and assistance in such practical skills as résumé writing and interview skills as well as activities such as networking, soliciting job opportunities, maintaining a job skills directory, liaising for accreditation of foreign credentials and offering referral services.  Revenue Canada rejected the Society’s application mainly because it was not convinced that the organization was constituted exclusively for charitable purposes, as required for registration under the Act.  The Federal Court of Appeal dismissed the Society’s appeal.

Held (L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting):  The appeal should be dismissed.

Per Cory, Iacobucci, Major and Bastarache JJ.: For an organization to qualify for registration under s. 248(1)  of the Income Tax Act :  (1) the purposes of the organization must be charitable, and must define the scope of the activities engaged in by the organization; and (2) all of the organization’s resources must be devoted to these activities unless the organization falls within the specific exemptions of s. 149.1(6.1) or (6.2).  Since the Act does not define “charitable”, Canadian courts have consistently applied the Pemsel test to determine that question.  The Pemsel classification is generally understood to refer to the preamble of the Statute of Elizabeth, which gave examples of charitable purposes.  While the courts have always had the jurisdiction to decide what is charitable and were never bound by the preamble, the law of charities has proceeded by way of analogy to the purposes enumerated in the preamble. The Pemsel classification is subject to the consideration that the purpose must also be “for the benefit of the community or of an appreciably important class of the community” rather than for private advantage.

While the definition of “charitable organization” in s. 149.1(1) focuses on “charitable activities” rather than purposes, it is really the purpose in furtherance of which an activity is carried out, not the character of the activity itself, that determines whether or not the activity is of a charitable nature.  Accordingly, in making that determination, the inquiry must focus not only on the activities of an organization but also on its purposes. Subject to the exemptions provided by s. 149.1(6.1) and (6.2), s. 149.1(1) requires that all of the purposes and activities of the organization be charitable.  However, even the pursuit of a purpose which would be non-charitable in itself may not disqualify an organization from being considered charitable if it is pursued only as a means of fulfilment of another, charitable purpose and not as an end in itself.

Under the traditional approach, the “advancement of education” head of the Pemsel classification is generally limited in Canada to the “formal training of the mind” or the “improvement of a useful branch of human knowledge”.  While purpose (a) -- the primary purpose of the Society -- would not qualify as charitable under the traditional approach as it seems to lack the element of systematic instruction, there is no logical or principled reason why a more expansive definition of education for the purposes of the law of charity should not be adopted.  To limit the notion of “training of the mind” to structured, systematic instruction or traditional academic subjects reflects an outmoded and underinclusive understanding of education which is of little use in modern Canadian society.  So long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education. Education should not be broadened beyond recognition but the law ought to accommodate any legitimate form of education. Here, purpose (a) is charitable under the proposed more expansive definition of education.  The purpose is to train the minds of immigrant women in certain important life skills, with a specific end in mind:  equipping them to find and secure employment in Canada.  Moreover, certain activities carried out in furtherance of this purpose, such as the provision of the educational programs contemplated by the purposes clause, are undoubtedly charitable within this expanded definition, whether or not they have the quality of systematic instruction traditionally associated with education in the charitable sense. The purpose also satisfies the requirement that it benefit “the community or . . . an appreciably important class of the community”.

To bring a purpose within the fourth head of Pemsel, more is required than simple “public benefit”, in the ordinary sense of the term.  It is incumbent upon the Society to explain just how its purposes are beneficial in a way the law regards as charitable.  To assess whether an organization’s purposes are charitable under that head, a court should:  (1) consider the trend of those decisions which have established certain objects as charitable under this heading, and ask whether, by reasonable extension or analogy, the instant case may be considered to be in line with these; (2) examine certain accepted anomalies to see whether they fairly cover the objects under consideration; and (3) ask whether, consistently with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity; if so, the argument for charity must fail.  To this approach must be added the general requirement that the purpose also be “for the benefit of the community or of an appreciably important class of the community”.  This approach indicates that the Society’s purpose (a) is not charitable under the fourth head.   No “trend” can be discerned from previous decisions recognizing that assisting immigrant women to integrate into society through helping them to obtain employment is a charitable purpose under the fourth head of charity.  Purpose (a) should therefore be characterized solely in terms of education.

A valid charitable organization must be constituted exclusively for charitable purposes.  While political purposes are not generally considered charitable, the  Society’s purposes clause makes clear that the sole purpose of carrying out political activities and raising funds under clause 2(b) and (c) is to facilitate a valid educational purpose.  Accordingly,  purposes (b) and (c) can be taken as means to the fulfilment of purpose (a), not ends in themselves, and thus do not disqualify the Society from obtaining registration as a charity under the Act.  It is difficult,  however, to discern whether purpose (e) is a means of fulfilment or an end in itself because of its extremely broad wording, which mandates the Society to do “all such things that are incidental or conducive to the attainment of” its other purposes.  One purpose may be conducive to another while still remaining an end in itself, not merely a means to the fulfilment of the second purpose.  This, combined with the exceedingly vague content of purpose (e), leads to the conclusion that it cannot be classified as charitable simply on the basis of its relationship to the educational purpose disclosed in purpose (a).  Furthermore, the question of whether an organization was constituted exclusively for charitable purposes cannot be determined solely by reference to the objects and purposes for which it was originally established.  It is also necessary to consider the nature of the activities presently carried on by the organization as a potential indicator of whether it has since adopted other purposes.  Here, the nature of the activities carried out by the Society further supports the conclusion as to the non-charitable character of purpose (e).  The provision of a job skills directory and the establishment of support groups for professionals do not constitute educational activities, nor do they appear to be “incidental” to the attainment of purpose (a) of the Society.  They must fall under purpose (e) as activities “conducive” to the other purposes.  However, while these may well be useful services, they are directly in furtherance of helping immigrant women to find employment, which in itself is not a charitable purpose.  The purposes of the Society therefore can and do accommodate non-charitable activities.  They are simply too vague and indeterminate to permit the Society to qualify for charitable status under the fourth head of Pemsel.  In the result, the Society has not satisfied either of the two criteria for registration as a charity under s. 248(1) of the Act.  While some of the Society’s purposes contemplate charitable activities, they do not  restrict the Society to charitable activities alone.

Even though some substantial change in the law of charity would be desirable and welcome at this time, it would not be appropriate for the Court, in the context of this case, to adopt an entirely new definition of charity.  If this is to be done, especially for the purposes of the Income Tax Act , the specifics of the desired approach will be for Parliament to decide since a new and more expansive definition of charity, without warning, could have a substantial and serious effect on the taxation system.

The operation of the charitable registration scheme in the Income Tax Act  does not violate the equality rights of the Society’s intended beneficiaries under s. 15  of the Canadian Charter of Rights and Freedoms .  The interplay of Pemsel and the Income Tax Act  results in a scheme whereby any organization, by restricting itself to charitable purposes and activities, can qualify for registration as a charitable organization.  This requirement applies uniformly to every organization that seeks to be registered as charitable.

Per L’Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): The starting point for the courts in determining whether a particular purpose is charitable is the Pemsel case, which provides a classification of charitable purposes. The Pemsel classification carves out three presumptively charitable categories (relief of poverty, advancement of education, and advancement of religion) and creates a residual fourth category of charitable purposes (“other purposes beneficial to the community”), which itself comprises a number of recognized subcategories.  Any purpose which is charitable must fit into one or more of the four Pemsel categories.  Further, a valid charitable organization must be constituted exclusively for charitable purposes.  This requirement is reflected in the definition of “charitable organization” in s. 149.1(1) of the Act,  which also requires  that a charitable organization must devote all of its resources to charitable activities.  The pursuit of purposes which, though not charitable in themselves, are merely ancillary or incidental to the fulfilment of the primary, charitable, purposes of an organization will not cause the organization to run afoul of the exclusivity requirement.  Furthermore,  for the organization to qualify as charitable,  its purposes must be “for the benefit of the community or of an appreciably important class of the community”.  The public benefit requirement has two distinct components:  there must be an objectively measurable and socially useful benefit conferred; and it must be a benefit available to a sufficiently large section of the population to be considered a public benefit.  Although the public benefit requirement applies to all charitable purposes, it is of particular concern under the fourth head of the Pemsel classification.  This is so because under the first three heads, public benefit is essentially a rebuttable presumption, whereas under the fourth head it must be demonstrated.

In determining whether a particular purpose may be placed within one or more of the Pemsel categories, the courts adhere to the analogical approach to legal reasoning familiar to the common law.  Since the Pemsel classification does not itself provide any enumeration of purposes from which to analogize to putatively charitable purposes under consideration, the courts should consider whether the purpose is analogous to one of the purposes enumerated in the preamble of the Statute of Elizabeth  or build analogy upon analogy. While the courts should not shy away from the recognition of new purposes which respond to pressing social needs, the pursuit of analogy should not lead the courts astray. To modernize the existing categories of charitable purposes, a court should adhere to the principles of altruism and public benefit  in order to identify new charitable purposes and to ensure that existing ones continue to serve the public good.  When considering a purpose under the fourth head of the Pemsel classification, the mere fact that a purpose is of public benefit does not, without more, render that purpose charitable.  To qualify as charitable, a purpose must be beneficial to the public “in a way which the law regards as charitable”. The best approach for making such a determination is one which marries adherence to principle with respect for the existing categories as established by the Pemsel scheme.

In the law of charity, the courts’ primary concern is to determine whether the purposes being pursued are charitable.  It is these purposes which are essential, not the activities engaged in, although the activities must bear a coherent relationship to the purposes sought to be achieved. Accordingly, in determining whether an organization should be registered as a charitable organization, the proper approach is to begin by:  (a) identifying the primary purposes of the organization; and then (b) determining whether those purposes are charitable.  If one concludes that the purposes are not charitable, then the organization is not charitable, and the inquiry ends there.  However, if the organization’s primary purposes are charitable, then it must be considered (c) whether the other purposes pursued by the organization are ancillary or incidental to its primary purposes; and (d) whether the activities engaged in by the organization are sufficiently related to its purposes to be considered to be furthering them.  If positive responses are made to these two latter inquiries, then the organization should be registered as a charitable organization.  The Society’s purpose is set out in clause 2(a) of its constitution and the other purposes are merely subsidiary to, and in direct furtherance of, this purpose.

The “advancement of education” head of the Pemsel classification has traditionally been given a relatively restrictive interpretation in Canada and this  traditional definition should be abandoned in favour of a more modern conception.   So long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education.  In order to be educational under this head, an organization must pursue “actual teaching” or a “learning component”. The concept of education, however, is not amenable to indefinite expansion.  The more that purposes stray from traditional conceptions of education, the more difficult it will be to engage in the task of distinguishing charitable from non-charitable purposes.   Here,  the “advancement of education” head encompasses the Society’s purpose  set out in clause 2(a) of its constitution.   Accordingly, the Society is prima facie charitable because its purpose is charitable under a head of the Pemsel classification.

The Society’s purpose can also be placed within the fourth head of the Pemsel classification.  Assisting the settlement of immigrants and refugees, and their integration into national life, is a charitable purpose already recognized under the fourth head and the Society’s purpose is subsumed within this subcategory.  Immigrants are often in special need of assistance in their efforts to integrate into their new home.  The Society provides assistance, guidance, and learning opportunities.  It helps immigrants in developing and acquiring vocational skills, so that they may obtain employment.  An organization, such as the Society, which assists immigrants through this difficult transition is directed towards a charitable purpose.  Clearly, a direct benefit redounds to the individuals receiving assistance from the Society, and the nation as a whole gains from the integration of those individuals into its fabric.  That is the public benefit at issue here.

A proper determination of whether the Society’s activities are sufficiently connected to its purpose must take into account the unique needs and problems faced by immigrant and visible minority women in obtaining employment.  Activities must be evaluated in the light of the purposes they are supposed to further.  When this is done on the facts of this appeal, there is no doubt that the Society’s activities are charitable.  While some of the activities may not be sufficiently connected to the “advancement of education”, no position is taken on that question in light of the finding that assisting immigrants so that they may obtain employment or self‑employment, and thus become fully integrated into national life, is a valid charitable purpose under the fourth head of the Pemsel classification.  These activities, which include maintaining a job skills directory, networking, liaising for accreditation of foreign credentials, soliciting job opportunities, and offering referral services, cannot be viewed as other than directly connected to achieving that purpose.  Since each of these activities is directly related to the Society’s charitable purpose, each of them constitutes a “charitable activity” under the Income Tax Act .

Under the fourth head of the Pemsel classification, to qualify as charitable the class of persons eligible to benefit must be the community as a whole, or an appreciably important class of the community.  The Society has not impermissibly limited the scope of its class of beneficiaries.  Despite its primary focus on immigrant women, there is no indication that in practice the Society’s beneficiaries are exclusively women or members of minority groups.  On the contrary, the evidence suggests that the Society’s services are open to all in need of them.

The political purposes doctrine has no application on the facts of this appeal.  It is obvious from a plain reading of clause 2(b) that the Society’s purpose is not political.  Clause 2(b) does not authorize the Society to pursue political purposes, but merely enables it to engage in political activities in furtherance of its charitable purpose, provided that such political activities are incidental and ancillary to that charitable purpose.

The Society’s purpose is not too vague or uncertain to be charitable.  The purposes of an organization will almost invariably be phrased in broad, general terms and that cannot, of itself, render those words ambiguous.  One should not aspire to an unrealistic degree of precision in such matters.  By inserting the words “or conducive” into clause 2(e), the Society did not place itself outside the scope of legal charity.  Though notionally a purpose clause, what is contemplated by clause 2(e) is the ability to conduct activities, not purposes.  The key observation is that an organization whose purpose is charitable does not surrender that status merely because it engages in some activities which are not in themselves charitable, so long as those activities are subordinate to, and in furtherance of, the exclusively charitable purpose of the organization.  That is the case here.  The plain language of clause 2(e) indicates the obvious intent of the drafter to enable the Society to carry out certain activities in furtherance of its purpose.

It is unnecessary in this case to engage in a wholesale revision of the common law definition of charity because the Society’s purpose can be placed within the existing Pemsel categories.  Before asking this Court to modify the common law, litigants should demonstrate that they have exhausted the possibilities of the existing law.  In the law of charity, those possibilities are considerable.

Cases Cited

By Iacobucci J.

Applied:  Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133; D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970] T.R. 31; disapproved:  Re Fitzgibbon (1916), 27 O.W.R. 207; distinguished:  Re Stone (1970), 91 W.N. (N.S.W.) 704; In re Wallace, [1908] V.L.R. 636; In re Cohen, [1954] N.Z.L.R. 1097; Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757; Briarpatch Inc. v. The Queen, 96 D.T.C. 6294; Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096; referred to:  The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76; Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471; Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531; Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340; Morice v. Bishop of Durham (1805), 10 Ves. Jun. 522, 32 E.R. 947, aff’g (1804), 9 Ves. Jun. 399, 32 E.R. 656; McGovern v. Attorney‑General, [1982] Ch. 321; Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138; Verge v. Somerville, [1924] A.C. 496; Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202; British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462; Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424; Inland Revenue Commissioners v. McMullen, [1981] A.C. 1; Re Hopkins’ Will Trusts, [1964] 3 All E.R. 46; Re Koeppler Will Trusts, [1986] Ch. 423; Re Societa Unita and Town of Gravenhurst (1977), 16 O.R. (2d) 785, aff’d (1978), 6 M.P.L.R. 172; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; Oppenheim v. Tobacco Securities Trust Co., [1951] A.C. 297; Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232; Institution of Mechanical Engineers v. Cane, [1961] A.C. 696; Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52.

By Gonthier J. (dissenting)

D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970] T.R. 31; Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471; Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531; Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52; Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340; Vancouver Regional FreeNet Assn. v. M.N.R., [1996] 3 F.C. 880; McGovern v. Attorney-General, [1982] Ch. 321; Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133, rev’g [1965] 2 Ex. C.R. 69; The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76; Turner v. Ogden (1787), 1 Cox 316, 29 E.R. 1183; Incorporated Council of Law Reporting for England and Wales v. Attorney-General, [1972] Ch. 73; Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138; In re Strakosch, [1949] Ch. 529; British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462; Jones v. T. Eaton Co., [1973] S.C.R. 635; Brewer v. McCauley, [1954] S.C.R. 645; Verge v. Somerville, [1924] A.C. 496; Inland Revenue Commissioners v. Baddeley, [1955] A.C. 572; National Anti-Vivisection Society v. Inland Revenue Commissioners, [1948] A.C. 31; Blais v. Touchet, [1963] S.C.R. 358; In re Foveaux, [1895] 2 Ch. 501; Williams’ Trustees v. Inland Revenue Commissioners, [1947] A.C. 447; Peggs v. Lamb, [1994] 2 All E.R. 15; Royal National Agricultural and Industrial Association v. Chester (1974), 3 A.L.R. 486; Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762; Scarborough Community Legal Services v. The Queen, [1985] 2 F.C. 555; Toronto Volgograd Committee v. M.N.R., [1988] 3 F.C. 251; Alberta Institute on Mental Retardation v. Canada, [1987] 3 F.C. 286; Re Public Trustee and Toronto Humane Society (1987), 60 O.R. (2d) 236; Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202; Stop the Violence . . . Face the Music Society v. The Queen, 97 D.T.C. 5026; Attorney General v. Ross, [1985] 3 All E.R. 334; Inland Revenue Commissioners v. Oldham Training and Enterprise Council, [1996] B.T.C. 539; Briarpatch Inc. v. The Queen, 96 D.T.C. 6294; Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424; Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096; Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232; Inland Revenue Commissioners v. McMullen, [1981] A.C. 1; Re Stone (1970), 91 W.N. (N.S.W.) 704; In re Wallace, [1908] V.L.R. 636; In re Cohen, [1954] N.Z.L.R. 1097; Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757; Re Fitzgibbon (1916), 27 O.W.R. 207; Re Mariette, [1915] 2 Ch. 284; Canada Trust Co. v. Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321; N.D.G. Neighbourhood Association v. Revenue Canada, Taxation Department, 88 D.T.C. 6279; Re Koeppler Will Trusts, [1986] Ch. 423; Institution of Mechanical Engineers v. Cane, [1961] A.C. 696; Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

Statutes and Regulations Cited

Canada Corporations Act , R.S.C. 1970, c. C-32 , Part II.

Canadian Charter of Rights and Freedoms , s. 15 .

Charitable Uses Act, 1601 (Eng.), 43 Eliz. 1, c. 4 (Statute of Elizabeth or Statute of Charitable Uses), preamble.

Charities Act, 1960 (U.K.), 8 & 9 Eliz. 2, c. 58, s. 38.

Immigration Act, R.S.C., 1985, c. I-2, ss. 6(8) [rep. & sub. 1992, c. 49, s. 3], 9(1.4) [idem, s. 4].

Immigration Regulations, 1978, SOR/78-172, as amended, ss. 6.11 to 6.19, 8 to 11.1.

Income Tax Act , R.S.C., 1985, c. 1 (5th Supp .), ss. 110.1(1)(a) [repl. 1994, c. 7, Sch. II, s. 79(1)], 118.1(1), (3), 149(1)(f), (l), 149.1(1) “charitable foundation”, “charitable organization”, “charitable purposes”, (2) [am. 1994, c. 21, s. 74(4)], (4.1), (6.1), (6.2), (14), 168, 172(3) [am. 1994, c. 7, Sch. II, s. 141(1)], 180(3), 188(1) [repl. 1994, c. 21, s. 84(1)], 230(2) [idem, s. 105(1)], 248(1) “registered charity”.

Income Tax Regulations, C.R.C., c. 945, s. 900(8) [rep. & sub. SOR/87-470, s. 1(10); am. SOR/89-346, s. 1(6); am. SOR/92-137, s. 1(10); am. SOR/93-280, s. 1(7); am. SOR/94-495, s. 1(6)].

Income War Tax Act, 1917, S.C. 1917, c. 28, s. 5(d).

Mortmain and Charitable Uses Act, 1888 (U.K.), 51 & 52 Vict., c. 42, s. 13(1), (2).

Society Act, R.S.B.C. 1979, c. 390 [now R.S.B.C. 1996, c. 433].

Authors Cited

Bagambiire, Davies B. N.  Canadian Immigration and Refugee Law.  Aurora, Ont.:  Canada Law Book, 1996.

 Bromley, E. Blake.  “Contemporary Philanthropy -- Is the Legal Concept of “Charity” Any Longer Adequate?”  In Donovan W. M. Waters, ed., Equity, Fiduciaries and Trusts 1993. Scarborough, Ont.: Carswell, 1993, 59.

Cairns, Elizabeth.  Charities:  Law and Practice, 3rd ed.  London:  Sweet & Maxwell, 1997.

Canada.  Revenue Canada.  Interpretation Bulletin IT‑486R, “Intergenerational Transfers of Shares of a Small Business Corporation”, December 31, 1987.

Concise Oxford Dictionary, 9th ed. Oxford:  Clarendon Press, 1995, “conducive”, “incidental”.

Cullity, Maurice C.  “The Myth of Charitable Activities” (1990), 10 Est. & Tr. J. 7.

Drache, Arthur B. C.  Canadian Taxation of Charities and Donations.  Scarborough, Ont.:  Carswell, 1994 (loose-leaf updated October 1997, supplement 1997-1).

Fridman, G. H. L. “Charities and Public Benefit” (1953), 31 Can. Bar Rev. 537.

Jones, Gareth.  History of the Law of Charity 1532-1827.  London:  Cambridge University Press, 1969.

Ontario.  Law Reform Commission. Report on the Law of Charities.  Toronto:  The Commission, 1997.

Smith, David W.  “Tax appeal procedure for charities needs improving”, in The National, vol. 12, No. 4, April 1985, p. 21.

Tudor on Charities, 8th ed. by Jean Warburton.  London: Sweet & Maxwell, 1995.

United States.  Department of the Treasury.  Internal Revenue Service.  Cumulative Bulletin 1976-1, Rev. Rul. 76-205, p. 154.

Waters, Donovan W. M.  Law of Trusts in Canada, 2nd ed.  Toronto:  Carswell, 1984.

APPEAL from a judgment of the Federal Court of Appeal (1996), 195 N.R. 235, 96 D.T.C. 6232, [1996] 2 C.T.C. 88, [1996] F.C.J. No. 307 (QL), affirming the Minister of National Revenue’s decision rejecting appellant’s application for charitable tax status.  Appeal dismissed, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.

David W. Mossop, for the appellant.

Roger Leclaire and Johanne D’Auray, for the respondent.

Emilio S. Binavince and Uzma Ihsanullah, for the interveners the Minority Advocacy and Rights Council, the Canadian Ethnocultural Council and the Centre for Research Action on Race Relations.

W. Laird Hunter and Arthur B. C. Drache, Q.C., for the intervener the Canadian Centre for Philanthropy.

The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

1                                   Gonthier J. (dissenting) -- This appeal requires the Court to consider the legal definition of charity, and to apply that definition to determine whether the respondent Minister of National Revenue (“Minister”) erred in law in refusing to register the appellant Vancouver Society of Immigrant and Visible Minority Women (“Society”) as a charitable organization under the Income Tax Act , R.S.C., 1985, c. 1 (5th Supp .) (formerly R.S.C. 1952, c. 148).

2                                   I have had the benefit of reading the reasons of my colleague Iacobucci J.  Although there is considerable agreement between Iacobucci J.’s reasoning and my own as to the appropriate scope to be given to the legal categories of charity, I find myself unable to agree with certain aspects of my colleague’s reasons.  More importantly, I disagree with my colleague as to the manner in which the legal definition of charity should be applied to the particular circumstances of this appeal, and hence, with the result he reaches.  Accordingly, I have felt it necessary to set out my own reasons.

I. Facts

3                                   The appellant Society, which is based in Vancouver, was incorporated on December 19, 1985, under the Society Act, R.S.B.C. 1979, c. 390 (now R.S.B.C. 1996, c. 433), as a corporation without share capital.  In 1992, the Society made its first application to Revenue Canada seeking registration as a registered charity under ss. 149.1(1)  and 248(1)  of the Income Tax Act  (“ITA ”).  Revenue Canada, in a letter to the Society dated April 10, 1992, refused to register the Society as a registered charity, and gave reasons for its decision.  So began a lengthy series of correspondence between the Society, its counsel, and Revenue Canada.  Although Revenue Canada’s initial refusal decision is not the subject of the present appeal, Revenue Canada’s ultimate refusal to register the Society must be interpreted in the light of this long chain of correspondence.  Because the correspondence and the constituting documents of the Society make up the entire record in this appeal, I outline them in some detail in the following paragraphs.

4                                   In response to Revenue Canada’s first refusal decision, the Society amended its constitution on August 21, 1992, to restrict the scope of its purposes, so that the Society’s purposes were as set out below:

2.    (a)       To educate members of the Community at large, including immigrant & visible minority women, on the needs and concerns of immigrant & visible minority women in Canada;

(b)       To foster and promote social awareness and community  involvement in civic education, volunteer and membership development and preventive social services;

(c)       To facilitate immigrant and visible minority women in achieving economic and social independence and their full potential in Canadian society;

(d)       To co-operate and build a network within British Columbia, especially among immigrant and visible minority women and concerned individuals and groups, in order to provide current information and services for the purpose of mutual support;

(e)       To provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.

5                                   On March 17, 1993, the Society replied to Revenue Canada’s refusal letter.  The Society explained why it should be registered under the ITA , and asked that its application be re-assessed.  The Society’s letter outlined its purposes and activities.  It reiterated its earlier assertion that its purposes were “non-political”.  The Society stated that it sought to assist and educate the community at large, but that its particular (though non-exclusive) focus was upon immigrant and visible minority women.  The Society indicated that its services and workshops were designed to “relieve poverty” and “advance education”.  To these ends, the Society’s activities included a “career and vocational counselling service” to assist women in obtaining employment, and assistance in such practical skills as “resume writing, interview skills, and dealing with Canadian employers”.  In addition, the Society indicated that one of its current projects was an “anti-racism education workshop”.

6                                   Revenue Canada replied with a form letter on April 5, 1993 indicating that it would not commence a review of the Society’s application until it had received further information from the Society.  Revenue Canada’s letter stated that the Society’s March 17, 1993 application had not been made on the prescribed form, and enclosed a copy of the T2050 form.

7                                   The Society made a second application for registration on May 10, 1993, by completing the T2050 form and returning it to Revenue Canada, along with a cover letter.  A Revenue Canada official telephoned the Society on August 24, 1993, to request further clarification as to how its programs were conducted and who was eligible to participate in the programs.  The Revenue Canada official wrote a memorandum to file regarding the information obtained during this telephone conversation.  The relevant portion of the memorandum is set out below:

1.  Membership

About 300 members from all walks of life seeking employment opportunities and general support for integration into Canadian life.

2.  Job Skills Directory

In addition to its own membership, others wishing to be included in the directory are listed, for a total of approx. 600 persons, ranging from those on social assistance to professionals who have been in the country for a few years and wish to re-enter the work force.  No percentages available re income level of those listed.

The Society does not arrange interviews for persons listed.  Organizations wishing to employ persons send notice to the Society of jobs that are available.  While this information may be brought to the attention of individuals with the required skills, it is up to the person to make the contact and seek the job.

The Directory is not circulated in the job market, but its existence is advertised by the Society in EIC, in educational institutions, etc.

3.  Job Skills Training

Other than placing volunteer workers as receptionists, clerks, bookkeepers, computer operators, etc. within the Society’s operation, no training in various skills is undertaken by the Society.

However, pre-Employment counselling re resumes, conduct of job interviews, where to apply for jobs, etc. is conducted by the Society.

4.  Employment Equity and Foreign Credentials Committees

Both are concerned with the matter of recognition of degrees and certifications earned in other countries which are not accepted in Canada.  Workshops and meetings with teaching and nursing associations and institutions are held to discuss accreditation of certifications and informing individuals of courses required to bring their qualifications to Canadian standards.

This is strictly an educational process -- doesn’t involve legislation.

5.  ESL Classes -- are conducted by Employment & Immigration Canada.  The Society refers its people to EIC and advises EIC when a need for the class arises.

6.  Support Group for Professionals

Assistance and encouragement is given by professional committee to professional members wishing to enter or re-enter the work force, most often with regard to upgrading their certification to meet Canadian requirements.

                                                                   . . .

I questioned “preventive social services”.  She explained such activities as public workshop [sic], meetings on matters like abuse, violence vs. women, anti-racism.

8                                   On August 27, 1993, Revenue Canada wrote to the Society to advise it that, as it was then constituted, the Society was “unlikely to qualify for registration”.  The letter outlined Revenue Canada’s various objections to the Society’s purposes and activities.  On December 3, 1993, counsel for the Society wrote to Revenue Canada, enclosing a draft copy of further proposed amendments to the Society’s constitution for Revenue Canada’s review and approval.  The proposed amendments had been drafted in response to Revenue Canada’s earlier objections, and revised the Society’s purposes to read as follows:

2.  PURPOSES

The purposes of the Society are:

a.    to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment;

b.    to carry on political activities provided such activities are incidental and ancillary to the above purposes and provided such activities do not include direct or indirect support of, or opposition to, any political party or candidate for public office; and

c.    to raise funds in order to carry out the above purposes by means of solicitations of funds from governments, corporations and individuals.

9                                   A Revenue Canada official telephoned counsel for the Society on December 23, 1993, to explain her continuing concerns about the wording of the Society’s proposed objects.  In a memorandum to file, the Revenue Canada official indicated that she had also explained to counsel for the Society that she had concerns about the Society’s activities.  The memorandum stated that the Society was told that “the educational aspect must be conducted in a structured manner, not merely informational [sic]”, and that “immigrant and visible minority women as a whole was [sic] not an object of charity”.  Finally, the memorandum indicated that the Society was told that its proposed objects were “not acceptable”, particularly the reference to political activities in clause 2(b), and that counsel for the Society had indicated that object 2(a) “did not really reflect what the organization is doing”.

10                               This telephone call was followed by a letter from Revenue Canada to the Society dated January 25, 1994, which again outlined Revenue Canada’s objections to the Society’s proposed objects.  In that letter, Revenue Canada stated that proposed purpose 2(a) could be a charitable purpose, but only if the Society’s intent was to “educate persons in the charitable sense of training the mind which includes the learning of a vocational skill, or to improve on a useful branch of human knowledge”.  However, the mere presentation of “selected items of information” would not qualify as being for the advancement of education.  Revenue Canada also stated that proposed purposes 2(b) and (c) were not charitable purposes, but that they might be considered “as ancillary and incidental activities carried on in furtherance of a charitable purpose”.  The letter went on to state:

Turning to activities undertaken by the Society which might have been considered educational, it appears from our further examination of the material on file that these are primarily information sessions.  I cite, for example, discussions sponsored by the Society on such subjects as human rights, employment equity, violence and abuse against women, and how to start a small business.  While these sessions are indeed informative and helpful to interested persons, they do not appear to be presented in a systematic and structured manner considered to be educational in the charitable sense.  Additionally, activities such as networking, liaising for accreditation of credentials and the compilation and circulation of a Job Skills Directory are neither educational nor charitable activities and are more apt to provide a private rather than public benefit.

In determining whether an applicant qualifies for charitable registration, I must emphasize that we take into account the organization’s operation and application of its resources as a whole.  While all activities undertaken by the Society have not been addressed in this letter, the salient points regarding the advancement of education have been explained.

11                               The Society responded with a letter dated May 4, 1994, confirming that it “does not engage in any partisan political activity”, and that, as required by the ITA , it does not spend more than 10 percent of its budget on political activity.  The letter did not address the other concerns outlined by Revenue Canada’s letter of January 25, 1994.  Perhaps surprisingly, given Revenue Canada’s unfavourable response, the Society amended its constitution on May 10, 1994, in line with its earlier proposal.  Paragraphs (a), (b) and (c) were replaced by the three paragraphs set out in the Society’s letter of December 3, 1993.  Paragraph (d) was deleted.  The Society’s purposes thus read as follows:

2.    a.  to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment;

b.  to carry on political activities provided such activities are incidental and ancillary to the above purposes and provided such activities do not include direct or indirect support of, or opposition to, any political party or candidate for public office; and

c.  to raise funds in order to carry out the above purposes by means of solicitations of funds from governments, corporations and individuals;

d.

e.  to provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.

12                               Counsel for the Society sent another letter to Revenue Canada, dated May 20, 1994, in which it again sought status as a registered charity, and took issue with Revenue Canada’s previous assertion that the Society’s objects were not charitable.  Included with this letter was a copy of a report written in 1989 by Lakshmi Bhagavatula entitled “A Study of Immigrant Women in Vancouver”.  A Revenue Canada official indicated, in response to a telephone inquiry from the Society, that Revenue Canada would refuse the Society’s application for registration, and that a formal written refusal would be sent to the Society in due course.  In a letter dated October 14, 1994, Revenue Canada refused to register the Society as a charitable organization.

13                               The Society appealed Revenue Canada’s refusal to register it as a charitable organization to the Federal Court of Appeal, pursuant to s. 172(3)  of the ITA .  On March 6, 1996, the Federal Court of Appeal (Décary J.A., Strayer and Linden JJ.A. concurring) dismissed the Society’s appeal.  The Society was granted leave to appeal to this Court on March 6, 1997 (L’Heureux-Dubé, Sopinka and McLachlin JJ.), [1997] 1 S.C.R. xii.

II. Relevant Legislative Provisions

14                               Income Tax Act , R.S.C., 1985, c. 1 (5th Supp .)

149.1 (1) ...

“charitable foundation” means a corporation or trust that is constituted and operated exclusively for charitable purposes, no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof, and that is not a charitable organization;

“charitable organization” means an organization, whether or not incorporated,

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

(b)  no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof,

(c)  more than 50% of the directors, trustees, officers or like officials of which deal with each other and with each of the other directors, trustees, officers or officials at arm’s length, and

(d)  where it has been designated as a private foundation or public foundation pursuant to subsection (6.3) of this section or subsection 110(8.1)  or (8.2)  of the Income Tax Act , chapter 148 of the Revised Statutes of Canada, 1952, or has applied after February 15, 1984 for registration under paragraph 110(8)(c) of that Act or under the definition “registered charity” in subsection 248(1), not more than 50% of the capital of which has been contributed or otherwise paid into the organization by one person or members of a group of persons who do not deal with each other at arm’s length and, for the purpose of this paragraph, a reference to any person or to members of a group does not include a reference to Her Majesty in right of Canada or a province, a municipality, another registered charity that is not a private foundation, or any club, society or association described in paragraph 149(1)(l);

“charitable purposes” includes the disbursement of funds to qualified donees;

(6.2) For the purposes of the definition “charitable organization” in subsection (1), where an organization devotes substantially all of its resources to charitable activities carried on by it and

(a) it devotes part of its resources to political activities,

(b) those political activities are ancillary and incidental to its charitable activities, and

(c) those political activities do not include the direct or indirect support of, or opposition to, any political party or candidate for public office,

the organization shall be considered to be devoting that part of its resources to charitable activities carried on by it.

248. (1)  ...

“registered charity” at any time means

(a) 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

(b) a branch, section, parish, congregation or other division of an organization or foundation described in paragraph (a), that is resident in Canada and was either created or established in Canada and that receives 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;

III. Judgments at Issue

A.  Revenue Canada’s Refusal Decision, October 14, 1994

15                               In a letter dated October 14, 1994, Revenue Canada denied the Society’s application for registration as a charitable organization under ss. 149.1(1)  and 248(1)  of the ITA .  Revenue Canada emphasized that in order to be eligible for registration as a charity, an organization’s purposes must be exclusively charitable, and it must devote substantially all of its resources towards those charitable purposes.  Revenue Canada stated that its previous concerns on the point had not been alleviated by the Society’s letter of May 20, 1994.

16                               First, Revenue Canada rejected the analogy which the Society had drawn between its beneficiaries, immigrant and visible minority women, and aboriginal people.  On this basis, Revenue Canada distinguished Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471 (C.A.), the case relied upon by the Society in support of its application.  Revenue Canada took the position that women as a class do not meet the criteria set out in that case, and stated that “the courts have not considered women simply by virtue of their gender or racial origin to be in special need of charitable relief”.

17                               Second, Revenue Canada was not persuaded by the Society’s claim that its programs fit within the common law definition of “advancement of education” as that term is understood in the law of charity.  Revenue Canada observed that the Society’s submission “has not demonstrated that the Society’s programs fall into the education category or that its method of operation and activities have been altered to pursue the revised objective”. 

18                               Third, Revenue Canada repeated its concern, expressed in its earlier letter to the Society of January 25, 1994, that object 2(b) of the Society “is a political purpose and an organization created for political purposes, whether in whole or in part, cannot be charitable”.

19                               Finally, Revenue Canada outlined its most fundamental objection to the Society’s application for registration:

I would advise that although some of the activities carried on by the Society may appear to be charitable, the submission has not demonstrated that the organization devotes substantially all its resources to charitable activities.  Activities such as networking, referral services, liaising for accreditation of credentials, soliciting job opportunities and maintaining a job skills directory as described in the Society’s May 1993 Report are not charitable activities.

20                               Accordingly, Revenue Canada denied the Society’s request for registration as a charitable organization.

B.  Federal Court of Appeal, 96 D.T.C. 6232

21                               Décary J.A. (with whom Strayer and Linden JJ.A. joined) dismissed the Society’s appeal from Revenue Canada’s refusal to register it as a charitable organization.  Décary J.A. held that the primary issue was whether the Society’s activities fell within one or more of the categories of charity set out by Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 (H.L.), as developed by the Federal Court of Appeal in subsequent cases, including Native Communications Society, supra, and Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52.  In particular, the two categories of the Pemsel scheme under consideration were the second (“advancement of education”) and fourth (“other purposes beneficial to the community”).

22                               Décary J.A. found no reversible error in Revenue Canada’s decision refusing to register the Society as a charitable organization.  Under the head of “advancement of education”, Décary J.A. held, at p. 6233, that purpose “(a)” of the Society, as set out in its amended constitution, namely

a.    to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment;

as well as the Society’s activities as described in the material before the court “are not sufficiently structured and articulated as to respond to the requirements set out by the jurisprudence”.

23                               Second, Décary J.A. held that the Society’s purposes did not fit within the fourth category of charity identified by Lord Macnaghten in Pemsel.  In particular, Décary J.A. rejected the Society’s efforts to analogize its beneficiaries to aboriginal people, and so bring the Society in line with the Federal Court of Appeal’s decision in Native Communications Society, supra.

24                               Third, Décary J.A. declined to accept the Society’s Charter  arguments, although it is not entirely clear from the Court’s reasons exactly what those arguments were.  It appears that the Society attempted to place its class of proposed beneficiaries within s. 15(1)  of the Canadian Charter of Rights and Freedoms , arguing that an organization whose purpose was to benefit a class of people identifiable by an enumerated or analogous ground under s. 15(1)  of the Charter  should be considered to be, prima facie, charitable in law.  Décary J.A. held that the mere fact that the Society intended to benefit persons specifically protected by s. 15(1)  of the Charter  could not in itself render the Society’s purposes (or activities) charitable.  The provision of a benefit to those in a position to invoke Charter  rights was not in itself a purpose or activity falling within the fourth head of Lord Macnaghten’s classification in Pemsel.

25                               In closing, Décary J.A. stated, at p. 6233, that the Federal Court of Appeal’s “basic difficulty” with the Society’s application was that “its purposes and activities are so indefinite and vague as to prevent the Minister, and this Court, from determining with some degree of certainty what the activities are, who are the true beneficiaries of the activities and whether these beneficiaries are persons in need of charity as opposed to merely being in need of help”.  On this basis, Décary J.A. concluded that the Minister had not erred in denying the Society’s application for registration as a charitable organization.

IV. Analysis

A.  Introduction

26                               Given the central role that charities play in our society, the large sums of money devoted to charitable purposes, and the considerable privileges that attach to charitable status, Parliament has considered it essential to provide a legal framework to regulate charities and their activities.  That legal framework, which aims to ensure that charities use the funds provided to them for charitable purposes, and pursue those purposes in an efficient manner, is of ancient origin.  The constantly evolving common law definition of charity has been incorporated into federal income tax legislation since charities were accorded special status under The Income War Tax Act, 1917, S.C. 1917, c. 28, s. 5(d).  The present appeal requires us to consider the definition of charity, and more particularly, to determine whether the Society fits within the scope of the term “charitable organization” in s. 149.1(1)  of the ITA .  For the reasons that follow, I believe that it does.

27                               An organization seeking status as a registered charity under the ITA  must apply to the Minister under s. 248(1)  of the ITA .  The Minister’s authority under that subsection has been delegated, by the operation of s. 900(8) of the Income Tax Regulations, C.R.C., c. 945, to the Director, Charities Division of the Department of National Revenue, Taxation.  Perhaps surprisingly, the ITA and its regulations say practically nothing about the process by which such applications are to be considered, the requirements for registration, or the materials to be submitted in support of such applications.

28                               It is well known that the ITA  does not define “charity” or “charitable”, other than to define “charity” to mean “a charitable organization or charitable foundation”, which are themselves defined terms.  Instead, as the Federal Court of Appeal stated in Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340, at p. 347, “the Act appears clearly to envisage a resort to the common law for a definition of #charity$ in its legal sense as well as for the principles that should guide us in applying that definition”.  Because the law of charity had its origin in the law of trusts, many of the leading authorities in this area arose in the context of determining the essential validity of a putative charitable trust.  Since the introduction of the ITA , the tax dimension of charities law has assumed much greater practical importance.  Most cases now concern a pre-existing organization (which may take one of a number of possible legal forms) seeking registration under the ITA , rather than the evaluation of the essential validity of a trust.  Parliament has, in effect, incorporated the common law definition of charity into the ITA , and in doing so, has implicitly accepted that the courts have a continuing role to rationalize and update that definition to keep it in tune with social and economic developments.  I note in passing that the definition of “charity” or “charitable” under the ITA  may not accord precisely with the way those terms are understood in the common law provinces, due to judicial decisions and provincial statutory incursions into the common law.  The ITA ’s conception of charity, by contrast, is uniform federal law across the country.

29                               Two main advantages are obtained by achieving status as a registered charity.  The first is the ability to provide receipts to donors, who, if they are individuals, are entitled to claim a tax credit for their “total charitable gifts” (defined in s. 118.1(1)  of the ITA ), pursuant to s. 118.1(3)  of the ITA , and if corporations, may claim a deduction from their taxable income for all “charitable gifts”, pursuant to s. 110.1(1) (a) of the ITA .  Second, registered charities pay no tax on income (ITA , s. 149(1) (f)).  The attraction of status as a registered charity is thus obvious.

B.  Principles Governing the Law of Charity

30                               As my colleague Iacobucci J. observes, the definition of “charity” is the product of almost four centuries of common law development.  Given the historical origins of this branch of law, English jurisprudence has been highly influential.  The starting point for determining whether a purpose is charitable in law is the Charitable Uses Act, 1601 (also known as the Statute of Elizabeth or the Statute of Charitable Uses, 43 Eliz. 1, c. 4).  The preamble to that statute contains an enumeration of various charitable purposes:

WHEREAS Landes Tenements Rentes Annuities Profittes Hereditamentes, Goodes  Chattels Money and Stockes of Money, have bene heretofore given limitted appointed and assigned, as well by the Queenes moste excellent Majestie and her moste noble Progenitors, as by sondrie other well disposed persons, some for Releife of aged impotent and poore people, some for Maintenance of sicke and maymed Souldiers and Marriners, Schooles of Learninge, Free Schooles and Schollers in Universities, some for Repaire of Bridges Portes Havens Causwaies Churches Seabankes and Highewaies, some for Educacion and prefermente of Orphans, some for or towardes Releife Stocke or Maintenance for Howses for Correccion, some for Mariages of poore Maides, some for Supportacion Ayde and Helpe of younge Tradesmen, Handiecraftesmen and persons decayed, and others for releife or redemption of Prisoners or Captives, and for aide or ease of any poore Inhabitants concerninge paymente of Fifteenes, settinge out of Souldiers and other Taxes, Whiche Landes Tenements Rents Annuities Profitts Hereditaments Goodes Chattells Money and Stockes of Money nevertheles have not byn imployed accordinge to the charitable intente of the givers and founders thereof, by reason of Fraudes breaches of Truste and Negligence in those that shoulde pay delyver and imploy the same....

31                               In Vancouver Regional FreeNet Assn. v. M.N.R., [1996] 3 F.C. 880 (C.A.), at p. 885, Hugessen J.A. (like Slade J. before him in McGovern v. Attorney-General, [1982] Ch. 321, at p. 332) rendered this archaic style into modern language:

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

32                               The Statute of Elizabeth itself was repealed by the Mortmain and Charitable Uses Act, 1888 (U.K.), 51 & 52 Vict., ch. 42, s. 13(1), though the preamble was retained by operation of s. 13(2).  However, the 1888 Act, including the preamble, was itself later repealed by the Charities Act, 1960 (U.K.), 8 & 9 Eliz. 2, c. 58, s. 38, so no statutory authority for the preamble now exists.  Yet it is widely recognized that the preamble has been absorbed into the common law, and thus it has continued to exert considerable influence over this area of the law.  It will immediately be seen that the preamble provides a list of examples, rather than a definition, of charitable purposes.  In recognition of this, the House of Lords undertook a categorization of charitable purposes in their well-known decision in Pemsel, supra.  In an oft-quoted passage, Lord Macnaghten observed, at p. 583:

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.

33                               As Iacobucci J. observes, the Pemsel classification was approved by this Court in Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133, at p. 141, where Ritchie J. noted that it had “received general acceptance in this country”.  This Court had earlier adopted the outlines of the Pemsel classification (though not describing it as such) in The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76, at p. 88.  The Pemsel classification has been invoked by the Federal Court of Appeal in most cases in the area since then.

34                               Two salient features of the Pemsel classification scheme bear emphasis.  First, the Pemsel scheme must be distinguished from the preamble to the Statute of Elizabeth.  There is wide agreement that the preamble was never intended to be, and is not, a complete enumeration of charitable purposes.  As the full title of the Statute of Elizabeth makes clear (An Acte to redresse the misemployment of Landes, Goodes and Stockes of Money heretofore given to Charitable Uses), the purpose of the statute was to provide a more effective enforcement mechanism to ensure that charitable property was not misapplied to non-charitable uses.  See G. Jones, History of the Law of Charity 1532-1827 (1969), at pp. 57-58.  Thus, although the purposes enumerated in the preamble are charitable, many other purposes not enumerated in the preamble have also been accepted as being charitable in law.  This was recognized early on by Sir Lloyd Kenyon M.R. in Turner v. Ogden (1787), 1 Cox 316, 29 E.R. 1183, at p. 1183 (“the statute does not affect to mention all”), and has been followed ever since, as Russell L.J. confirmed in Incorporated Council of Law Reporting for England and Wales v. Attorney-General, [1972] Ch. 73 (C.A.), at p. 87.

35                               Unlike the preamble, Pemsel provides a classification, rather than an enumeration, of charitable purposes.  The preamble, as we have just seen, is not exhaustive.  By contrast, the Pemsel classification is exhaustive:  any purpose which is charitable must fit into one or more of the four Pemsel categories, although admittedly the fourth category is very broad due to its residual nature.  Both the Pemsel classification and the preamble provide a description rather than a definition of charitable purposes.  Yet neither the Pemsel classification nor the preamble explain why the purposes they classify or enumerate are charitable:  both simply assert that they are.  As I explain below, the courts must have resort to principle in the development of the law of charity.  That said, the Pemsel classification includes purposes not enumerated in the preamble, of which the advancement of religion is perhaps the most prominent example.  As well, the Pemsel classification is pitched at a higher level of abstraction than the preamble, and for that reason has largely replaced the preamble as the starting point for the courts in determining whether a particular purpose is charitable.

36                               Second, I underscore that the Pemsel classification is a flexible judicial creation, and thus amenable to subsequent change and development.  The Pemsel scheme has been described as “a classification of convenience” which “must not be given the force of a statute”:  Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138 (H.L.), at p. 154.  The courts have on several occasions emphasized that the categories of charity are not closed, and that the purposes considered to be charitable at law evolve with social developments.  See, e.g., Scottish Burial Reform, at p. 154; In re Strakosch, [1949] Ch. 529 (C.A.), at p. 537.  This innate flexibility has enabled the courts to modernize the law of charity in recognition of changing social needs.  The purposes listed in the preamble illustrate purposes seen as proper objects of charity, having regard to the social needs of the time.  The wide range of purposes set out in the preamble — ranging from the “repair of bridges” to the maintenance of “schools of learning” and the “relief or redemption of prisoners or captives” — indicates that the Tudor conception of charity was very broad.  The Pemsel classification provides a framework within which the courts may adapt the law as those social needs change.  Of course, the courts must be guided by principle when determining whether a particular purpose is charitable.  In the absence of clearly defined principles in this area, the courts (and perhaps more importantly, administrative decision makers, such as the Minister, who rely on judicial decisions) may become too wedded to outdated conceptions of the existing categories and lose sight of the underlying principles which motivate the law of charity.

37                               Two central principles have long been embedded in the case law.  Speaking of the existing Pemsel categories, Rand J. observed in Sunny Brae, supra, at p. 88, that “the attributes attaching to all are their voluntariness and, directly or indirectly, their reflex on public welfare”.  These two principles, namely, (1) voluntariness (or what I shall refer to as altruism, that is, giving to third parties without receiving anything in return other than the pleasure of giving); and (2) public welfare or benefit in an objectively measurable sense, underlie the existing categories of charitable purposes, and should be the touchstones guiding their further development.

38                               Before turning to the substance of this appeal, it is useful to review two key elements of the law of charity as a background for the consideration of what follows.  These principles originated in the law of trusts, and have been modified slightly with the advent of the ITA  regime.  The first is the principle of exclusivity.  To qualify as charitable, the purposes of an organization or trust must be exclusively charitable:  Guaranty Trust, supra, at p. 143 (citing British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462 (C.A.), at p. 467), and Jones v. T. Eaton Co., [1973] S.C.R. 635, at p. 641.  The exclusivity requirement is also reflected in the ITA  itself.  The definition of “charitable organization” contained in s. 149.1(1) specifies that “all the resources” of the organization must be “devoted to charitable activities carried on by the organization itself”, and that “no part of the income” of the organization may personally benefit a “proprietor, member, shareholder, trustee or settlor” (emphasis added).

39                               The primary reason for the exclusivity requirement is, as Slade J. observed in McGovern, supra, at p. 340, that if charitable organizations were permitted to pursue a mixture of charitable and non-charitable purposes, there could be no certainty that donations to them would be channelled to the pursuit of charitable purposes.  See also Brewer v. McCauley, [1954] S.C.R. 645, at pp. 646-47.  The ITA  imposes, in s. 149.1(1), a further requirement that a charitable organization must devote all of its resources to charitable activities.  The importance of this requirement is discussed in greater detail below.  At this point, I wish only to highlight the distinction between charitable purposes and charitable activities. 

40                               It is essential to appreciate, as my colleague Iacobucci J. does, that the exclusivity requirement does not quite mean what it says, a position this Court affirmed in Guaranty Trust, supra, at p. 143.  It has long been accepted that the pursuit of purposes which, though not charitable in themselves, are merely ancillary or incidental to the fulfilment of the primary, charitable, purposes of an organization will not cause the organization to run afoul of the exclusivity requirement.  At a certain point, of course, a purpose may grow to assume a collateral rather than incidental nature.  If so, it will no longer be a means to the fulfilment of the organization’s primary purposes, but will have become an end in itself.  If the collateral purpose is not itself charitable, its pursuit will render the organization in breach of the exclusivity requirement.

41                               A second requirement for charitable status is, as Iacobucci J. confirms,  that the purposes of the trust or organization must be “[f]or the benefit of the community or of an appreciably important class of the community”, as Ritchie J. stated in Guaranty Trust, supra, at p. 141 (citing Verge v. Somerville, [1924] A.C. 496 (P.C.), at p. 499).  The public benefit requirement has two distinct components.  There must be an objectively measurable and socially useful benefit conferred; and it must be a benefit available to a sufficiently large section of the population to be considered a public benefit.  As will be seen below, although the public benefit requirement applies to all charitable purposes, it is of particular concern under the fourth head of Lord Macnaghten’s scheme in Pemsel:  see Inland Revenue Commissioners v. Baddeley, [1955] A.C. 572 (H.L.), at p. 590.  This is so because under the first three heads, public benefit is essentially a rebuttable presumption, whereas under the fourth head it must be demonstrated:  National Anti-Vivisection Society v. Inland Revenue Commissioners, [1948] A.C. 31 (H.L.), at p. 42.  Although the requirement of public benefit is raised only obliquely on the facts of this appeal, it is essential to keep in mind in any consideration of an application for status as a registered charity.  I now turn to consider whether the Minister erred in refusing to register the Society as a charitable organization.

C.  The Proper Test for Determining the Charitable Nature of a Purpose

42                               I begin by addressing the proper approach to the determination of whether a particular purpose is charitable in law.  It is widely accepted that the courts must begin with the Pemsel classification and determine whether the purposes of the organization under consideration may be placed within one or more of the categories contained therein.  The Pemsel classification carves out three presumptively charitable categories (relief of poverty, advancement of education, and advancement of religion) and creates a residual fourth category of charitable purposes (“other purposes beneficial to the community”), which itself comprises a number of recognized subcategories.  As I explain below, distinct considerations apply to the fourth head.  In determining whether a given purpose is charitable, the courts adhere to the analogical approach to legal reasoning familiar to the common law.  However, unlike the preamble, the Pemsel classification does not itself provide any enumeration of purposes from which to analogize to putatively charitable purposes under consideration.  Consequently, the courts continue to look to the preamble when considering purposes classified under the fourth head of the Pemsel scheme.  As this Court indicated in Blais v. Touchet, [1963] S.C.R. 358, at p. 360, the distinctions drawn by the courts in this area may at times be extremely fine.  “The pursuit of these analogies”, Chitty J. confirmed in In re Foveaux, [1895] 2 Ch. 501, at p. 504, “obviously requires caution and circumspection”.

43                               The authorities are littered with statements bemoaning the confusion that may result in the course of an analysis of the fourth head of the Pemsel classification.  Hugessen J.A. recently observed in Vancouver Regional FreeNet Assn., supra, at p. 886, that the fourth head has been “the source of confusion and difficulty”.  See also the comments of Viscount Simonds in Baddeley, supra, at p. 583.  Yet the task is not nearly so complicated.  The leading Canadian authority on the scope of the fourth head of the Pemsel classification scheme is Native Communications Society, supra.  In that case, Stone J.A. held, at pp. 479-80:

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 Anti-Vivisection Society v. Inland Revenue Commissioners, [1948] A.C. 31 (H.L.), at pages 63-64; In re Strakosch, decd. Temperley 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).

44                               When considering a purpose under the fourth head of the Pemsel classification, the courts must determine whether the purpose may be placed within the language of the preamble, or whether an analogy may be made with a purpose contained in the preamble.  Courts have then taken the next step, and have drawn new analogies to purposes themselves already deemed analogous to those contained in the preamble.  Thus, the courts begin with the language of the preamble, but do not limit themselves to it.  They speak of looking to whether the purpose under consideration fits within the preamble’s “spirit and intendment”, or of the “equity of the Statute”:  Scottish Burial Reform, supra, at p. 147; Law Reporting case, supra, at p. 89.  Reference to the “spirit and intendment” of the preamble has actually overtaken reference to the preamble itself.  Thus, in Scottish Burial Reform, at p. 154, Lord Wilberforce said that the “spirit and intendment” 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 according as new social needs arise or old ones become obsolete or satisfied.

45                               The authorities provide that the mere fact that a purpose is of public benefit does not, without more, render that purpose charitable.  Only a subcategory of purposes which benefit the public are charitable.  To qualify as charitable, a purpose must be beneficial to the public “in a way which the law regards as charitable”:  Williams’ Trustees v. Inland Revenue Commissioners, [1947] A.C. 447 (H.L.), at p. 455; Positive Action Against Pornography, supra, at p. 350.  This sounds circular, but the boundary marking off the subcategory — distinguishing those purposes considered to be beneficial “in a way which the law regards as charitable” — is established by the “spirit and intendment” requirement.  The “spirit and intendment” requirement simply directs the courts to ensure that the purpose at issue is of the same type or nature as those enumerated in the preamble:  Vancouver Regional FreeNet Assn., supra, at p. 891; In re Strakosch, supra, at p. 537; Peggs v. Lamb, [1994] 2 All E.R. 15 (Ch. D.), at p. 33.

46                               A helpful encapsulation of these considerations may be found in Lord Wilberforce’s speech in D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970]  T.R. 31 (P.C.), at p. 33:

The difficulties inherent in the definition of the fourth heading have been well exemplified in the decisions of the Courts both before and since 1891.  An attempt has been made to give it greater precision by adding to the phrase

“purposes beneficial to the community”

the qualifications

“in a way the law regard [sic] as charitable”,

and

“within the spirit and intendment of the preamble to the Statute of Elizabeth” (43 Eliz. I c. 4.)

But these are not the clearest of guidelines.  The first brings the argument round in a circle close to its starting-point; the second throws one back upon an enumeration with no common character, many centuries out of date.  But the process which the Court must follow, however difficult, is now fairly well established.  It must first consider the trend of those decisions which have established certain objects as charitable under this heading, and ask whether, by reasonable extension or analogy, the instant case may be considered to be in line with these.  Secondly, it must examine certain accepted anomalies to see whether they fairly cover the objects under consideration.  Thirdly — and  this is really a cross-check upon the others — it must ask whether, consistently with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity:  if so, the argument for charity must fail.

47                               Out of a certain degree of frustration, some courts have focused upon the conception of public benefit itself as the touchstone of charitable status under the fourth head of the Pemsel classification, with minimal resort to the “spirit and intendment” of the preamble of the Statute of Elizabeth as a further limiting factor.  In the Law Reporting case, supra, both Russell L.J., at pp. 88-89, and Sachs L.J., at p. 94, favoured such an approach, which essentially eliminates the requirement that the purpose be demonstrated to be for the public benefit in a way the law regards as charitable.  On this account, once it is demonstrated that a purpose is for the public benefit, it should be considered prima facie charitable, barring compelling policy grounds to deem the purpose non-charitable.

48                               Although dropping the requirement that a purpose must be for the public benefit in a way the law recognizes as charitable is not without its attractions, it is not easily reconcilable with earlier authorities (see on this point Royal National Agricultural and Industrial Association v. Chester (1974), 3 A.L.R. 486 (H.C.), at p. 489).  Moreover, I also share my colleague’s concern that the adoption of such an approach by this Court would tend to blur the ITA ’s distinction between charitable organizations and non-profit organizations.  I might add, however, that I am not persuaded that the approach I adopt in these reasons does anything to weaken that distinction.  The requirement that a charitable organization must pursue a public benefit in a way which the law regards as charitable should be maintained.  Nonetheless, in determining whether a purpose is for the public benefit in a way which the law regards as charitable, we must recall that the legal conception of charity must evolve, and respond to social developments.  We must adhere to principle as well as precedent.

49                               The best approach, in my view, is one which marries adherence to principle with respect for the existing categories as established by the Pemsel scheme.  We must avoid the Scylla of blind adherence to an inflexible enumeration of charitable purposes, by testing purported purposes against broad principles.  At the same time, we must bypass the Charybdis of attempting to evaluate the charitable status of a purpose by simple reference to an abstract principle — public benefit — without the benefit of analogical reasoning and the common law inheritance of authorities.  I have in mind a similar approach to that which this Court has adopted to the law of unjust enrichment.  McLachlin J., writing for the majority of this Court in Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762, spoke of the need to find a balance between what she termed the “category” and the “principled” approaches in the law of unjust enrichment.  I find this to be of assistance in illustrating the path that should be taken in the law of charity.  It would be unwise to jettison the vast historical inheritance associated with judicial development of the law of charity, although I do think it appropriate to ensure that the existing common law accords with certain identifiable principles which should guide the development of this area of law as a whole.

50                               How then should the Court undertake the task of modernizing the existing categories of charitable purposes?  One commentator, reflecting on the observation made above that neither the preamble nor the Pemsel classification purport to define charitable purposes, has suggested that the preamble is best viewed as an agenda for social improvement:  E. B. Bromley, “Contemporary Philanthropy — Is the Legal Concept of “Charity” Any Longer Adequate?”, in D. W. M. Waters, ed., Equity, Fiduciaries and Trusts 1993 (1993), 59, at pp. 65-66.  Our perceptions as to what should and should not be included on that agenda have changed over the centuries, as they will continue to do.  New social needs arise, and old social problems decline in importance.  Consequently, it would be a mistake to make a fetish of the purposes enumerated in preamble.  Rather, the Court should adhere to the principles of altruism and public benefit, to which I adverted above, in order to identify new charitable purposes and to ensure that existing ones continue to serve the public good.  The law should reflect the realization that although the particular purposes seen as worthy of pursuit change over time, the principles of which they are instantiations endure.

51                               Thus, in determining whether a particular purpose is charitable, the courts must look to both broad principles — altruism and public benefit — as well as the existing case law under the Pemsel classification.  The courts should consider whether the purpose under consideration is analogous to one of the purposes enumerated in the preamble of the Statute of Elizabeth, or build analogy upon analogy.  Yet the pursuit of analogy should not lead the courts astray.  One’s eye must always be upon the broader principles I have identified, which are the Ariadne’s thread running through the Pemsel categories, and the individual purposes recognized as charitable under them.  The courts should not shy away from the recognition of new purposes which respond to pressing social needs.

D.  The Distinction Between Charitable Purposes and Charitable Activities

52                               In the law of charity, the courts’ primary concern is to determine whether the purposes being pursued are charitable.  It is these purposes which are essential, not the activities engaged in, although the activities must, of course, bear a coherent relationship to the purposes sought to be achieved.  (I pause to emphasize that motive and purpose are not synonymous.  The courts are not, in general, concerned with the motive of a donor or volunteer, only with the purpose being pursued.)  A common source of confusion in this area is that judges and commentators alike often conflate the concept of “charitable purposes” and “charitable activities”.  The former is a long-established concept in the common law of charitable trusts.  The latter is a much more recent innovation:  it is contained in the ITA , but has no history in the common law. The distinction between charitable purposes and activities was identified by Ritchie J. for this Court in Guaranty Trust, supra, at p. 147.  Subsequently, that distinction has been the subject of comment in a number of decisions of the Federal Court of Appeal, including Scarborough Community Legal Services v. The Queen, [1985] 2 F.C. 555, at p. 579; Toronto Volgograd Committee v. M.N.R., [1988] 3 F.C. 251; and Everywoman’s Health Centre Society, supra.

53                               A critical difference between purposes and activities is that purposes may be defined in the abstract as being either charitable or not, but the same cannot be said about activities.  That is, one may determine whether an activity is charitable only by reference to a previously identified charitable purpose(s) the activity is supposed to advance.  The question then becomes one of determining whether the activity has the effect of furthering the purpose or not, as Iacobucci J. notes at para. 152. In determining whether an organization should be registered as a charitable organization, we must, as my colleague Iacobucci J. indicates, look not only to the purposes for which it was originally instituted, but also to what the organization actually does, that is, its activities.  But we must begin by examining the organization’s purposes, and only then consider whether its activities are sufficiently related to those purposes.

54                               In the Law Reporting case, supra, at p. 86, Russell L.J. illustrated this point by supposing the example of a company which published the Bible for profit, and compared it to one which published the Bible without a view to profit, but with the purpose of distributing copies of it to the public.  In each case, the activity engaged in — publishing the Bible — is identical.  But the purposes being pursued are very different, and consequently the status of each company also differs.  Although the former company clearly would not be pursuing a charitable purpose, the latter almost certainly would be.  This example demonstrates that an activity, taken in the abstract, can rarely be deemed charitable or non-charitable.  Rather, it is the purpose underlying the activity to which the courts must look initially in assessing whether the activity is charitable.  It must then be determined whether there is a sufficient degree of connection between the activity engaged in and the purpose being pursued, but this is a distinct inquiry involving separate considerations.  Purposes are the ends to be achieved:  activities are the means by which to accomplish those ends.  Purposes must be evaluated substantively.  Activities are assessed by determining the degree to which they actually are instrumental in achieving the organization’s goals.

55                               It is with this in mind that I consider the two propositions set forth by  Iacobucci J., at para. 159, as requirements for registration under s. 248(1)  of the ITA :

(1)  the purposes of the organization must be charitable, and must define the scope of the activities engaged in by the organization; and

(2)  all of the organization’s resources must be devoted to these activities unless the organization falls within the specific exemptions of s. 149.1(6.1) or (6.2).

With respect, I do not find my colleague’s formulation to be the most helpful as a framework for analysis.  I agree with the second requirement my colleague sets out.  I also agree that the purposes of the organization must be charitable.  However, I have reservations as to the second clause of his first requirement.  As Iacobucci J. himself observes, at para. 199, charitable activities cannot be defined other than by reference to the purposes they are to further.  I do not necessarily disagree with my colleague’s suggestion that the purposes of an organization must “define the scope of the activities engaged in by the organization”, but I find that formulation awkward.

56                               I consider the key questions to be:  (a) are the organization’s purposes charitable?  and (b) are the activities the organization engages in sufficiently related to its purposes to be considered to be furthering them?  I would, therefore, reformulate my colleague’s first proposition into two parts:  (a) an organization must be constituted exclusively for charitable purposes; and (b) its activities must be substantially connected to, and in furtherance of, those purposes.  So, when Iacobucci J. states, at para. 160, that “[i]n the end, while it is true that at least some of the Society’s purposes contemplate charitable activities, it cannot be said that they restrict the Society to charitable activities alone”, this strikes me as a roundabout way of contending that either (a) not all of the Society’s purposes are charitable; or (b) even if the Society’s purposes are charitable, not all of its activities are sufficiently connected to its purposes.

57                               One theory, which has obtained some currency in the Federal Court of Appeal, takes note of the fact that the ITA ’s references to “charitable purposes” are with regard to “charitable foundations”, whereas its references to “charitable activities” occur in the context of “charitable organizations”:  ITA , s. 149.1(1) .  In Toronto Volgograd Committee, supra, at p. 257, Marceau J.A. considered this distinction to be “fundamental” to the legislative scheme, because only charitable organizations may undertake activities.  See also Scarborough Community Legal Services, supra, at pp. 578-79.  Charitable foundations, by contrast, exist only to fund the activities of other persons; they do not undertake activities themselves.  It therefore followed, in Marceau J.A.’s view, that an evaluation of a charitable organization necessarily entailed a focus on the organization’s activities.

58                               Marceau J.A. was surely right to hold that the courts must scrutinize the activities of a would-be charitable organization, and that the courts should not confine their gaze to the applicant’s constituting document.  But that proposition does not displace my earlier observation that the courts must evaluate the charitable nature of activities by reference to their degree of relationship with the charitable purposes which they purport to advance.  Marceau J.A. himself recognized that the evaluation must be an objective one:  the intention of the organization in undertaking the activity cannot govern its status.  Marceau J.A. doubted that an organization’s activities could be “rationally classified on the sole basis of their more or less close proximity to the general purposes for which the group was organized”:  Scarborough Community Legal Services, supra, at p. 579 (emphasis added).  Nevertheless, though not the “sole” basis for classification, the degree of connection between the activity and the charitable purpose which it furthers must be the primary consideration in the determination as to whether an activity is charitable.

59                               Despite the language of the ITA , at least one prominent commentator strongly doubts whether such a thing as a “charitable activity” can be said to exist at all:  see M. C. Cullity, “The Myth of Charitable Activities” (1990), 10 Est. & Tr. J. 7.  That is, activities cannot be characterized as charitable or non-charitable in the abstract, but only by reference to the purposes which they further.  It is true that some activities have been deemed to be non-charitable in and of themselves, such as those which are illegal or contrary to public policy (Everywoman’s Health Centre Society, supra, at p. 67), or specifically prohibited by the ITA  (e.g., the political activities enumerated in s. 149.1(6.2)(c)), but they are not at issue in this appeal.

60                               The best way to conceptualize the issue, in my view, is to begin from the proposition, adverted to above, that a charitable organization must be constituted for exclusively charitable purposes.  To this end, a charitable organization may engage in activities that accomplish or further those charitable purposes.  For example, the ITA  specifically provides that a charitable organization may engage in political activities in furtherance of its exclusively charitable purposes, so long as those political activities are “ancillary and incidental” to those charitable purposes.  In effect, the ITA  deems such activities to be charitable activities.  However, as I discuss in more detail below, it is equally clear that a charitable organization may not pursue political purposes at all.  Similarly, a charitable organization may operate a commercial enterprise, so long as the enterprise serves as a means of accomplishing the purposes of the organization, rather than an end in itself.  See, e.g., Alberta Institute on Mental Retardation v. Canada, [1987] 3 F.C. 286 (C.A.), at p. 295, leave to appeal refused, [1988] 1 S.C.R. xiii.  Again, the key consideration is the nexus between the activity in question and the charitable purpose to be served.

61                               The point at which the pursuit of ancillary activities expands into an “end in itself” is a nice question, and has been the subject of considerable debate.  As the question is necessarily contextual, the courts have been reluctant to establish bright lines in this area, and have preferred a case-by-case approach: Re Public Trustee and Toronto Humane Society (1987), 60 O.R. (2d) 236 (H.C.), at p. 254.  Provisions in the ITA  provide a boundary between permissible ancillary activities and impermissible collateral purposes.  The first such provision is the threat of revocation contained in s. 149.1(2) for those charitable organizations which fail to satisfy the “disbursement quota” contained in s. 149.1(1).  That subsection requires a charitable organization to spend a specified proportion of donations for which it issued tax receipts to donors (and in the case of a charitable foundation, a specified percentage of the value of investment assets) on charitable activities, including gifts to other charities.  The second provision is the requirement contained in s. 149.1(6.2) that a charitable organization must devote “substantially all” of its resources to charitable activities in order to benefit from that provision’s deeming of certain ancillary political activities to be charitable activities.  Revenue Canada considers “substantially all” to mean 90 percent or more (see, e.g., Interpretation Bulletin IT‑486R (December 31, 1987)).

62                               Some question may also arise as to the degree of “sufficient connection” between the activity under scrutiny and the purpose it is meant to serve.  In Toronto Volgograd Committee, supra, at p. 259, Marceau J.A. held that activities must “be considered with respect to their immediate result and effect, not their possible eventual consequence”.  That is, there must be a direct, rather than an indirect, relationship between the activity and the purpose it serves.  That is the position taken by Iacobucci J. in the present appeal.  I agree.  However, I would be reluctant to interpret “direct” as “immediate”.  All that is required is that there be a coherent relationship between the activity and the purpose, such that the activity can be said to be furthering the purpose. 

63                               Thus, in my view, the proper approach is to begin by:  (a) identifying the primary purposes of the organization; and then (b) determining whether those purposes are charitable.  If one concludes that the purposes are not charitable, then the organization is not charitable, and the inquiry ends there.  However, if the organization’s primary purposes are charitable, we must then go a further step, and consider (c) whether the other purposes pursued by the organization are ancillary or incidental to its primary purposes; and (d) whether the activities engaged in by the organization are sufficiently related to its purposes to be considered to be furthering them.  If positive responses are made to these two latter inquiries, then the organization should be registered as a charitable organization.

E.  Application to the Present Appeal

64                               I come now to the application of the approach I have outlined above to the facts as set out in the record before us.  I wish to emphasize that the factual record in this appeal is very modest, as I suspect it is in the vast majority of cases involving an application for registration as a charitable organization under the ITA .  This is so for at least two reasons.  First, Revenue Canada’s decision as to whether to register an applicant as a registered charity is a “strictly administrative function” and is made without a hearing:  Scarborough Community Legal Services, supra, at p. 576.  Although Revenue Canada may request written submissions and further information from an applicant, it is under no obligation to do so.

65                               Second, s. 180(3)  of the ITA  specifically provides that appeals taken to the Federal Court of Appeal pursuant to s. 172(3)  of the ITA  “shall be heard and determined in a summary way”.  As the Federal Court of Appeal recently observed in Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202, at para. 1, the effect of s. 180(3) is that the Federal Court of Appeal “must therefore review the relevant questions of law and fact without the benefit of any findings of fact by a trial court and indeed without the benefit of any sworn evidence”.  The present appeal procedure has been cogently criticized elsewhere (see, e.g., D. W. Smith, “Tax appeal procedure for charities needs improving” (The National, vol. 12, No. 4, April 1985, at p. 21), and its failures are manifest in the present appeal.  It is essential, in my view, that those failures not be ascribed to the Society.

66                               It must also be remembered that an organization may seek registration as a charitable organization at any number of stages in its existence.  Many applications involve new organizations which, by definition, have no “track record” of which to speak.  In evaluating the putative charitable status of the purposes and activities of such an organization, Revenue Canada (and the courts) must necessarily rely almost entirely upon the constituting documents of the organization.  I do not for a moment wish to be taken as suggesting that Revenue Canada has no power to request further information or clarification from an applicant.  Obviously, Revenue Canada must receive enough information to ascertain whether the applicant’s purposes are prima facie charitable, and it should also be entitled to request information to determine whether the activities that the applicant engages in are merely subordinate to, and in direct furtherance of, its purposes.  The Federal Court of Appeal recently noted in Stop the Violence . . . Face the Music Society v. The Queen, 97 D.T.C. 5026, that “[s]ince the benefits attaching to charitable status are significant, the onus is on those seeking this status to clearly demonstrate that their activities are clearly focused on charitable objects in the legal sense”.  Nevertheless, I do emphasize that there are limits as to what Revenue Canada may reasonably expect an applicant to provide.  Indeed, it must not be forgotten, as my colleague recognizes, that for many applicants, the ability to engage in any activities at all may depend upon their ability to obtain registered charity status, and so be entitled to provide tax receipts to donors.

67                               In the present appeal, Revenue Canada appears to treat registration as a charitable organization as a once-and-for-all determination, and thus argues in favour of a restrictive approach to registration.  The view that once granted, an organization is a charitable organization forever, so that Revenue Canada adopt a restrictive gatekeeping function, strikes me as mistaken.  Charitable registration is always subject to revocation in the future, pursuant to ss. 149.1(2) , 149.1(4.1) , or s. 168  of the ITA , should Revenue Canada take the view that an organization has ceased to comply with applicable legal requirements.  Moreover, registered charities are obligated by s. 230(2)  of the ITA  to maintain books and records to enable Revenue Canada to determine whether there are any grounds for revocation of registration, and are required by s. 149.1(14) to provide Revenue Canada with an annual information return.  Because the consequences of deregistration are draconian (on which see s. 188(1)  of the ITA ), registered charities have obvious ongoing incentives to comply with the ITA ’s requirements.

68                               The Society’s purpose is set out in clause 2(a) of its constitution.  In examining this purpose, we must, as Scott J. indicated in Attorney General v. Ross, [1985] 3 All E.R. 334 (Ch. D.), at p. 342, read an organization’s constitution as a whole, and consider it in the context of its factual background.  Each of the other purposes set out in clauses 2(b), (c) and (e) are merely subsidiary to, and in direct furtherance of, this purpose.  The Society’s purpose, as clause 2(a) states, is “to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment”.  Thus, the Society proposes to engage in certain activities (the provision of educational forums, classes, workshops and seminars) for the benefit of a class (immigrant women) to achieve a goal (to enable the class of beneficiaries to obtain employment or self employment).  At this stage, we are concerned only with the purpose itself, but it should be evident that the purpose cannot be distinguished entirely from the activities which purport to further it.

69                               The Society submits, as it did before the Federal Court of Appeal, that its purpose may be placed within the second and fourth of the Pemsel categories, that is, being for the “advancement of education” as well as being for “other purposes beneficial to the community”.  I should indicate at this point that the Pemsel categories are not mutually exclusive.  A purpose may well fit into more than one category.  Equally, an organization may pursue a mixture of purposes, so long as each one of those purposes can be placed within at least one of the four Pemsel categories.  Thus, in the present appeal, the Society need succeed under only one of the Pemsel categories.

70                               Perhaps surprisingly, the Society did not put forward the argument that its purpose could be placed within the “relief of poverty” category of the Pemsel classification.  The Society did advance this argument in its initial letter to Revenue Canada of March 17, 1993, but it does not appear to have been pursued any further.  There is authority for the proposition that the relief of poverty among the unemployed is charitable, regardless of whether such relief is provided directly through financial relief, or indirectly “by training individuals so that they are able to earn a living or helping them to find work”:  E. Cairns, Charities:  Law and Practice (3rd ed. 1997), at p. 5.  Courts have in recent years outlined a more expansive definition of “relief of poverty”, which takes into account the movement away from simply providing direct financial assistance to the provision of services to enable the poor to become economically independent:  Inland Revenue Commissioners v. Oldham Training and Enterprise Council, [1996] B.T.C. 539 (Ch. D.), at pp. 553-54.  More might have been made of this.  However, as the argument was not pursued before us, I shall say no more about it here.

(1)  Advancement of Education

71                               A central issue in this appeal, then, is whether the Society’s purpose fits within the second category set out in Pemsel, namely, “the advancement of education”.  If not, we must consider whether that category should be expanded to include the Society’s purpose, or whether it might be placed within another category.

72                               As Iacobucci J. notes, the “advancement of education” head of the Pemsel classification has traditionally been given a relatively restrictive interpretation in Canada.  Stone J.A. stated in Positive Action Against Pornography, supra, at pp. 348‑49, that “advancement of education” is limited to “formal training of the mind [or] the improvement of a useful branch of human knowledge”, and thus on the facts of that case, the mere “presentation to the public of selected items of information and opinion” did not meet this test.  Stone J.A.’s approach was also followed in Briarpatch Inc. v. The Queen, 96 D.T.C. 6294 (F.C.A.), at p. 6295.  More recently, in Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424, at p. 5425, the Federal Court of Appeal reiterated its observation that “[t]he authorities are clear that ‘advancement of education’ receives a restricted meaning in the law of charity in Canada”.  As such, the court in that case upheld Revenue Canada’s refusal decision.

73                               Does the Society’s purpose fit within the advancement of education head?  Iacobucci J. accepts that the approach described above is an accurate reflection of the law, and concludes that Revenue Canada and the Federal Court of Appeal were thus correct in deciding that the Society did not meet the requirements for registration.  Iacobucci J. relies, at para. 161, upon a passage from Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096 (F.C.A.), in support of a narrow definition, and concludes that the classes, workshops and seminars which the Society proposes are not of this nature, because they have an “immediately utilitarian focus” (p. 6098).  I note that Iacobucci J.’s objection appears to be to the Society’s activities, rather than its purpose.  Nonetheless, Iacobucci J. goes on to hold that the traditional definition of “advancement of education” embodied in the existing law should be abandoned in favour of a broader, more modern approach.  Like Iacobucci J., I underscore that Maclean Hunter was not a case concerned with the law of charity, but was instead concerned with an exemption contained in the Excise Tax Act.  This was not acknowledged when Maclean Hunter’s definition of “education” was adopted in the Briarpatch case.  This observation does not, in itself, disqualify the definition of education adopted in Maclean Hunter from consideration, but it does highlight its limitations.

74                               I agree with my colleague’s proposal to adopt a more modern conception of “advancement of education”, although my own view is that the “more inclusive” approach he favours was already latent in the authorities.  For example, in Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232 (Ch. D.), a fund “solely for the purpose of helping educated women and girls to become self-supporting” was upheld as charitable.  Simonds J. considered that a gift for the purpose of educating women in such a manner as will be most conducive to their earning a living was charitable as being for the “advancement of education”.  He found himself, at p. 233, unable to distinguish “a gift for the advancement of education in general terms and a gift for the purpose of educating individuals in such manner as will be most conducive to their earning their living”.  Simonds J. held further that the fund could be considered charitable as being for the relief of poverty, because a gift to enable persons to become self-sufficient necessarily implies that they are “on the poverty side of the borderline”.  I do not believe that Central Employment Bureau can be meaningfully distinguished from the present appeal.  In both cases, the beneficiaries are to receive support to pursue training so as to become self-sufficient.  In Central Employment Bureau, the fund assisted “educated women” (emphasis added).  The Society assists immigrant women to obtain employment or self-employment:  many are educated women, although some are not.  I do not think anything turns on this.  As in Central Employment Bureau, the Society itself does not provide its beneficiaries with vocational training.  Rather, the Society’s purpose is to educate its beneficiaries in the more intangible, but no less important, art of putting their vocational skills into practice in the Canadian workplace.

75                               When reviewing the authorities which have defined the scope of the concept of “advancement of education”, one must be careful to appreciate the context in which each particular definition has been advanced.  So, for example, it has been a recurring theme of the jurisprudence in this area that the advancement of education must be clearly distinguished from the pursuit of political purposes:  Positive Action Against Pornography, supra, at pp. 348-49.  It is perhaps unsurprising that in making this distinction, Stone J.A. should emphasize that the mere “presentation to the public of selected items of information and opinion on the subject of pornography” could not be considered charitable.  In so doing, Stone J.A. stressed the formal and systematic nature of education.  Like Iacobucci J., I suspect that the true ground of decision was not that the mode of education selected by the organization in that case was too informal, but rather that the organization was seeking to advance a particular point of view, and gain adherents to it, instead of educating members of the public about a certain subject matter and allowing them to come to their own conclusions.

76                               These relatively narrow conceptions of “advancement of education”, though perhaps appropriate for the particular contexts in which they were adopted, seem to me inappropriate as general definitions for the law of charity.  The situation, as I see it, is not so much a need to engage in a wholesale redefinition of “education”, but instead to recognize that many existing definitions have erred on the side of caution due to the circumstances in which they were promulgated.  Like Iacobucci J., I believe that a truer picture of the proper scope to be given to education is contained in Inland Revenue Commissioners v. McMullen, [1981] A.C. 1 (H.L.), at p. 15.  There, Lord Hailsham emphasized that the definition of charity is not static, and that this was particularly the case with the “advancement of education” head of the Pemsel classification.  The scope of that category changes and evolves.  I am not persuaded that the existing approach to the scope of the “advancement of education” head of the Pemsel classification is warranted in the closing years of the twentieth century.  Nor, I should add, is that approach necessarily faithful to the authorities.

77                               I agree with the definition of education proposed by Iacobucci J., at para. 169:

Thus, so long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education.

78                               I also agree with my colleague’s concern that in order to be educational under this head, an organization must pursue “actual teaching” or a “learning component” (para. 171).  However, the Court must maintain as clear a boundary as possible between charitable and non-charitable purposes.  One reason why the authorities have attempted to circumscribe narrowly the scope of the “advancement of education” head is out of concern that if very informal educational activities were to be considered charitable, it might prove difficult to prevent the relentless expansion of the scope of the category on any principled basis.  The more that purposes stray from traditional conceptions of education, the more difficult it will be to engage in the task of distinguishing charitable from non-charitable purposes.  I share Lord Hailsham’s concern (expressed in McMullen, supra, at p. 17) that the concept of education is not amenable to “indefinite extension”.  Whatever the outer boundaries of the concept, however, they are not traversed on the facts of the present appeal.

79                               Iacobucci J.’s position is that although the Society’s purpose is charitable under the second head of the Pemsel scheme (para. 173), not all of the Society’s activities are charitable (paras. 195 and 204).  I fully agree that the “advancement of education” head encompasses the Society’s purpose.  Accordingly, it is my view that the Society is prima facie charitable because its purpose is charitable under a head of the Pemsel classification.  With respect, I cannot accept Iacobucci J.’s contention that the Society is engaging in non-charitable activities, but I defer discussion of that issue until later in these reasons.  However, before doing so, I think it useful to consider whether the Society’s purpose may also be placed under another head of the Pemsel categorization, namely, the residual fourth head. 

(2)  Other Purposes Beneficial to the Community

80                               Thus far, I have concluded that the Society’s purpose fits within the “advancement of education” category.  I must now consider the Society’s contention that its purpose fits within the fourth category of Lord Macnaghten’s test in Pemsel, namely, “trusts for other purposes beneficial to the community, not falling under any of the preceding heads”.  Iacobucci J. argues that although the Society’s purpose is charitable under the “advancement of education” head, not all of its activities are sufficiently connected to that purpose for them to be considered “charitable activities”.  He also maintains that although those activities might be sufficiently related to the purpose of assisting immigrants to obtain employment, that purpose is not charitable, and so again, those activities are not charitable. 

81                               Regrettably, in my view, the Society expended little effort on locating authority to support its argument that its purpose qualifies as charitable under the fourth head of the Pemsel scheme.  Instead, the Society concentrated its efforts on urging this Court to engage in a wholesale revision of the common law definition of charity.  This is most unfortunate.  No such revision is necessary, in my view, because the Society’s purpose can be placed within the existing Pemsel categories.  The Society was, consequently, too quick to ask this Court to make new law and insufficiently attentive to the possibility of succeeding under the existing regime.  Before asking this Court to modify the common law, litigants should demonstrate that they have exhausted the possibilities of the existing law.  In the law of charity, those possibilities are considerable.

82                               The intervener Canadian Centre for Philanthropy showed the way forward by bringing to our attention that assisting the settlement of migrants, immigrants and refugees, and their integration into national life, is a charitable purpose already recognized under the fourth head of the Pemsel classification.  In my view, the Society’s purpose is subsumed within this subcategory.  Although my colleague Iacobucci J. is not persuaded, there appears to me to be considerable authority in support of this position.

83                               An early Australian decision, In re Wallace, [1908] V.L.R. 636 (S.C.), upheld the validity of a trust to pay passage money to immigrants from an English town to Melbourne under the relief of poverty head.  However, Hood J. also ventured the proposition, at p. 640, that in view of Australian immigration legislation, “a bequest in aid of immigration might probably be for the direct benefit of this community”, although we would now shrink from endorsing his view that “such a bequest would ... have to be much more guarded than the present one is in point of both mental and physical qualification of the immigrants”.  I find my colleague’s explanation of Hood J.’s obiter dictum to be unpersuasive.  Hood J.’s suggestion, at p. 640, that “there are divergent opinions on the subject” as to whether assistance to immigrants is a charitable purpose was merely an acknowledgement that others might disagree with his decision.  My colleague rightly emphasizes that the existence of a public benefit is a necessary but not sufficient condition to finding a charitable purpose, but nothing in Wallace, or indeed, in the manner in which I rely on that case here, denies that well-established proposition.

84                               I agree with my colleague that the mere existence of legislation in a field is not conclusive evidence that an organization pursuing a purpose in accordance with that legislation is pursuing a public benefit as that latter term is understood in the law of charity.  However, I see no evidence that Hood J. relied upon the mere existence of Australian immigration legislation as conclusive on the issue of public benefit.  Rather, Hood J. viewed the immigration laws as persuasive, though not conclusive, evidence favouring the recognition of assistance to immigrants as a charitable purpose.  In so doing, he treated the existence of legislation in the same field as a relevant, though not a decisive, consideration.  I see no problem with that: it is precisely what the Federal Court of Appeal did in Everywoman’s Health Centre Society, supra, at pp. 67-68.

85                               In Re Stone (1970), 91 W.N. (N.S.W.) 704 (S.C.), a trust to assist migration was held to be charitable.  Helsham J. observed, at p. 718, that “[a] trust to further the purposes of a body whose objects and activities are the encouragement and settlement of migrants generally in pursuance of a policy of the community and in co-operation with government instrumentalities would in this country be given the stamp of legal charity”.  In making this statement, Helsham J. relied (as Iacobucci J. notes) upon Verge v. Somerville, supra, where the resettlement of demobilized members of the armed forces who had returned home from abroad — or more specifically, “restoring them to their native land and there giving them a fresh start in life” — was upheld as charitable.  That case concerned citizens in the armed forces, but an obvious analogy may be made with immigrants.  In each case, individuals need assistance in integrating into national life.  Iacobucci J. draws a much narrower interpretation of the holding in Stone than the passage just cited would warrant.  He does not accept that the passage applies to immigration in general because there is no religious dimension to immigration in general, nor are immigrants returning to their native country.  I am not convinced that Stone can be distinguished on this basis.  Certainly, Helsham J. did not predicate his decision to uphold the trust at issue in Stone upon any of three narrow considerations invoked by Iacobucci J.

86                               In Verge v. Somerville, the Judicial Committee of the Privy Council did not predicate its decision upon the unique hardships endured by soldiers.  In any event, Iacobucci J.’s suggestion ignores the reality that many immigrants have themselves suffered serious hardship.  Let me pursue the analogy between returned soldiers and immigrants directly. Soldiers return home after a lengthy period of time spent abroad.  They may require assistance in integrating back into national life: employment and training opportunities, counselling, support groups, and the like. The same is true with many immigrants.  In fact, soldiers may have an easier time of it, as they are unlikely to face language or cultural barriers, and are also likely to have friends and family already in Canada to assist them in the task of reintegration.  Nonetheless, the life that the soldier left behind before going abroad may well be gone forever, and he or she may require assistance to making the transition to a new life upon his or her return.

87                               Similarly, the relief and assistance of refugees was recognized as a charitable purpose in In re Cohen, [1954] N.Z.L.R. 1097 (S.C.), where a bequest to a society whose principal objects were to assist Jewish refugees to establish themselves in New Zealand was upheld under both the first and fourth heads of the Pemsel classification.  Again, in Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757 (Ch. D.), the assistance of refugees was recognized as a charitable purpose.  Obviously, not all immigrants are refugees, but the two groups often share the same needs.  Distinctions may, of course, be drawn between immigrants and refugees.  The process of analogical reasoning, however, requires us to focus upon whether there are any relevant differences between the two.  I can see none that are germane to the present discussion.

88                               In Cohen, Hay J. expressly acknowledged that although no previous case had determined that assistance to refugees was recognized as a charitable purpose, an analogy could be made with the demobilized soldiers under consideration in Verge v. Somerville.  Hay J. appears to have premised his analogy upon the proposition that both refugees and soldiers are uprooted and are in need of being settled.  This is also an apt description of the circumstances of many immigrants, who may have come to Canada to leave economic and social deprivation behind them.  In any case, the reason that an individual has left his or her home to come to Canada may have little to do with the difficulties that the individual faces here.  Some refugees, and some immigrants, may have little difficulty integrating into the job market.  But many immigrants and refugees do not find the transition to their new home to be a seamless one.  They may need assistance to meet the challenges of an unfamiliar society.

89                               Canadian authority recognizes assisting immigrants to obtain employment as a charitable purpose.  In Re Fitzgibbon (1916), 27 O.W.R. 207 (H.C.), a bequest to an organization known as the “Women’s Welcome Hostel” was upheld.  The bequest created an annual prize to be given to a girl who had spent time at the hostel, which was an institution for the assistance of immigrant girls, and who had subsequently joined and remained with a single employer for three years or more.  Middleton J. observed at p. 210 that “[t]his institution is undoubtedly a charitable institution, for the laudable purpose of aiding and assisting emigrant girls coming to Canada with a view of obtaining employment”.  Because the object of the bequest was to further the aims of the institution, which was itself charitable, it was upheld.  I might add that no suggestion was made in the case that this purpose fit under the relief of poverty head of the Pemsel classification, and I do not read the decision as not following the Pemsel approach.  Middleton J. did rely on Re Mariette, [1915] 2 Ch. 284, which admittedly had an educational dimension.  However, the charitable status of the hostel was not directly at issue in Fitzgibbon.  Mariette was cited only in support of the proposition that a gift to a charitable institution is itself a charitable gift, even if the gift might not be valid if given to a non-charitable organization.  It is uncontroversial that the institution at issue in Fitzgibbon had an educational element, very much like Society under consideration in this appeal, but that does not refute Middleton J.’s characterization of the institution’s purpose.

90                               Directly on point, the Internal Revenue Service in the United States has ruled (U.S. Rev. Rul. 76-205 in Internal Revenue Cumulative Bulletin 1976-1, at p. 154) that a non-profit organization whose objects are to assist immigrants to that country “in overcoming social, cultural and economic problems by either personal counseling or referral to the appropriate public or private agencies” is charitable under the applicable section (s. 501(c)(3)) of the Internal Revenue Code.  The ruling held that:

The organization was formed to aid immigrants to the United States in overcoming social, cultural, and economic problems by either personal counseling or referral to the appropriate public or private agencies.  The organization has found that immigrants may be subject to discrimination and prejudice, often arrive without friends or relatives, possess a limited knowledge of English, and lack an awareness of employment opportunities.  To help overcome these handicaps, the organization offers instruction in English by its multilingual staff, job counseling, and social and recreational functions that permit a mingling of immigrants with each other and with United States citizens. . . .

                                                                   . . .

By counseling immigrants, the organization is instructing the public on subjects useful to the individual and beneficial to the community, and is, therefore, furthering an educational purpose.  Personal counseling has been recognized as a valid method of instruction for educational organizations.... In addition, by offering instruction in English, by assisting immigrants in finding helpful agencies, by aiding immigrants to attain full citizenship, and by providing opportunities for immigrants to meet and discuss problems with each other and United States citizens, the organization is also eliminating prejudice and discrimination.  [Citation omitted.]

91                               The organization was upheld as pursuing a mixture of purposes, some of which were grounded in the advancement of education head, and some of which were grounded in the elimination of discrimination and prejudice.  Yet it cannot be denied that the purpose of the organization itself was to aid immigrants in integrating into national life, and it is that purpose to which I draw the analogy here.  I fully agree that not all of the difficulties faced by immigrant women in obtaining employment stem from prejudice and discrimination: but it is undoubted that some of them do.  Indeed, the greatest barrier to the integration of immigrant and visible minority women into the workforce is probably not racial or other animus: rather, it is the unintended exclusionary effects of facially neutral practices.  My colleague recognizes that “making contacts and obtaining information pose difficulties with respect to gaining employment” (para. 187).  Such difficulties, and others, are inherent in moving to a new country.  That is why assisting immigrants in overcoming those particular difficulties is charitable.

92                               Likewise, the Charity Commissioners for England and Wales have registered an organization (Ethnic Minority Training and Employment Project, Reg. No. 1050917, registered November 22, 1995) whose objects are

to assist refugees, asylum seekers, migrants and others who recently arrived in the United Kingdom, in particular those from the Horn of Africa, who through their social and economic circumstances are in need and unable to further their education or gain employment, and who may be at risk or [sic]  permanent exclusion from the labour market; to educate and train such refugees, asylum seekers, migrants and others by providing information, guidance, learning opportunities, and work experience which will enable them to acquire and develop vocational skills and secure employment, or further their education.

93                               My colleague suggests that that organization’s purpose is better conceived as being for the relief of poverty.  I concede that there is a certain degree of overlap: but for assistance in obtaining employment, it would not be surprising if many immigrants fell into poverty, or remained there, as the case may be.  However, I see no reason why assisting immigrant women to obtain employment could be considered a charitable purpose only to extent that it relieves poverty.  Poverty, as my colleague rightly suggests, is a relative term.  In any case, the suggestion that a charitable purpose must be related to the relief of poverty was rejected in Pemsel.  The reality is that immigrants may face a number of obstacles to their integration into Canadian society, social, vocational, cultural, linguistic, or economic.  It would be futile to focus on one obstacle to the exclusion of the others.  Like the English organization, the Society provides assistance, guidance, and learning opportunities.  It assists immigrants in developing and acquiring vocational skills, so that they may obtain employment.

94                               My colleague argues that none of the cases I discuss above support my finding that assisting immigrant women to integrate into Canadian society by helping them to obtain employment is a charitable purpose under the fourth head of the Pemsel classification and rejects the suggestion that that purpose is charitable and may  be analogized to other recognized charitable purposes.  In each case, he either denies its authority or would interpret it very narrowly.  My colleague implicitly suggests that the approach I adopt to the evolution of the law of charity represents “a fundamental turning in direction” (para. 179).  I respectfully disagree.  My approach, as I have endeavoured to demonstrate, is rooted in the existing jurisprudence.  It is consonant with the broader principles I have set out, and indeed, with the analogical approach which I share with my colleague, “with an eye to society’s current social, moral, and economic context” (para. 159).

95                               The unifying theme to these cases, in my view, is the recognition that immigrants are often in special need of assistance in their efforts to integrate into their new home.  Lack of familiarity with the social customs, language, economy, job market, educational system, and other aspects of daily life that existing inhabitants of Canada take for granted may seriously impede the ability of immigrants to this country to make a full contribution to our national life.  In addition, immigrants may face discriminatory practices which too often flow from ethnic, language, and cultural differences.  An organization, such as the Society, which assists immigrants through this difficult transition is directed, in my view, towards a charitable purpose.  Clearly, a direct benefit redounds to the individuals receiving assistance from the Society.  Yet the nation as a whole gains from the integration of those individuals into its fabric.  That is the public benefit at issue here.  I have no hesitation in concluding that the Society’s purpose is charitable under the second or fourth heads of the Pemsel classification.

96                               Accordingly, in my view, this appeal does not require us to consider the applicability of the Native Communications Society case.  The present appeal may be disposed of without having to determine whether or not immigrant women are in any way analogous to native people, because the Society’s purpose fits within a recognized subcategory of the fourth head of the Pemsel classification.

97                               Immigrants make up a broad class of people.  Some immigrants, my colleague suggests, will have gained admission to this country on the basis of their education, experience, training, and skills.  Their applications for entry will have been evaluated, in large measure, on the basis of their perceived ability to integrate into Canadian society.  Presumably, immigrants in this category will have little or no need of assistance in integration into Canadian society.  Given the existence of this category of immigrants, my colleague states that an organization that provides assistance to immigrants in general could not be exclusively charitable.  With respect, I disagree.  Reduced to its essentials, the contention is that an organization which seeks to assist a class of people cannot be charitable where some members of that class do not require the assistance that the organization seeks to provide.  With respect, the proposition is unsustainable.  Few charities could meet such a stringent test.  Some immigrants will have no need for the Society’s services: some immigrants will have need of some of the Society’s services, but not others.  Yet that recognition provides no basis upon which to argue that the Society is not charitable.  Those who have no need of the Society’s services will presumably not seek them out.

F.  Are the Society’s Activities Sufficiently Related to, and in Furtherance of, its  Purpose?

98                               Having established that the Society’s purpose is charitable under either the second or the fourth head of the Pemsel classification, we must next consider whether the Society’s activities are sufficiently connected to its purpose so as to be in furtherance of it.  There is no magic to this process:  it is a simple matter of logical reasoning combined with an appreciation of context.

99                               My colleague objects (at para. 205) to several of the Society’s activities, including its job skills directory; networking; liaising for accreditation of foreign credentials; soliciting job opportunities; and offering referral services.  He simply asserts that these activities “cannot be said to be carried on in furtherance of, or incidental or ancillary to, any valid charitable purpose”.  With respect, surely this begs the question.  It may be that some of these activities are not sufficiently connected to the “advancement of education”, but I need not take a position on that question in light of my finding that assisting immigrants so that they may obtain employment or self-employment, and thus become fully integrated into national life, is a valid charitable purpose under the fourth head of the Pemsel classification.  I do not see how these activities can be viewed as other than directly connected to achieving that purpose.

100                           I find it entirely unremarkable that an organization seeking to assist immigrant women in obtaining employment would produce a job skills directory or solicit employment opportunities for them.  The counselling provided by the Society assists immigrant women in learning the social conventions and practical realities of a job interview, résumé preparation, applying for employment, and the like.  Some of the women who immigrate to Canada already possess academic degrees, professional credentials, or vocational certification.  Many of these women experience considerable difficulty in having those credentials recognized or accepted in Canada.  The Society’s role, as I understand it, is twofold.  First, it assists the women themselves in building on their existing qualifications to obtain recognition or certification in Canada, and where necessary, provides them with information on how to upgrade their qualifications.  Second, the Society meets with and conducts workshops for Canadian certification bodies, such as teaching and nursing associations, in an attempt to facilitate the efforts of the women the Society serves, and to dispel ignorance surrounding foreign accreditation.  Finally, the Society refers immigrant women to ESL classes, and advises Employment and Immigration Canada where there is a need for such classes.

101                           Each of these activities is directly related to the Society’s charitable purpose, and thus, in my judgment, each of them constitutes a “charitable activity” under the ITA .  I am not persuaded by my colleague’s rigid distinction between “teaching women skills they require to obtain employment in Canada” (in his view, charitable) and “publishing a directory and otherwise marketing those skills to prospective employers” (in his view, non-charitable) (para. 205).  Why does publishing a job skills directory, and attempting to make prospective employers aware of the skills possessed by its beneficiaries, not directly further the Society’s goal of assisting immigrant women to obtain employment?  I should have thought that these activities are directly related to, and in furtherance of, the Society’s purpose.  Surely, a proper determination of whether the Society’s activities are sufficiently connected to its purpose must take into account the unique needs and problems faced by immigrant and visible minority women in obtaining employment.  Whether or not such activities would further a charitable purpose in the case of a different group of beneficiaries is a distinct question which need not detain us here.  Activities must be evaluated in the light of the purposes they are supposed to further.  When this is done on the facts of this appeal, there is no doubt in my mind that the Society’s activities are charitable.  Consequently, I do not share Iacobucci J.’s view that the Society’s activities do not further its purpose.

G.  Has the Society Impermissibly Limited its Class of Beneficiaries?

102                           Clause 2(a) of the Society’s constitution designates “immigrant women” as the beneficiaries of its purpose and activities.  Revenue Canada argued in written (though not in oral) argument that the Society’s activities do not benefit a “sufficient section of the public” to satisfy the public benefit requirement of the fourth head of the Pemsel classification.  Revenue Canada concedes that “a restriction in the class of beneficiaries will not prevent a group from obtaining charitable status where the charitable objects and activities are interdependent with the class of beneficiaries”, but contends that the Society does not meet this requirement of interdependence.

103                           It is well established under the fourth head of the Pemsel classification that to qualify as charitable, the class of persons eligible to benefit must be the community as a whole, or an appreciably important class of the community.  The House of Lords indicated in Baddeley, supra, at p. 592, that a purpose falling under the fourth head could not limit its beneficiaries by reference to creed.  Revenue Canada raised the spectre that the Society has impermissibly limited the scope of its class of beneficiaries.  Like my colleague, I find this argument unconvincing.  The focus of the Society’s efforts is, admittedly, the assistance of visible minority and immigrant women in the Vancouver area.  Indeed, as I held above, it is the Society’s focus on immigrant women which renders its purpose charitable.  One must not, as Lord Somervell of Harrow cautioned in Baddeley, supra, at p. 615, consider the class apart from the particular nature of the charitable purpose.  Without deciding that “interdependence” is actually a legal requirement, it is easily satisfied on the facts of this appeal. 

104                           Despite this primary focus on immigrant women, there is no indication, however, that in practice, the Society’s beneficiaries are exclusively women or members of minority groups.  On the contrary, the evidence before us suggests that the Society’s services are open to all in need of them, so that men have apparently attended some of its programs.  We need not address this issue on the facts of the present appeal, although I note that there is at least some authority in support of the view that an organization seeking to aid a disadvantaged group may draw distinctions on the basis of certain personal characteristics:  Canada Trust Co. v. Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321 (Ont. C.A.), at pp. 352‑53 (Tarnopolsky J.A., concurring).  That question may be left for another day.

H.  Is the Society’s Purpose Too Political to Be Charitable?

105                           Among Revenue Canada’s grounds for refusing to register the Society as a charitable organization under the ITA  was its view that the Society’s purpose was political in nature.  Revenue Canada contended in its letter refusing registration to the Society that object 2(b) of the Society was “not acceptable” and explained that “this is a political purpose and an organization created for political purposes, whether in whole or in part, cannot be charitable”.  In my view, this objection is not germane to the present appeal.  It is evident to me, as to my colleague, that the Society’s purpose is not political.  I would, however, address the issue in a slightly different fashion than my colleague has done.

106                           Object 2(b) of the Society’s constitution provides that one of the Society’s purposes is

to carry on political activities provided such activities are incidental and ancillary to the above purposes and provided such activities do not include direct or indirect support of, or opposition to, any political party or candidate for public office;

The Society contends that any political purposes or activities it may have or engage in are purely ancillary and incidental to its main objects, as required by s. 149.1(6.2)  of the ITA .  Indeed, the extract from the Society’s constitution just cited closely traces the language of that subsection of the ITA : 

(6.2)  For the purposes of the definition “charitable organization” in subsection (1), where an organization devotes substantially all of its resources to charitable activities carried on by it and

(a) it devotes part of its resources to political activities,

(b) those political activities are ancillary and incidental to its charitable activities, and

(c) those political activities do not include the direct or indirect support of, or opposition to, any political party or candidate for public office,

the organization shall be considered to be devoting that part of its resources to charitable activities carried on by it.

107                           The political purposes doctrine has a long history in Canadian law, although its basis is a matter of some controversy.  The leading Canadian cases on the doctrine are N.D.G. Neighbourhood Association v. Revenue Canada, Taxation Department, 88 D.T.C. 6279 (F.C.A.); Positive Action Against Pornography,  supra; and Toronto Volgograd Committee, supra.  Very simply, the doctrine provides that political purposes are not charitable purposes.  Accordingly, the presence of political objects negates an organization’s claim to benefit the community as a charity.  Though not without its difficulties, the political purposes doctrine has no application on the facts of this appeal.  Yet that does not exhaust the matter, because at issue in this appeal are political activities, not purposes.  The rule that a charity cannot be established for political purposes does not mean that the charity cannot engage in political activities in furtherance of those purposes.  A charity may engage in political activities, so long as they are “ancillary and incidental” to its charitable purposes.  This is confirmed by both the plain language of s. 149.1(6.2)  of the ITA , and by the case law:  see Re Public Trustee and Toronto Humane Society, supra, at pp. 254‑55.

108                           In the present appeal, neither Revenue Canada nor the Society made the distinction between purposes and activities entirely clear.  The Society’s constitution describes the pursuit of political activities as a “purpose” of the Society.  Revenue Canada takes a similar line, by contending that engaging in political activities is a purpose of the Society.  However, there is simply no evidence that the proposed political activities of the Society are anything other than “ancillary and incidental” to its purpose, which, as I have stated, are charitable.  It is obvious from a plain reading of purpose 2(b) that the Society does not intend to pursue political purposes:  its intention in drafting that paragraph was merely to authorize itself to engage in permissible political activities.  That, in my view, is exactly the legal effect it has achieved.  That said, clause 2(b) does not authorize the Society to pursue political purposes, but merely enables it to engage in political activities in furtherance of its charitable purpose, provided that such political activities are incidental and ancillary to that charitable purpose.  In my view, that does not lead the Society to run afoul of the ITA  or the political purposes doctrine.

109                           In Guaranty Trust, supra, at pp. 148‑49, Ritchie J. confirmed that the mere enumeration of a purpose in the constituting document of an organization does not transform it into an end in itself.  Rather, taken in context, it may be only a “means to the fulfilment” by which the organization’s primary purposes are to be achieved.  So it is in the present appeal.  The application of the political purposes doctrine simply does not arise.

I.  Is the Society’s Purpose Too Vague or Uncertain to Be Charitable?

110                           One of Revenue Canada’s grounds for refusing to register the Society, a ground subsequently upheld by the Federal Court of Appeal, was that the Society’s purpose was too vague or uncertain to qualify as charitable in law.  My colleague Iacobucci J. takes the same view, and ultimately decides the present appeal on a particular application of this ground.  I cannot agree.

111                           An allegation of vagueness often arises with regard to organizations that seek to fit their purposes or activities within the fourth head of the Pemsel test.  The Federal Court of Appeal recently emphasized, in Stop the Violence . . . Face the Music Society, supra, at p. 5026, that an applicant for charitable status must define its purposes (“objects”) with a sufficient degree of precision “to enable the Minister to be satisfied that the organization will be engaged in and will direct all of its resources to charitable activities”.  In most cases, then, an allegation of vagueness stems from a concern that if the purposes of the organization are not specified with sufficient clarity, the charitable organization could make expenditures on non-charitable purposes.  A charity’s purposes, as we have seen, must be exclusively charitable.  A second, and related, reason underlying the requirement that a charitable organization’s purposes not be too vague or uncertain was clarified by Slade L.J. in Re Koeppler Will Trusts, [1986] Ch. 423 (C.A.), at p. 432.  The courts exercise an equitable supervisory role over charities, and consequently, must be able to control the application of a charity’s assets and its activities by reference to its purposes.  However, this task would be impossible if the charity’s purposes were too vague or uncertain:  Baddeley, supra, at p. 586 (Viscount Simonds) and pp. 598‑99 (Lord Reid).

112                           Turning to the present appeal, is the Society’s purpose too vague or uncertain to permit it to be registered as a charitable organization?  In my view it is not.  The purposes of an organization will almost invariably be phrased in broad, general terms.  That cannot, of itself, render those words “ambiguous”, as Lord Radcliffe indicated in Institution of Mechanical Engineers v. Cane, [1961] A.C. 696 (H.L.), at pp. 718‑19.  One should not aspire to an unrealistic degree of precision in such matters.  In Native Communications Society, supra, at p. 484, Stone J.A. observed of the applicant’s purposes that “[i]t is true that they are not drawn with exceptional precision but it is of the nature of corporate objects clauses to be rather broadly phrased”.  Revenue Canada has long encouraged organizations seeking charitable status to specify their purposes and activities with as much precision as possible.  Yet at the same time, the continuing application of the ultra vires doctrine to non-business corporations, which Iacobucci J. acknowledged for this Court in Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388, at p. 402, impels non-profit organizations such as the Society to draft their objects clauses as broadly as possible to avoid incurring liability for ultra vires acts.  The Society, incorporated as it is under the B.C. Society Act (along with other organizations incorporated under analogous provincial legislation, or the Canada Corporations Act , R.S.C. 1970, c. C-32 , Part II), is thus placed in an extremely awkward position.

113                           Vagueness and uncertainty are, to a certain degree, in the eye of the beholder.  Nonetheless, some objective criteria may be identified.  Useful in this regard is a comparison with D’Aguiar, supra, a leading decision of the Privy Council on appeal from Guyana.  At issue was the tax status of a payment made to an organization known as “The Citizens’ Advice and Aid Service”.  The Service’s purposes were extremely broad, as is clear from its constitution:

2.  The aims, functions and objects of the Service are:

(a)  To provide advice, aid and services on or relating to medical, dental, optical, health, legal, matrimonial, domestic or other social matters;

(b)  To establish and operate a fund for the assistance of those in need on such terms and conditions as the Central Committee may determine;

(c)  To encourage thrift and provide savings facilities;

(d)  To make available to the individual in confidence accurate information and skilled advice on personal problems of daily life;

(e)  To establish, organize, sponsor or otherwise promote adult education, and technical training of every kind including the explanation of legislation and Government notices and publications;

(f)  To help the citizen to benefit from and to use wisely the services provided for him by the State;

(g)  In general to advise the citizen in the many complexities which may beset him; and

(h)  Generally to do anything to assist the citizen, whether financial or otherwise who makes inquiry of the Service and in any way as may be determined by the Central Committee.

3.  The Service shall be independent and free from any political or other bias.  It shall endeavour to give advice, instruction and aid to any member of the community who seeks, or applies for it.

114                           Lord Wilberforce observed that the Service possessed no single dominant purpose which could be classified as charitable in law, and to which the other objects could be viewed as subsidiary or ancillary.  He also held, at p. 33, that the overall object of the Service, the provision of advice to citizens, was “too indefinite and vague to support a finding of charitable purpose”.  However, as the purposes set out in paragraphs (a), (d) and (g) of clause 2 of the Service’s constitution were not charitable, the appeal was dismissed on the ground that the Service’s purposes were not exclusively charitable.

115                           I consider D’Aguiar to be easily distinguishable from the facts of the present appeal.  In D’Aguiar, paragraphs (a), (d) and (g) of clause 2 outline purposes that are phrased so broadly that they could encompass almost anything.  No such problem bedevils the purpose of the Society in the present appeal.  As I understand it, Iacobucci J.’s position (though he might not phrase it this way himself) is that although the Society’s purpose is charitable, the Society’s activities are too vague.  Thus, as I see it, the fundamental objection raised by Iacobucci J. is not that the Society’s purpose is vague, but rather that it is unclear how its activities relate to its purpose.  That is a very different objection than that which rendered the organization at issue in D’Aguiar non-charitable.  Critically, D’Aguiar says nothing whatsoever about the vagueness (or put another way, the lack of “connectedness”) of activities.

116                           Ultimately, the basis upon which Iacobucci J. dismisses the Society’s appeal on this ground is that it has improperly included two words in a paragraph of its purposes section.  My colleague contends that by inserting the words “or conducive” into clause 2(e), the Society places itself outside the scope of legal charity.  He says that those two words render the language of (e) so broad as to make it “difficult to discern whether it is a means of fulfilment or an end in itself” (para. 193).  I find this argument unconvincing.  Some light is shed on the matter by A. B. C. Drache, Canadian Taxation of Charities and Donations (loose-leaf), at pp. 1‑26 to 1‑27, where the author suggests, on the basis of an anecdotal account, that Revenue Canada has recently taken the position that the term “conducive” is too broad.  If that is so, I must say that the legal authority for Revenue Canada’s position is obscure.  I also note that this particular objection was not raised in either oral or written argument before us.

117                           That said, I am not persuaded that the argument can succeed even on its merits.  To see why, it is useful to reproduce clause 2(e) in full:

e.    To provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.

118                           The plain language of the clause indicates the obvious intent of the drafter to enable the Society to carry out certain activities in furtherance of its purpose.  The clause merely provides, as the Society argues, a mechanism by which the Society’s main purpose may be achieved.  It is self-evident that, despite the status of clause 2(e) as a “purpose” clause, to engage in the activities set out in clause 2(e) is not to pursue an end or purpose in itself.  Clause 2(e) merely specifies a means “to the attainment of the above stated objects”.  My colleague takes the position that “incidental” and “conducive” have very different meanings, and that while the former implies a subordinate relationship (“having a minor role in relation to”), the latter does not (“contributing or helping [towards]”)  (Concise Oxford Dictionary (9th ed. 1995), at pp. 686 and 278).  Thus, my colleague argues, at para. 193, that “while doing things that are “incidental” to the attainment of charitable purposes might safely be treated as a means of fulfilment of the purposes, the same cannot be said of doing things that are merely “conducive” to those ends”.  On this view, an activity might be conducive to the Society’s main purpose without necessarily being incidental to it.

119                           Although I acknowledge the distinction drawn by my colleague, I do not view it as a meaningful one on the facts of the present appeal.  First, the argument simply assumes that the “or” is disjunctive rather than conjunctive.  This Court demonstrated the futility of such an argument the last time it heard an appeal on the law of charity.  In Jones v. T. Eaton Co., supra, at p. 641, it was contended that the words “or deserving” in the phrase “needy or deserving” were “so broad and indefinite that they deprive the bequest of its charitable characteristic”.  The argument did not fare well.  The Court interpreted the word “deserving” in its proper context.  The result was that the trust at issue was held to be charitable, even if the word “deserving” might, interpreted abstractly, be amenable to an alternative gloss.

120                           Second, my colleague’s argument is answered by this Court’s decision in Guaranty Trust, supra.  In that case, one of the purposes of the association at issue, as set out in its Letters Patent, was (at p. 141):

(g) To do all such other things as are incidental or conducive to the attainment of the above objects.  [Emphasis added.]

This language is identical to (and if anything, the full clause itself is broader than) the language contained in clause 2(e) in the present appeal.  Yet the phrase “incidental or conducive” did not arouse the attention of either Ritchie J., writing for the majority, or Cartwright J. in dissent, nor indeed, of the Exchequer Court below ([1965] 2 Ex. C.R. 69).  One can only speculate as to the reason for the Court’s silence, but I am left to conclude that this Court did not address that language in Guaranty Trust for the simple reason that the Court considered it to raise no concerns.

121                           Again, though notionally a purpose clause, it must be recalled that what is contemplated by clause 2(e) is the ability to conduct activities, not purposes.  As I indicated above, the precise boundary between an activity and a purpose is rather protean, and so one should not expect a bright line to separate them.  The key observation is that an organization whose purpose is charitable does not surrender that status merely because it engages in some activities which are not in themselves charitable, so long as those activities are subordinate to, and in furtherance of, the exclusively charitable purpose of the organization.  That is the case here.  Accordingly, I am not persuaded by my colleague’s argument to the contrary.

J.  Should the Common Law Definition of Charity Be Revised?

122                           The Society and the interveners invited this Court to modify the existing categorization of charitable purposes set out in Pemsel in favour of a broader test.  Given my view that the existing Pemsel classification scheme is sufficiently flexible to comprehend the Society’s claim, and my view that the Society’s purpose is charitable within that framework, we need not engage in such an exercise on the facts of this appeal.  This is not to suggest that the courts are precluded from recognizing new charitable purposes, or indeed, from revisiting the Pemsel classification itself should an appropriate case come before us.  The task of modernizing the definition of charity has always fallen to the courts.  There is no indication that Parliament has expressed dissatisfaction with this state of affairs, and it is plain that had Parliament wanted to develop a statutory definition of charity, it could have done so.  It has not.  This leads me to the conclusion that Parliament continues to favour judicial development of the law of charity.  Nevertheless, on the facts of the present appeal, no wholesale revision of the law of charity is required.

123                           For similar reasons, we need not take a position on the argument advanced by the Society in the Federal Court of Appeal, and by one of the interveners before this Court, that on the facts of this appeal, s. 15  of the Charter  has been infringed, or that the ITA and the common law should be interpreted in accordance with the Charter .  That the Charter  is the repository of fundamental values which should be taken into account in the development of the common law is undoubted:  Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at p. 1169.  However, given the grounds on which I would dispose of this appeal, I need not address the possible application of that principle here.

124                           My colleague calls for legislative intervention in the law of charity to rectify certain deficiencies (para. 203).  I acknowledge those deficiencies, and I agree that legislative intervention on a principled basis, leaving adequate flexibility in the application of the law to respond to changing social needs, would be desirable, particularly in light of a restrictive interpretation of the common law.

125                           My colleague’s position, ultimately, is that the Society’s appeal fails because its purposes or activities are too vague, or else its activities are insufficiently related to its purposes.  Iacobucci J.’s first objection, I emphasize, would not be affected by the expansion of the existing Pemsel categories.  As my own reasons indicate, I am not persuaded that Revenue Canada’s concerns as to the alleged vagueness of the Society’s purpose or the “unconnectedness” of its activities are well grounded.  I find that the Society’s purpose is charitable under both the second and fourth heads of the Pemsel scheme.  I am satisfied that the Society’s activities bear a coherent relationship to, and further, its purpose, which is itself charitable.  Iacobucci J.’s second objection stems from his refusal to recognize assisting immigrant women to obtain employment as a charitable purpose under the fourth head.  Adopting a new approach to the Pemsel scheme might well render this purpose charitable.  In my view, however, no such expansion is necessary, because that purpose is already recognized as charitable under the fourth head.  Accordingly, Revenue Canada had no basis upon which to refuse to register the Society as a charitable organization, and the Federal Court of Appeal erred in not so finding.

V. Conclusion

126                           For all of the above reasons, I would allow the appeal, with costs.

The judgment of Cory, Iacobucci, Major and Bastarache JJ. was delivered by

Iacobucci J. --

I.  Introduction

127                           Considering that the law of charity in Canada continues to make reference to an English statute enacted almost 400 years ago, I find it not surprising that there have been numerous calls for its reform, both legislative and  judicial.  This appeal presents an opportunity to reconsider the matter.  Not only is this Court invited to consider, for the first time in more than 25 years, the application of the law as it presently exists, but we also face the interesting questions of whether the time for modernization has come, and if so, what form that modernization might take.  The answers to these questions will decide the ultimate issue before us: whether the appellant qualifies for registration as a charitable organization under the Income Tax Act , R.S.C., 1985, c. 1 (5th Supp .) (formerly R.S.C. 1952, c. 148).

II.  Background

128                           Division H of Part I of the Income Tax Act  (“ITA ”) describes persons who are exempt from tax under Part I.  Included in this category are, among others, both registered charities and non-profit organizations, each as defined by the ITA  (s. 149(1) (f) and (l), respectively).  However, a registered charity is in a more advantageous tax position even than most other persons listed in Division H: in addition to the organization being exempt from tax, contributors to the charity are eligible to receive tax credits in respect of the contributions made.  Simple non-profit organizations do not enjoy this additional benefit, which is designed to encourage the funding of activities which are generally regarded as being of special benefit to society.  That is, the ability of a charitable organization to carry out activities in pursuit of its goals often depends on its ability to attract donations from the public, meaning that the capacity to offer tax benefits to prospective donors can be a major determinant of the success of such an organization.

129                                  Against this legal background, it is not surprising that the appellant, the Vancouver Society of Immigrant and Visible Minority Women (the “Society”) has a strong interest in becoming a registered charity.  On May 10, 1993, the Society applied to the Minister of National Revenue (the “Minister”) for this designation, as required by s. 248(1)  of the ITA .  A previous application had been denied in 1992, and the Society had amended its constitution in an attempt to conform to the requirements of the ITA .  Thus, at the time of the second application, the Society’s stated purposes were as follows:

2.    (a)     To educate members of the Community at large, including immigrant & visible minority women, on the needs and concerns of immigrant & visible minority women in Canada;

(b)     To foster and promote social awareness and community involvement in civic education, volunteer and membership development and preventive social services;

(c)     To facilitate immigrant and visible minority women in achieving economic and social independence and their full potential in Canadian society;

(d)     To co-operate and build a network within British Columbia, especially among immigrant and visible minority women and concerned individuals and groups, in order to provide current information and services for the purpose of mutual support;

(e)     To provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.

130                           In further support of its application, and as required by Revenue Canada, the Society submitted a Statement of Activities which described its objects as “non-political and charitable”, and its activities as providing a “public benefit” through services and workshops “designed to ‘relieve poverty’ and to ‘advance education’”. Among such services were “career and vocational counselling ... where we provide information and assistance in resume writing, interview skills, and dealing with Canadian employers”.  Also mentioned was an “anti-racism education workshop ... educating the general public, particularly to teachers and students, about this important issue”.

131                           In a follow-up telephone call with Revenue Canada on August 24, 1993, an officer of the Society detailed other activities of the organization. Revenue Canada’s memorandum detailing this conversation listed the following:

1. Membership

About 300 members from all walks of life seeking employment opportunities and general support for integration into Canadian life.

2. Job Skills Directory

In addition to its own membership, others wishing to be included in the directory are listed, for a total of approx. 600 persons, ranging from those on social assistance to professionals who have been in the country for a few years and wish to re-enter the work force. No percentages available re income level of those listed.

The Society does not arrange interviews for persons listed. Organizations wishing to employ persons send notice to the Society of jobs that are available. While this information may be brought to the attention of individuals with the required skills, it is up to the person to make the contact and seek the job.

The Directory is not circulated in the job market, but its existence is advertised by the Society in EIC, in educational institutions, etc.

3. Job Skills Training

Other than placing volunteer workers as receptionists, clerks, bookkeepers, computer operators, etc. within the Society’s operation, no training in various skills is undertaken by the Society.

However, pre-Employment counselling re resumes, conduct of job interviews, where to apply for jobs, etc. is conducted by the Society.

4. Employment Equity and Foreign Credentials Committees

Both are concerned with the matter of recognition of degrees and certifications earned in other countries which are not accepted in Canada. Workshops and meetings with teaching and nursing associations and institutions are held to discuss accreditation of certifications and informing individuals of courses required to bring their qualifications to Canadian standards.

This is strictly an educational process -- doesn’t involve legislation.

5. ESL Classes -- are conducted by Employment & Immigration Canada. The Society refers its people to EIC and advises EIC when a need for the class arises.

6. Support Group for Professionals

Assistance and encouragement is given by professional committee to professional members wishing to enter or re-enter the work force, most often with regard to upgrading their certification to meet Canadian requirements.

                                                                   . . .

I questioned “preventive social services”. She explained such activities as public workshop [sic], meetings on matters like abuse, violence vs. women, anti-racism.

132                           In a letter dated August 27, 1993, Revenue Canada raised a number of concerns with respect to the Society’s application and indicated that the Society “as presently constituted [was] unlikely to qualify for registration”.  In general, it stated that the objectives of the Society were too broadly and vaguely worded to be acceptable as charitable purposes, and failed “to specify the charitable means of addressing the particular needs and concerns” of immigrant and visible minority women.  It also indicated that the terms “to foster”, “to promote”, and “to facilitate”, as contained in the purposes clause, were generally considered too remote from the actual conduct of a charitable program to constitute actual charitable activity.

133                           In response, on December 3, 1993, the Society proposed to amend its purposes clause again in order to conform to the required standards.  The proposed clause described the Society’s purposes as follows:

2. ...

a.    to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment;

b.    to carry on political activities provided such activities are incidental and ancillary to the above purposes and provided such activities do not include direct or indirect support of, or opposition to, any political party or candidate for public office; and

c.    to raise funds in order to carry out the above purposes by means of solicitations of funds from governments, corporations and individuals.

134                           However, Revenue Canada indicated by letter dated January 25, 1994, that the Society was still unlikely to qualify.  It explained that the “educational” purpose described in paragraph (a) “lacks the element of well-rounded, systematic instruction that characterizes education in the charitable sense”, given that the presentation of selected items of information orally or in writing to the public did not, in its view, satisfy the requirements of an educational charity: the training of the mind through the learning of a vocational skill or improvement upon a useful branch of human knowledge.  Revenue Canada was of the view that the “educational” activities conducted by the Society were primarily information sessions which, although informative and helpful to interested persons, were not carried out in the systematic and structured manner required. Further, paragraphs (b) and (c) did not disclose charitable purposes, and as such could only be acceptable if considered to be ancillary and incidental activities carried on in furtherance of a primary charitable purpose.

135                           Notwithstanding this negative feedback, the Society formally changed its purposes clause on May 10, 1994.  The amended clause incorporated paragraphs (a), (b), and (c) as set out in the December 3 letter, deleted the former paragraph (d) and retained paragraph (e). The Society advised Revenue Canada of this change on May 20.  In further support of its position, it also provided a variety of other material, including a paper entitled “A Study of Immigrant Women in Vancouver”, which purported to examine the plight of immigrant women in society as a whole and identified specific difficulties encountered by them in seeking employment in Canada.  A letter from another officer of the Society was also sent, stressing that the Society “does not engage in any partisan political activity ... [and] spends its ‘advocacy’ energies and dollars in assisting women in employment related activity -- specifically giving information on community services, teaching job search techniques, assisting with resume writing, etc.”.

136                           By letter dated October 14, 1994, Revenue Canada formally rejected the Society’s application.  It expressed that it was not convinced that the organization was constituted exclusively for charitable purposes, as required for registration under the ITA , as it did not devote substantially all its resources to charitable activities.  It rejected the Society’s attempt to draw an analogy between immigrant and visible minority women and aboriginal Canadians, who had been given special treatment for the purposes of registration as a charity in Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471 (C.A.), opining that the special status of aboriginals in Canadian society was not comparable to the position of visible minority women.  Further, it reiterated its finding that the Society’s programs and activities were not “educational” within the meaning of that term for the purposes of charity law, and also expressed that, to the extent that the Society was apparently created, in whole or in part, for political purposes, it could not be considered a charitable organization for the purposes of the ITA .  Finally, it explained that, although some of the Society’s activities appeared to be charitable, the Society had not established that substantially all of  its resources were devoted to charitable activities.  On this score, Revenue Canada cited such activities as networking, soliciting job opportunities, and maintaining a job skills directory as non-charitable.

137                           The Federal Court of Appeal dismissed the Society’s appeal: 96 D.T.C. 6232.  Writing for himself and Linden and Strayer JJ.A., Décary J.A. found that the Society’s activities did not come within the well-established divisions of charity as originally set out by Lord Macnaghten in Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 (H.L.), or the subsequent common-law development of these categories.  He found that the activities were consistent neither with the advancement of education nor with benefit to the community in a way which the law regards as charitable. The activities of the Society were “not sufficiently structured and articulated as to respond to the requirements set out by the jurisprudence” for the advancement of education (p. 6233).

138                           As to public benefit, Décary J.A., like Revenue Canada, rejected the analogy to Native Communications Society, supra, on the basis that aboriginal people “have a distinct constitutional status quite apart from the Charter ” (p. 6233).  Given that the appropriate question was not “who are those who are most likely to benefit?” but, rather, “do the proposed purposes and activities constitute charitable activities within the ambit of the law of charities?”, Décary J.A. could not find that providing a benefit to those, like minority women, who are in a position to invoke Charter  rights, could in itself make charitable an activity which would not otherwise be so.

139                           In the view of the Federal Court of Appeal, the overriding flaw in the Society’s application was that its purposes and activities were so indefinite and vague as to prevent the Minister from determining with any certainty what the activities were, who their intended beneficiaries were, and whether these beneficiaries were truly in need of charity.  In other words, the purposes and activities were so vague as potentially to permit the Society’s resources to be used for non-charitable purposes: D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970] T.R. 31 (P.C.).  Thus, in the view of the court, the Society, “in being too many things to too many people has opened the door to purposes beyond the legal definition of ‘charity’” (p. 6234).

III.  Relevant Statutory Provisions

140                            Income Tax Act , R.S.C., 1985, c. 1 (5th Supp .)

149.     (1)  No tax is payable under this Part on the taxable income of a person for a period when that person was

(f) a registered charity;

149.1 (1) In this section,

                                                                   . . .

“charitable foundation” means a corporation or trust that is constituted and operated exclusively for charitable purposes, no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof, and that is not a charitable organization;

“charitable organization” means an organization, whether or not incorporated,

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

(b) no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof,

                                                                   . . .

(6.1) For the purposes of the definition “charitable foundation” in subsection (1), where a corporation or trust devotes substantially all of its resources to charitable purposes and

(a) it devotes part of its resources to political activities,

(b) those political activities are ancillary and incidental to its charitable purposes, and

(c) those political activities do not include the direct or indirect support of, or opposition to, any political party or candidate for public office,

the corporation or trust shall be considered to be constituted and operated for charitable purposes to the extent of that part of its resources so devoted.

(6.2) For the purposes of the definition “charitable organization” in subsection (1), where an organization devotes substantially all of its resources to charitable activities carried on by it and

(a) it devotes part of its resources to political activities,

(b) those political activities are ancillary and incidental to its charitable activities, and

(c) those political activities do not include the direct or indirect support of, or opposition to, any political party or candidate for public office,

the organization shall be considered to be devoting that part of its resources to charitable activities carried on by it.

248.  (1) In this Act,

                                                                   . . .

“registered charity” at any time means

                   (a) 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,

                                                                    ...

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;

IV.  Issues

141                        Did the Federal Court of Appeal err in law in finding that the Society did not qualify as a charitable organization within the meaning of the ITA ?  Further, if the Society does not qualify under the traditional definition of charity, should a new approach to the law of charity be adopted?  If so, what form should it take, and can the Society qualify under the new approach?

V.  Analysis

A.  Charity Under the Income Tax Act  and at Common Law

142                        As I have already explained, s. 248(1)  of the ITA  empowers the Minister to grant registered-charity status to qualified charitable organizations and charitable foundations.  To be considered a “charitable organization” for the purposes of the ITA , however, an organization must come within the criteria set out in s. 149.1(1), the most significant of which for the purposes of this appeal is that the organization must devote all of its resources to charitable activities. 

143                        While this may appear, at first glance, to be rather a simple test, it actually poses a number of problems.  For one, the ITA  does not define what is or is not a charitable activity.  Rather, it implicitly relies upon  the common law for guidance.  As Stone J.A. put it in Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340 (C.A.), at p. 347:

. . . the Act appears clearly to envisage a resort to the common law for a definition of “charity” in its legal sense as well as for the principles that should guide us in applying that definition.

144                        The common-law definition of “charity” developed in the context of trust law, where a charitable purpose trust is an exception to the general rule that a purpose trust in invalid. Therefore the trust law question focuses on charitable purposes and not charitable activities. The starting point for the determination of whether a purpose is charitable has, for more than a century, been  Lord Macnaghten’s classification, set out in Pemsel, supra, of the purposes the common law had come to recognize as charitable:

“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.

Subsequent courts and commentators have held that Lord Macnaghten was adopting Lord Romilly’s classification (as counsel) from Morice v. Bishop of Durham (1805), 10 Ves. Jun. 522, 32 E.R. 947, at p. 951, on appeal from the decree of the Master of the Rolls (1804), 9 Ves. Jun. 399, 32 E.R. 656, which was:

. . . 1st, relief of the indigent; in various ways: money: provisions: education: medical assistance; &c.: 2dly, the advancement of learning: 3dly, the advancement of religion; and, 4thly, which is the most difficult, the advancement of objects of general public utility.

This classification is generally understood to refer to the preamble of the Charitable Uses Act, 1601, 43 Eliz. 1, c. 4, commonly referred to as the Statute of Elizabeth, which listed various activities thought to be charitable.  The preamble was, as D. W. M. Waters puts it, “the judicial lodestar as to what sort of activities (or trust purposes)” were to be considered charitable: Law of Trusts in Canada (2nd ed. 1984), at p. 550.

145                        The preamble lists many charitable purposes and is most commonly referred to in its modern English rendition, as it was by Slade J. in McGovern v. Attorney-General, [1982] Ch. 321, at p. 332, and adopted on several occasions by the Federal Court of Appeal:

. . . 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.

146                        However, it is important to recall Lord Macnaghten’s understanding of the status of the preamble. In Pemsel, supra, at p. 581, immediately after his observation that “charity” has a technical meaning and prior to his outline of the four divisions, Lord Macnaghten made the following reference to the Statute of Elizabeth:

Whatever may have been the foundation of the jurisdiction of the Court over [charitable] 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 (1 D. & J. 79), “are not to be taken as the only objects of charity but are given as instances.”  [Emphasis added.]

Therefore the court has always had the jurisdiction to decide what is charitable and was never bound by the preamble. Nonetheless, the preamble proved to be a rich source of examples and the law of charities has proceeded by way of analogy to the purposes enumerated in the preamble.  Indeed, as Lord Wilberforce observed in Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138 (H.L.), at p. 154:

...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 according 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 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.

147                        The Supreme Court of Canada implicitly adopted the Pemsel classification in The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76, and explicitly  approved of it in Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133. However, in Guaranty Trust this Court also noted, citing with approval Verge v. Somerville, [1924] A.C. 496 (P.C.), at p. 499,  that the Pemsel scheme is subject to the consideration that the purpose must also be “[f]or the benefit of the community or of an appreciably important class of the community” (p. 141).  This language of “benefit of the community” is unfortunate because  it creates confusion with the fourth head of charity under the Pemsel scheme -- trusts for other purposes beneficial to the community. Nonetheless, this other notion of public benefit is different and reflects the general concern that “[t]he essential attribute of a charitable activity is that it seeks the welfare of the public; it is not concerned with the conferment of private advantage”:  Waters, supra, at p. 550. This public character is a requirement that attaches to all the heads of charity, although  sometimes the requirement is attenuated under the head of poverty. It is this public quality that I also take Rand J. to be referring to in Sunny Brae, supra, at p. 88, when, after outlining the four classifications of charitable purposes, he stated that “the attributes attaching to all are their voluntariness and, directly or indirectly, their reflex on public welfare”.

148                        The difference between the Pemsel classification and this additional notion of being “for the benefit of the community” is perhaps best understood in the following terms. The  requirement of being “for the benefit of the community” is a necessary, but not a sufficient, condition for a finding of charity at common law. If it is not present, then the purpose cannot be charitable. However, even if it is present  the court must still ask whether the purpose in question has what Professor Waters calls, at p. 550,  the “generic character” of charity. This character is discerned by perceiving an  analogy with those purposes already found to be charitable at common law, and which are classified for convenience in Pemsel. The difference is also often one of focus: the four heads of charity concern what is being provided while the “for the benefit of the community” requirement more often centers on who is  the recipient.

149                        Although the Pemsel approach  has been applied countless times by Canadian courts, both prior and subsequent to Guaranty Trust, its application to the myriad of modern organizations vying to be identified as charitable has often proved a daunting task. There have been repeated calls for the expansion or replacement of the test to reflect more completely the standards and values of modern Canadian society.  As Strayer J.A. recently observed in Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202 (C.A.), at para. 8, the definition of charity “remains ... an area crying out for clarification through Canadian legislation for the guidance of taxpayers, administrators, and the courts”. 

150                        In the absence of legislative reform, Canadian courts must contend with the difficulty of articulating how the law of charities is to keep “moving” in a manner that is consistent with the nature of the common law. As this Court held in R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670:

Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

There are thus limits to the law reform that may be undertaken by the judiciary.

151                        Furthermore, given that the present appeal concerns the definition of a charitable organization for the purposes of the ITA , it is imperative to preserve the distinction that the ITA  makes between charitable and non-profit organizations. Non-profit organizations, according to s. 149(1)(l), include

a club, society or association that, in the opinion of the Minister, was not a charity within the meaning assigned by subsection 149.1(1) and that was organized and operated exclusively for social welfare, civic improvement, pleasure or recreation or for any other purpose except profit, no part of the income of which was payable to, or was otherwise available for the personal benefit of, any proprietor, member or shareholder thereof unless the proprietor, member or shareholder was a club, society or association the primary purpose and function of which was the promotion of amateur athletics in Canada;

Therefore according to the ITA , it must be possible to have an organization that is “operated exclusively for social welfare” and is not constituted for private advantage, but which is not a charitable organization. The common law of charities must not be  interpreted so as to undermine this distinction between non-profit organizations and charitable organizations.

152                        While the definition of “charitable” is one major problem with the standard in s. 149.1(1), it is not the only one.  Another is its focus on “charitable activities” rather than purposes.   The difficulty is that the character of an activity is at best ambiguous; for example, writing a letter to solicit donations for a dance school might well be considered charitable, but the very same activity might lose its charitable character if the donations were to go to a group disseminating hate literature.  In other words, it is really the purpose in furtherance of which an activity is carried out, and not the character of the activity itself, that determines whether or not it is of a charitable nature.  Accordingly, this Court held in Guaranty Trust, supra, that the inquiry must focus not only on the activities of an organization but also on its purposes.

153                        Unfortunately, this distinction has often been blurred by judicial opinions which have used the terms “purposes” and “activities” almost interchangeably.  Such inadvertent confusion inevitably trickles down to the taxpayer organization, which is left to wonder how best to represent its intentions to Revenue Canada in order to qualify for registration.  In fact, as may become clear shortly, the Society may have suffered exactly this difficulty in drafting its purposes clause.

154                        The final consideration raised by s. 149.1 is that of exclusive charitability. Under subs. (1), the definition of  “charitable foundation” includes the requirement that it  “is constituted and operated exclusively for charitable purposes” and “charitable organization” means, inter alia, an organization “all the resources of which are devoted to charitable activities carried on by the organization itself”.  The ITA , therefore, clearly requires that all of  the purposes and activities of the foundation or organization be  charitable. In light of the preceding discussion regarding the construal of charitable activities, exclusively charitable activities would be those that directly further charitable  purposes and not other, non-charitable, purposes.

155                        The ITA  does make an exception to this requirement of exclusive charitability in s. 149.1(6.1) and (6.2). Subsection (6.1) reads as follows:

(6.1) For the purposes of the definition “charitable foundation” in subsection (1), where a corporation or trust devotes substantially all of its resources to charitable purposes and

(a) it devotes part of its resources to political activities,

(b) those political activities are ancillary and incidental to its charitable purposes, and

(c) those political activities do not include the direct or indirect support of, or opposition to, any political party or candidate for public office,

the corporation or trust shall be considered to be constituted and operated for charitable purposes to the extent of that part of its resources so devoted.

Subsection (6.2) is identical except that it applies to a “charitable organization” rather than “charitable foundation”  and refers to “charitable activities” rather than “charitable purposes”. Thus the ITA will accept as charitable an organization/trust/corporation  that devotes “substantially all” rather than all of its resources to charitable activities or purposes only when that organization/trust/corporation meets the requirements of subss. (6.1) and (6.2) which refer to political activities. Otherwise, an organization that devotes substantially all of its resources, rather than all,  to charitable activities would run afoul of the general requirement of exclusive charitability found in the definitions of “charitable foundation” and “charitable organization” in s. 149.1(1).

156                        There is, however, one other exception to this rule.  Though they concerned a provision of an Act other than our ITA , I believe the words of Denning L.J. in British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462 (C.A.), at pp. 467-68, as adopted by this Court in Guaranty Trust, supra, at p. 143, are apposite in this instance as well:

It is not sufficient that the society should be instituted “mainly” or “primarily” or “chiefly” for the purposes of science, literature or the fine arts.  It must be instituted “exclusively” for those purposes.  The only qualification -- which, indeed, is not really a qualification at all -- is that other purposes which are merely incidental to the purposes of science and literature or the fine arts, that is, merely a means to the fulfilment of those purposes, do not deprive a society of the exemption.  Once however, the other purposes cease to be merely incidental but become collateral; that is, cease to be a means to an end, but become an end in themselves; that is, become additional purposes of the society; then, whether they be main or subsidiary, whether they exist jointly with or separately from the purposes of science, literature or the fine arts, the society cannot claim the exemption. [Emphasis added by Ritchie J. in Guaranty Trust.]

157                        In Guaranty Trust, Ritchie J., for the majority, relied on this statement to find that, although a particular purpose was not itself charitable, it was incidental to another, charitable purpose, and was therefore properly to be considered not as an end in itself, but as a “means of fulfilment” of another purpose, which had already been determined to be charitable.  Viewed in this way, it did not vitiate the charitable character of the organization.  (See also Positive Action Against Pornography, supra, at p. 355, where a similar argument was considered and rejected, but only on the facts.)

158                        The chief proposition to be drawn from this holding is that even the pursuit of a purpose which would be non-charitable in itself may not disqualify an organization from being considered charitable if it is pursued only as a means of fulfilment of another, charitable, purpose and not as an end in itself. That is, where the purpose is better construed as an activity in direct furtherance of a charitable purpose, the organization will not fail to qualify as charitable because it described the activity as a purpose.

159                        In conclusion, on the basis of the Canadian jurisprudence, the requirements for registration under s. 248(1) come down to two:

(1)    the purposes of the organization must be charitable, and must define the scope of  the activities engaged in by the organization; and

(2)    all of the organization’s resources must be devoted to these activities unless the organization falls within the specific exemptions of s. 149.1(6.1) or (6.2).

In the absence of legislative reform providing guidelines, the best way in which to discern the charitable quality of an organization’s purposes  is to continue to proceed by way of analogy to those purposes already found to be charitable by the common law, and conveniently classified in Pemsel, subject always to the general requirement of providing a benefit to the community, and with an eye to society’s current social, moral, and economic context. The task at hand, then, is to consider whether the Society, as presently constituted, has met these criteria.

B.  Charitable Purposes

160                        The Society submits that its purposes clause restricts it to activities which qualify as charitable either under the second heading in Pemsel, the advancement of education, or the fourth heading, purposes beneficial to the community.  However, for the reasons that follow, I cannot accede to this submission.  In the end, while it is true that at least some of the Society’s purposes contemplate charitable activities, it cannot be said that they restrict the Society to charitable activities alone, even if this was the intention behind the re-drafting of the clause.

(1)    Advancement of Education

161                        In Canada, “advancement of education” has been given a fairly restricted meaning. As noted by Stone J.A. in Positive Action Against Pornography, supra, at pp. 348-49, it has generally been limited to the “formal training of the mind” or the “improvement of a useful branch of human knowledge”, and even that has been considered an expansion of the traditional view, which admitted only of the former.  Relying upon this, Stone J.A. rejected the submission that the distribution of “educational” material regarding the issue of pornography was a charitable activity.  As he stated,  at p. 349, “the presentation to the public of selected items of information and opinion ... cannot be regarded as educational in the sense understood by this branch of the law”.  See also Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424 (F.C.A.), as well as Briarpatch Inc. v. The Queen, 96 D.T.C. 6294 (F.C.A.), in which Robertson J.A. relied (at p. 6295) on the following passage from Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096 (F.C.A.), as a guide:

[W]hen the word “education” or “educational” is used without qualification, it has reference to a fundamental process of learning which is aimed at preparing either for life in general or for a large purpose such as a particular profession or trade, and is in any event without an immediately utilitarian focus.

162                        Viewed in light of these common-law parameters, the decisions by Revenue Canada and the Federal Court of Appeal to deny registration to the Society under the advancement of education category are neither surprising nor incorrect.   Although purpose (a) does contemplate the provision of “educational forums, classes, workshops and seminars”, the goal of these programs is clearly “immediately utilitarian”: preparing women “to find or obtain employment or self-employment”.  This does not, in my view, equate to preparation for “life in general” or for a “particular profession or trade”. 

163                        This conclusion is bolstered, I think, by the nature of the activities which the Society viewed as coming within purpose (a).  On the basis of the Society’s submissions and follow-up conversations, it was not unreasonable for Revenue Canada to conclude that there was  no systematic instructional structure or format to the supposedly educational activities planned by the Society.  Indeed, quite apart from the way in which these programs ultimately may have been implemented, it seems that the Society was unable even to show any actual intention to confine its activities to within either the formal training of the mind or the improvement of a useful branch of human knowledge, as those terms have been defined at common law.  It is easy to see how information sessions presented on such topics as human rights, employment equity, violence and abuse against women, and how to start a small business, while probably informative and important, would appear to be more in the nature of “the presentation to the public of selected items of information and opinion”, to borrow the language of Stone J.A. in Positive Action Against Pornography, supra.  Thus, if lacking the quality of systematic instruction must necessarily disqualify an activity from coming within the advancement of education, then the Federal Court of Appeal was justified in finding that the Society’s activities were not charitable under this heading, and consequently that the purposes clause, to the extent that it contemplated such activities, did not restrict the Society to charitable activities for the advancement of education.

164                        However, while the Federal Court of Appeal may have followed its own jurisprudence, it is not clear to me that this Court should as well. I think that Stone J.A.’s statement that “the presentation to the public of selected items of information” is not educational must be read in light of his conclusions with respect to the fourth head of charity, namely that the material being disseminated exhibited a strong anti-pornography bias. Clearly such biased material, in most cases, would disqualify an organization from the second head of charity without necessitating an inquiry into whether the organization pursued some kind of formal training of the mind, broadly understood.

165                        I do not endorse Robertson J.A.’s approval, in Briarpatch, supra, of the definition of “education” found in Maclean Hunter, supra.  Maclean Hunter is not a charities case, and was concerned, among other things, with the meaning of the “printed books . . . [used] solely for educational . . . purposes” exemption from sales tax under the Excise Tax Act, R.S.C. 1970, c. E-13, ss. 27(1), 29(1) and Sch. III, Part III, s. 3(a). The court referred to the plain meaning of “education” to decide this question. However, to find that a purpose falls under the second head of charity, one proceeds by way of analogy to other cases found to fall under that head, not by asking whether the purpose would be found to fall within the plain meaning of “education”. In other words, the question is what is educational in the way the law of charities uses the term.

166                        For these reasons, I believe that the law regarding the educational head of charity should be modified and in that respect it is worth considering the slightly more expansive approach taken by the English courts.  Although Stone J.A. alluded to this in Positive Action Against Pornography, the full inclusiveness of this approach certainly did not find its way into Canadian law by virtue either of that judgment or of its progeny.  In Inland Revenue Commissioners v. McMullen, [1981] A.C. 1, at p. 15, the House of Lords recognized that

both the legal conception of charity, and within it the educated man’s ideas about education, are not static, but moving and changing.  Both change with changes in ideas about social values.  Both have evolved with the years.  In particular in applying the law to contemporary circumstances it is extremely dangerous to forget that thoughts concerning the scope and width of education differed in the past greatly from those which are now generally accepted.

See also Re Hopkins’ Will Trusts, [1964] 3 All E.R. 46 (Ch. D.), and Scottish Burial Reform, supra.

167                        This judicial attitude has led, for example, to the characterization as charitable of a trust for the support of an amateur soccer league, on the grounds that it promoted the physical education and development of students as an adjunct to their formal education (McMullen), as well as a trust for the promotion of conferences on a wide variety of academic subjects: Re Koeppler Will Trusts, [1986] Ch. 423 (C.A.).  Even in Canada, the law has occasionally recognized non-traditional educational activities as charitable, such as a summer camp where children were taught about their heritage and ancestral culture: Re Societa Unita and Town of Gravenhurst (1977), 16 O.R. (2d) 785 (H.C.), aff’d (1978), 6 M.P.L.R. 172 (Ont. Div. Ct.).

168                        In my view, there is much to be gained by adopting a more inclusive approach to education for the purposes of the law of charity.  Indeed, compared to the English approach, the limited Canadian definition of education as the “formal training of the mind” or the “improvement of a useful branch of human knowledge” seems unduly restrictive.  There seems no logical or principled reason why the advancement of education should not be interpreted to include more informal training initiatives, aimed at teaching necessary life skills or providing information toward a practical end, so long as these are truly geared at the training of the mind and not just the promotion of a particular point of view.  Notwithstanding the limitations posed by the existing jurisprudence, to adopt such an approach would amount to no more than the type of incremental change to the common law of which this Court has approved in such decisions as Watkins v. Olafson, [1989] 2 S.C.R. 750, and Salituro, supra.

169                        To limit the notion of “training of the mind” to structured, systematic instruction or traditional academic subjects reflects an outmoded and under inclusive understanding of education which is of little use in modern Canadian society.  As I said earlier, the purpose of offering certain benefits to charitable organizations is to promote activities which are seen as being of special benefit to the community, or advancing a common good.  In the case of education, the good advanced is knowledge or training.  Thus, so long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education. 

170                        As the Ontario Law Reform Commission pointed out in its 1996 Report on the Law of Charities, knowledge can take many forms.  It can be theoretical or practical, speculative or technical, scientific or moral.  Moreover, it can be sought in many different ways, and for many different reasons, whether for its own sake or as a means to an end.  Viewed in this way, there is no good reason why non-traditional activities such as workshops, seminars, self-study, and the like should not be included alongside traditional, classroom-type instruction in a modern definition of “education”.  Similarly, there is no reason to exclude education aimed at advancing a specific, practical end.  In terms of encouraging activities which are of special benefit to the community, which is the ultimate policy reason for offering tax benefits to charitable organizations, there is nothing to be gained, and much to be lost, by arbitrarily denying benefits to organizations devoted to advancing various types of useful knowledge.

171                        That is not to say that education should be broadened beyond recognition, however.  Even while advocating a more inclusive approach to education, the Ontario Law Reform Commission also cautioned against treating as educational those activities which, although they advance legitimate goods, do not include any actual teaching or learning component.  The concern is that, in certain cases, activities which fit awkwardly with the concept of education -- such as, for example, a trust to assist the publication of unknown authors -- seem to have been accorded charitable status under that category nonetheless, mainly because they did not fall within any of the other categories.  I would agree with that caution.  To my mind, the threshold criterion for an educational activity must be some legitimate, targeted attempt at educating others, whether through formal or informal instruction, training, plans of self-study, or otherwise.  Simply providing an opportunity for people to educate themselves, such as by making available materials with which this might be accomplished but need not be, is not enough.  Neither is “educating” people about a particular point of view in a manner that might more aptly be described as persuasion or indoctrination.  On the other hand, formal or traditional classroom instruction should not be a prerequisite, either.  The point to be emphasized is that, in appropriate circumstances, an informal workshop or seminar on a certain practical topic or skill can be just as informative and educational as a course of classroom instruction in a traditional academic subject.  The law ought to accommodate any legitimate form of education.

172                        A further concern is  that once we allow education to be directed toward a practical end and not just the “formal training of the mind” or the “improvement of a useful branch of human knowledge”, at some point education ceases to be an end in itself and is better characterized as an activity directed toward an end that must be independently determined to be charitable. However, education is unique in that  it can be characterized both as an activity in furtherance of some specific end and as  an  activity that provides transferable skills and knowledge that enable one  to continue to learn new things throughout one’s life. In this way, education is an end in itself even when it also has an instrumental character. There may be situations in which education cannot be said to have this dual aspect, and so ceases to be an end in itself, but such situations are likely rare and certainly do not include the case at bar.

173                        In summary, then, I reiterate my view that purpose (a), the primary purpose of the Society, would not qualify as charitable under the traditional approach to education, as it seems to lack the element of systematic instruction that is required by the existing Canadian jurisprudence in this area.  However, given the commitment “to provide educational forums, classes, workshops and seminars” to enable the Society’s constituents  “to find or obtain employment”, it would be charitable under the more expansive definition of education I have proposed.  That is, the purpose is to train the minds of immigrant women in certain important life skills, with a specific end in mind: equipping them to find and secure employment in Canada.  I find that this is indeed a valid charitable purpose.  Moreover, certain activities carried out in furtherance of this purpose, such as the provision of the educational programs contemplated by the purposes clause, are undoubtedly charitable within this expanded definition, whether or not they have the quality of systematic instruction traditionally associated with education in the charitable sense.

174                        Even if the purpose is charitable under the second head of the Pemsel classification, it must still satisfy the requirement that it benefit “the community or . . . an appreciably important class of the community”. This requirement, in the context of education, has been held to mean that the class must be substantial, or at least not so small that there is no benefit to the community as a whole, and the benefits cannot be provided exclusively to a particular class of private individuals, defined only by their personal relationships to the organization or their creed: Oppenheim v. Tobacco Securities Trust Co., [1951] A.C. 297 (H.L.); see also Tudor on Charities (8th ed. 1995), at pp. 60-62. I must say that there is no doubt in my mind that the fact that the class of beneficiaries is limited to immigrant and visible minority women would pose no problem to the Society’s application. 

(2)    Fourth Head of Charity: Public Benefit

175                        In Native Communications Society, supra, at pp. 479-80, the Federal Court of Appeal set out certain “necessary preliminaries” for the determination of a charitable purpose under the fourth category of Lord Macnaghten’s formulation.  As Stone J.A. put it, 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, and 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.

176                        In other words, more is required than simple “public benefit”, in the ordinary sense of that term, to bring a purpose within the fourth head of Pemsel.  In Positive Action Against Pornography, supra, at p. 352, Stone J.A. stressed that the task of the court under this heading is relatively narrow; it is 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” (emphasis added). Thus, it is not sufficient to assert, as the Society has, that, by helping immigrant and visible minority women to obtain employment, it creates a “level playing field”, which is in the public benefit because it is “in the public interest of immigrants and in fact of all Canadians that immigrants obtain employment as quickly as possible”.  Rather than laying claim to public benefit only in a loose or popular sense, it is incumbent upon the Society to explain just how its purposes are beneficial in a way the law regards as charitable.

177                        In D’Aguiar, supra, it was recognized that the guidance provided by the common law in this area is not particularly clear.  I agree.  The requirement that the purposes benefit the community “in a way the law regards as charitable” is obviously circular, and the various examples enumerated in the preamble to the Statute of Elizabeth seem to lack a common character or thread on which to base any coherent argument from analogy.  That notwithstanding, however, the Privy Council in that case set out what is in my view a useful approach to the assessment of an organization’s purposes under the fourth head (at p. 33):

[The Court] must first consider the trend of those decisions which have established certain objects as charitable under this heading, and ask whether, by reasonable extension or analogy, the instant case may be considered to be in line with these.  Secondly, it must examine certain accepted anomalies to see whether they fairly cover the objects under consideration.  Thirdly -- and this is really a cross-check upon the others -- it must ask whether, consistently with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity; if so, the argument for charity must fail.

To this I would add the general requirement, outlined in Verge v. Somerville, supra, at p. 499, that the purpose must also be “for the benefit of the community or of an appreciably important class of the community” rather than for private advantage.

178                        In considering these requirements, then, it is first necessary to determine what “trend”, if any, can be discerned from previous decisions under the fourth head. My colleague, Gonthier J., reasons, at para. 95,  that there is a line of cases  recognizing that “immigrants are often in special need of assistance in their efforts to integrate into their new home”.  Helping immigrant women obtain employment would therefore be included within this purpose. With respect, I disagree that the cases cited in support of this proposition can be so characterized.

179                        In differing with my colleague on these cases, I do not wish to be taken as disagreeing with the underlying sentiment that assistance to immigrant women is a laudable goal. The question before this Court, however, is not whether this purpose should be considered charitable but whether the common law recognizes it to be charitable. I agree that the law in this area is in need of reform but there are limits to the degree of change that the common law can accommodate. It is one thing to change the law by legislative amendment and quite another to alter the existing jurisprudence by a fundamental turning in direction.

180                        It is imperative to recall also the various ways in which one may presently obtain immigrant status. There are many categories of admission under the Immigration Act, R.S.C., 1985, c. I-2. Of particular relevance to the present case is the category for those who seek to immigrate under the points system, sometimes colloquially referred to as the “independent class”. D. B. N. Bagambiire, in his text Canadian Immigration and Refugee Law (1996), at p. 35, lists the following individuals under this categorization:

...applicants who wish to immigrate purely on the basis of their education, training, experience and skills possessed, known as “skilled workers”; applicants who seek to immigrate under the business immigration program and sub-programs; the self-employed persons, entrepreneurs and investors; and those immigrants who are related to Canadian citizens and permanent residents, but whose relationship with those relatives is not close enough for them to qualify as members of the coveted and preferred family class category, generically known as “assisted relatives”. Applicants under each one of these subcategories are evaluated and assessed on the basis of criteria set forth in the regulations.

What this means is that these applicants must be assessed according to a point system outlined in the regulations: Immigration Regulations, 1978, SOR/78-172, ss. 6.11 to 6.19 and 8 to 11.1; see also s. 6(8) and 9(1.4) of the Immigration Act. The central question in this assessment is whether the applicant will be able to integrate successfully into Canadian society, with particular emphasis placed upon employment skills and opportunities. Given this expectation of successful integration and despite its unquestionable worthiness as a social goal – indeed, not only for immigrants but also for all Canadians – I fail to see how providing assistance with integration to independent immigrants  is to be considered charitable at common law.  Of course, many other groups of immigrants may in fact be in special need of such assistance. But in so far as an organization assists all immigrants,  I find it difficult to see how such an organization does not run afoul of the exclusive charitability rule, absent either specific legislation or the targetting by the organization of groups with special needs relating to their immigrant status. In my opinion the case law from other jurisdictions, cited by Gonthier J., supports this position rather than undermines it.

181                        In Re Stone (1970), 91 W.N. (N.S.W.) 704, the Supreme Court of New South Wales held that the promotion of Jewish settlement in Israel was charitable under the fourth head of charity. In finding the trust charitable under this head, Helsham J.  referred to the case of Verge v. Somerville, supra, which held that a trust to help resettle ex-servicemen in their native land  and give them a “fresh start” was for a charitable purpose. He does not discuss why  the resettlement of soldiers is analogous to Jewish settlement in Israel, but I find the context for this analogy to be provided by Helsham J.’s earlier discussion of the argument that this was also a trust for the advancement of religion. Although Helsham J. rejected this argument, following a previous House of Lords decision, he did discuss at length the religious duty of the Jewish people to return to the Promised Land. To my mind, it is this aspect of return, combined with the persecution of the Jewish people that culminated in the establishment of the State of Israel, that makes this trust analogous to that in Verge v. Somerville, supra. However, I do not think that the analogy embraces the more general case of helping any immigrants to settle in a new land. Immigrants, considered generally, are not returning either to their native country or their spiritual home. Nor have they necessarily been subjected to the hardships of soldiers or the persecution of members of the Jewish faith. I note that Helsham J. does make a broader claim, at p.  718, referring to  “the encouragement and settlement of migrants”.  However, I am struck by the lack of reasoning to support this statement, and would therefore confine the decision to the context of Jewish settlement in Israel.

182                        Another case cited by my colleague is In re Wallace, [1908] V.L.R. 636 (S.C.), in which a trust to aid immigrants was upheld as a trust for the relief of poverty. The case was clearly decided on this basis and although Hood J. commented in obiter that, given the fact of the Immigration Acts, a trust to aid immigration could be charitable as for the public benefit, he also noted, at p. 640, that “there are divergent opinions on the subject”. This latter position, involving looking to the fact of legislation as evidence of public benefit,  invokes an understanding of public benefit that is wider than, and contrary to, the common law of charities. The common law determines public benefit under the fourth head through analogy to cases already found to be charitable. I would therefore decline to follow Hood J.’s reasoning on this point.

183                        I do not wish to be taken as saying that the existence of legislation in a field is never relevant to the question of what is charitable. Indeed, the Federal Court of Appeal in Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52,  pointed to legislation in order to rebut the argument that the provision of abortions in private clinics was contrary to public policy. But this is simply to say that a finding of public benefit, understood broadly,  is a necessary but not sufficient condition for a finding of charity under the fourth head; if there is no public benefit, then there is no charity. Public benefit alone, however, does not equal charity.

184                        I would also distinguish the case at bar from  In re Cohen, [1954] N.Z.L.R. 1097 (S.C.). There the court found that a trust for the assistance of refugees was charitable under both the first and fourth heads. It held, at p. 1101, that “the establishment in a new country of persons uprooted from and compelled to flee their own homes” was analogous to the repatriation of returned soldiers at issue in Verge v. Somerville, supra. The relief of refugees was also upheld as charitable in Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757 (Ch. D.). While it is true that refugees and immigrants may share many interests and needs, it is the fact that refugees are “compelled to flee their own homes” in the face of persecution that makes their situation analogous to that of soldiers returning from war.

185                        I would similarly distinguish the Ethnic Minority Training and Employment Project, Reg. No. 1050917, registered by the Charity Commissioners for England and Wales in  November 22, 1995, from the case at bar. The purposes of that organization are to assist and educate

refugees, asylum seekers, migrants and others who recently arrived in the United Kingdom, in particular those from the Horn of Africa, who through their social and economic circumstances are in need and unable to further their education or gain employment, and who may be at risk or [sic] permanent exclusion from the labour market;

Refugees and asylum seekers are distinguishable from immigrants generally, for the reasons outlined above. Nonetheless, this organization also aids “migrants and others”. However, it strongly qualifies this through reference to those from the Horn of Africa and those whose circumstances are such that they face “permanent exclusion from the labour market”. To my mind, these factors go to the relief of poverty. Indeed, in Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232 (Ch. D.), at p. 233,  Simonds J. held that

[i]t is clear from the cases which have been cited to me that a gift may be a good charitable gift, as in relief of poverty, although the recipients of the gift are not in destitution, or even on the borderline of destitution. “Poverty,” it has been said, is a relative term. I think here that the implication of the gift to enable the recipients to become self-supporting is a sufficient indication that they stand on the poverty side of the borderline -- that is to say, that they are persons who could not be self-supporting, in whatever enterprise they embarked, without the assistance of this fund. [Emphasis added.]

In the present case, it is not clear that the Society is targeting those who are at risk of permanent exclusion from the job market, or who cannot become self-supporting without the Society’s assistance.

186                        The final authority cited by my colleague is a ruling of the Internal Revenue Service in the United States that a non-profit organization that assists immigrants “in overcoming social, cultural and economic problems by either personal counselling or referral to the appropriate public or private agencies” is charitable: U.S. Rev. Rul. 76-205 in  Internal Revenue Cumulative Bulletin 1976-1, at p. 154. The revenue ruling held that:

The organization was formed to aid immigrants to the United States in overcoming social, cultural, and economic problems by either personal counseling or referral to the appropriate public or private agencies. The organization has found that immigrants may be subject to discrimination and prejudice, often arrive without friends or relatives, possess a limited knowledge of English, and lack an awareness of employment opportunities. To help overcome these handicaps, the organization offers instruction in English by its multilingual staff, job counseling, and social and recreational functions that permit a mingling of immigrants with each other and with United States citizens. The organization also distributes a newsletter containing information on becoming a citizen, securing decent housing, and obtaining medical care.

The organization relies upon grants and contributions from the general public for support. It does not charge for its services.

Section 501(c)(3) of the Code provides for the exemption from Federal income tax of organizations organized and operated exclusively for charitable and educational purposes.

Section 1.501(c)(3)-1(d)(3) of the Income Tax Regulations defines the term “educational” as including the instruction of the public on subjects useful to the individual and beneficial to the community.

Section 1.501(c)(3)-1(d)(2) of the regulations provides that the term “charitable,” as used in section 501(c)(3) of the Code, includes the elimination of prejudice and discrimination.

By counseling immigrants, the organization is instructing the public on subjects useful to the individual and beneficial to the community, and is, therefore, furthering an educational purpose. Personal counseling has been recognized as a valid method of instruction for educational organizations. See Rev. Rul. 73-569, 1973-2 C.B. 178. In addition, by offering instruction in English, by assisting immigrants in finding helpful agencies, by aiding immigrants to attain full citizenship, and by providing opportunities for immigrants to meet and discuss problems with each other and United States citizens, the organization is also eliminating prejudice and discrimination.

The activities that the organization engages in beyond education  were therefore clearly held to be charitable because they eliminate  prejudice and not because they are aimed at the more general purpose of helping immigrants integrate into society.

187                        I have difficulty agreeing that the activities described in the above revenue ruling are directly in furtherance of the purpose of eliminating prejudice and discrimination so as to make them exclusively charitable. Even if they are, I have difficulty in accepting the same with respect to the case at bar.  The Society is solely aimed at helping immigrant women obtain employment, and it is not clear that all of the difficulties faced by immigrant women in obtaining employment stem from prejudice and discrimination so as to make this an exclusively charitable purpose.  For example, making contacts and obtaining information pose difficulties with respect to gaining employment, but these difficulties do not necessarily indicate prejudice and discrimination. Therefore the Society’s objects fail the third step of the D’Aguiar approach to the fourth head of charity, which asks whether “consistently with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity” (p. 33). As the matter is not in issue, I would also decline to comment as to whether the elimination of prejudice and discrimination may be recognized as a charitable purpose at common law.

188                        The only Canadian authority provided to me is Re Fitzgibbon (1916), 27 O.W.R. 207 (H.C.), in which a bequest to an institution for the assistance of immigrant girls was upheld. With respect, I do not find the reasoning in this case persuasive. Middleton J. did not follow the Pemsel approach endorsed by this Court and, moreover, drew analogies to cases that appear to have an educational component and so provide little assistance in determining the content of the fourth head of charity.

189                        In summary, I do not find any support for the proposition that assisting immigrant women to integrate into society through helping them to obtain employment is a charitable purpose under the fourth head of charity. Therefore I would characterize  purpose (a) listed in the Society’s purposes solely in terms of education. That, however, does not end the inquiry.  For one thing, it remains to be determined whether all of the Society’s resources are devoted to activities in furtherance of charitable purposes.  But, before I turn to answer that question, the Society must overcome another preliminary hurdle and that is the examination of its listed purposes (b), (c), and (e).  In Guaranty Trust, supra, this Court confirmed the rather obvious proposition that, even if one or more of an organization’s purposes are charitable, the organization still cannot be considered charitable if its other purposes cannot qualify as such.  That is, a valid charitable organization must be constituted exclusively for charitable purposes. For reasons that I will outline, I believe  that if  purposes (b), (c), and (e) are to be upheld, they must be found to be ancillary and incidental to the valid educational purpose found in purpose (a).

(3) Ancillary and Incidental Purposes

190                        Purposes (b) and (c) contemplate carrying out political activities and soliciting funds from public and private sources.  Political purposes are not generally considered charitable (see, for example, Positive Action Against Pornography, supra), and certain exceptions available under s. 149.1  of the ITA , which I will discuss below, apply only to political activities incidental and ancillary to other, charitable activities, not political purposes incidental and ancillary to other, charitable purposes: Human Life International, supra.

191                        Thus, it is significant to note that  paragraphs (b) and (c) of the Society’s purposes clause make it  quite clear that the activities to be carried out in furtherance of those purposes are to be “ancillary and indental” to purpose (a), which I have found to be a valid educational purpose.  I believe that the inclusion of this language was actually an attempt to bring the Society into conformity with the exception in s. 149.1(6.2)  of the ITA , which provides that, to the extent that political activities carried out by an organization are “incidental and ancillary” to charitable activities, the portion of the organization’s resources that is devoted to the political activities is deemed to be devoted to charitable activities. 

192                        As I have already indicated, s. 149.1(6.2) makes no mention of political purposes and thus provides no direct assistance to the Society.  However, the indirect result of the Society’s effort to comply with the section is that its purposes clause now makes clear that the sole purpose of carrying out political activities and raising funds is to facilitate a valid educational purpose.  Thus, in my view, purposes (b) and (c) can be taken as means to the fulfilment of purpose (a), not ends in themselves, and thus do not disqualify the Society from obtaining registration as a charity under the ITA .

193                        Purpose (e), on the other hand, poses a more serious problem.  Because of its extremely broad drafting, which mandates the Society to do “all such things that are incidental or conducive to the attainment of” its other purposes, it is difficult to discern whether it is a means of fulfilment or an end in itself.  That is, while doing things that are “incidental” to the attainment of charitable purposes might safely be  treated as a means of fulfilment of the purposes, the same cannot be said of doing things that are merely “conducive” to those ends.  To say that an action is “conducive” to a result implies only that the action leads or contributes to the result, not that it is carried on only in pursuit thereof.  In other words, one purpose may be conducive to another while still remaining an end in itself, not merely a means to the fulfilment of the second purpose.  This, combined with the exceedingly vague content of purpose (e), leads me to conclude that it cannot be classified as charitable simply on the basis of its relationship to the educational purpose disclosed in purpose (a).

194                        But the inquiry cannot stop there.  In Guaranty Trust, supra, at p. 144, this Court expressed the view that the question of whether an organization was constituted exclusively for charitable purposes cannot be determined solely by reference to the objects and purposes for which it was originally established.  It is also necessary to consider the nature of the activities presently carried on by the organization as a potential indicator of whether it has since adopted other purposes.  In other words, as Lord Denning put it in Institution of Mechanical Engineers v. Cane, [1961] A.C. 696 (H.L.), at p. 723, the real question is, “for what purposes is the society at present instituted?” (Emphasis in original.) 

195                        Thus, even if I have given too restrictive or literal a reading to purpose (e) of the Society, I draw further support for my conclusion as to its non-charitable character from the nature of the activities carried out by the Society.  For example, I do not see how the provision of a job skills directory and the establishment of support groups for professionals constitute educational activities, nor do they appear to me to be “incidental” to the attainment of purpose (a) of the Society. Hence, unless they are carried out in contravention of the purposes clause, they must fall under purpose (e) as activities “conducive” to the other purposes.  However, while these may well be useful services, they are directly in furtherance of helping immigrant women to find employment, which in itself is not a charitable purpose.  This proves that the purposes of the Society can and do accommodate non-charitable activities.  They are simply too vague and indeterminate to permit the Society to qualify for charitable status under the fourth head of Pemsel.

C.   A New Approach?

196                        A finding that the Society does not satisfy the traditional requirements of charity does not exhaust its arguments.  In fact, it reserved perhaps its most forceful submissions to urge this Court to consider adopting an entirely new approach to the definition of “charitable”.  Citing reports by law reform commissions in England and Australia, the Society observed that the law of charities has historically been difficult to define and even more difficult to reform.  These commissions have typically found that the traditional definition reflects a narrow and outdated view of the type of activities which should be encouraged and protected by the law, that it provides little guidance to the ordinary citizen, and that it is reactive and unable to respond to changing societal needs.  However, their various attempts to devise either a new definition or alternative, acceptable categories have been unsuccessful.

197                        Accordingly, the Society has submitted that a new, “contextual” approach to charity should be adopted.  Such an approach, it is suggested, would respect the precedents developed in the jurisprudence, but not to the exclusion of finding new activities to be charitable.  This new approach, which would be triggered only upon an organization’s failing to meet the traditional requirements, would be to ask whether the organization is performing a “public benefit”.  There would  be no fixed definition or categories of public benefit.  Instead, the court would consider a series of questions in making the determination, including whether the activities of the organization are consistent with constitutional and Charter  values, whether the activities complement the legislative goals enunciated by elected representatives, and whether they are of a type in respect of which government spending is typically allocated. It is further suggested that such factors as vagueness and uncertainty could negate a finding of charity, but that vagueness alone would not be an automatic bar to classification as charitable because “many activities that we consider charitable are by their very nature vague and uncertain”.

198                        The Society, in support of this approach, relies upon certain passages from the decisions of the Federal Court of Appeal in Native Communications Society, supra, and  Everywoman’s Health Centre Society, supra.  At the outset, I must note that, while I am not unsympathetic to the argument that a new approach to the definition of charity would be welcome, my reading of these cases discloses nothing that could be taken to support the suggested approach.  Indeed, I must say that I find the suggestion that the Federal Court of Appeal erred in law by failing to apply what amounts to an entirely novel doctrine to be quite surprising.

199                        That aside, I also see a number of serious flaws in the approach proposed by the Society.  To begin with, the Society appears to confuse the concept of charitable purposes with that of charitable activities.  As I have already noted, any definition of charity must be concerned primarily with the former, not the latter, as the true issue is whether activities are carried on in furtherance of a charitable purpose or purposes.  Activities which may on first glance appear to be non-charitable or ambiguous may take on an entirely different character when carried on in furtherance of a purpose which is clearly charitable.

200                        Even more importantly, though, the new approach would constitute a radical change to the common law and, consequently, to tax law.  In my view, the fact that the ITA  does not define “charitable”, leaving it instead to the tests enunciated by the common law, indicates the desire of Parliament to limit the class of charitable organizations to the relatively restrictive categories available under Pemsel and the subsequent case law.  This can be seen as reflecting the preferred tax policy: given the tremendous tax advantages available to charitable organizations, and the consequent loss of revenue to the public treasury, it is not unreasonable to limit the number of taxpayers who are entitled to this status.  For this Court suddenly to adopt a new and more expansive definition of charity, without warning, could have a substantial and serious effect on the taxation system.  In my view, especially in light of the prominent role played by legislative priorities in the “new approach”, this would be a change better effected by Parliament than by the courts.

201                        Still, it is difficult to dispute that the law of charity has been plagued by a lack of coherent principles on which consistent judgment may be founded.  The Statute of Elizabeth was never intended to provide an exhaustive list of charitable purposes, and although the categories enunciated by Lord Macnaghten in Pemsel are to some extent a useful classification of what the common law has decided is charitable, they should not and have not been read strictly by the courts.  Again, the law of charity has always been treated as a “moving subject”: Scottish Burial Reform, supra, at p. 154.  But if this is to remain the case, very little assistance is provided by such standards as “in a way which the law regards as charitable” and “within the spirit and intendment of the preamble to the Statute of Elizabeth”, given their circular reasoning and retrospective bias.   In the submission of the intervener, the Canadian Centre for Philanthropy (the “Centre”), “without having available a method which allows for consideration of the underlying elements of charitable purpose, any movement forward may be frustrated”.

202                        As I have said, it would not be appropriate for the Court, in the context of this case, to adopt an entirely new definition of charity.  If this is to be done, especially for the purposes of the ITA , the specifics of the desired approach will be for Parliament to decide.  Although it is not necessary for me to comment on proposals for change, particularly since aspects of the Centre’s proposals may themselves need further clarifications and refinements, I would commend for serious consideration the general framework suggested by the Centre as potentially a useful guide for the legislator. Consistent both with the conceptual approach taken by the Ontario Law Reform Commission (albeit not with its ultimate recommendations, which advise against a legislated definition of charity) and with D’Aguiar, supra, and drawing heavily from G. H. L. Fridman’s article, “Charities and Public Benefit” (1953), 31 Can. Bar Rev. 537, at pp. 551-52, the Centre proposes an approach which focuses on whether a given project pursues a good for the benefit of strangers in a way that is practically useful.  A three-step inquiry is suggested, as follows:

(1)    Determine whether the purposes are charitable within the first three heads of Pemsel: the relief of poverty, the advancement of religion, or the advancement of education.

(2)    If not, determine whether a public benefit is offered, by examining whether

(a)       the purpose benefits an identifiable group of people, of whatever size, having a common interest;

(b)       the benefit is physical or spiritual, measurable or intangible, direct or indirect; and

(c)       the benefit is reasonably recognized and realistically to be provided, as opposed to merely speculative, putative, or hoped-for.

If these requirements are met, then a prima facie presumption of charitable purpose is raised.  If not, then proceed to determine whether the purpose falls within one of the decided anomalies under the fourth head of Pemsel.

(3)    Once a prima facie presumption of charity is established, determine whether there are grounds for holding the purpose to be non-charitable by reason of one or more of the following:

(a)       exceptions previously decided (e.g., political purpose or purpose contrary to public policy);

(b)       reasons of public policy relating to the nature of the common interest; or

(c)       a failure to be exclusively charitable because the means or activities undertaken are not primarily concerned with giving actual effect to the stated purpose or, at least, subordinate to the primary concern.

203                        As a general matter, there is much to be said for this approach, which focuses primarily on the purposes and not the activities of a given organization and respects both the established law of charity and the need for a flexible approach that will permit movement forward.  Certainly, it poses a viable solution to the interpretive problems now inherent in the law, which is preferable not only to the Society’s proposal but also to the suggestion that the Court simply add another category to the categories established by Pemsel, a suggestion which, in my view, would do little to enhance the fairness or flexibility of the law.  However, I reiterate that, even though some substantial change in the law of charity would be desirable and welcome at this time, any such change must be left to Parliament.  To be sure, the proposed change would amount to much more than merely a clarification of the law; indeed, it would likely result in a major expansion of the range of organizations that can qualify as charitable both under the ITA and otherwise.   This would go well beyond the type of incremental change to the common law which this Court has been prepared to make.

D.  Are  All of the Organization’s Resources Devoted to Charitable Activities or Does      the Organization Falls Within the Specific Exemptions of Section 149.1(6.1) or          (6.2)?

204                        It will be clear from the foregoing that I am of the view that the purposes of the Society do not restrict it to charitable activities, and thus that the Society cannot be viewed as being constituted exclusively for charitable purposes.  As such, it is unnecessary for me to decide whether all of the organization’s resources are devoted to charitable activities or whether  the organization falls within the specific exemptions of s. 149.1(6.1) or (6.2). That is, its application for registration as a charitable organization would have been properly rejected by Revenue Canada even on the basis of its purposes clause alone.  However, given the great deal of argument focused on the activities actually carried out by the Society, and despite the inevitable overlap between the discussions of purposes and activities, a few brief remarks about the nature of the Society’s activities are, I believe, appropriate at this point.

205                        Even if I were to assume that all of the Society’s stated purposes are charitable, it is clear that several of the activities detailed in its submissions to Revenue Canada, including the aforementioned job skills directory as well as networking, liaising for accreditation of credentials, soliciting job opportunities, and offering referral services, are not. These activities  cannot be said to be carried on in furtherance of, or incidental or ancillary to, any valid charitable purpose. That is, teaching women skills they require to obtain employment in Canada is one thing; publishing a directory and otherwise marketing those skills to prospective employers is quite another.  While these additional services are no doubt helpful to the members of the Society as well as, presumably, to their eventual employers, the Society has failed to show how they fall within any of the established categories of charity, either directly or by analogy.  Thus, it is impossible, in my view, to say either that the Society’s activities are actually restricted to charitable activities or that substantially all of its resources are allocated to such activities.  In fact, the opposite conclusion is indicated.

206                        In the result, I am of the view that the Society has not satisfied either of the two criteria for registration as a charity under s. 248(1)  of the ITA .  In this respect, while I differ somewhat in the reasoning involved, I am in substantial agreement with the ultimate conclusion reached by both Revenue Canada and the Federal Court of Appeal.

E.  Charter Considerations

207                        One final submission merits some consideration.  It was argued by the interveners, the Minority Advocacy and Rights Council, the Canadian Ethnocultural Council, and the Centre for Research Action on Race Relations that the rule in Pemsel, as incorporated in ss. 248(1)  and 149.1(1)  of the ITA , violates s. 15  of the Canadian   Charter of Rights and Freedoms  by discriminating against immigrant and visible minority women on the basis of the analogous ground of immigrant status as well as the enumerated grounds of race, gender, and national or ethnic origin.  Very briefly, the argument runs as follows.  The purpose of the Pemsel rule is to support socially desirable activities of registered charities for the benefit of their beneficiaries by facilitating the raising of revenue to fund these activities.  Denying the Society registration under the aforementioned subsections of the ITA  may result in its being able to raise less revenue, which means that immigrant and visible minority women may not enjoy the full range of activities that otherwise might be available to them.  The result, it is submitted, is that these women are denied benefits made available to others by virtue of “irrelevant personal characteristics”.

208                        With respect, because I see no merit to this argument, it can be dealt with briefly.  The interplay of Pemsel and the ITA results in a scheme whereby any organization, by restricting itself to charitable purposes and activities, can qualify for registration as a charitable organization.  This proposition also holds in its inverse form: every organization, to qualify for registration under s. 248(1), must restrict itself to charitable purposes and activities.  This requirement applies uniformly to every organization that seeks to be registered as charitable.  The rejection of the Society’s application for registration was a consequence of the nature of its purposes and activities, not of the characteristics of its intended beneficiaries.  In fact, as I have already stated, the personal characteristics of the class of beneficiaries would erect no barrier to the Society’s application if it could show that its purposes and activities were otherwise charitable.  Simply put, nothing in the law operates to prevent immigrant and visible minority women from forming the beneficiary class of a properly constituted charitable organization.  The denial of registration in this case has been the result not of any discrimination within the meaning of s. 15, but of the organization’s inability to bring itself within established guidelines of uniform application.

209                        Thus, I must reject the suggestion that the operation of the charitable registration scheme in the ITA  constitutes a violation of the s. 15 rights of the Society’s intended beneficiaries.

VI.  Disposition

210                        For all of the above reasons, I would dismiss the appeal, with no order as to costs.

Appeal dismissed, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.

Solicitor for the appellant: Community Legal Assistance Society, Vancouver.

Solicitor for the respondent:  George Thomson, Ottawa.

Solicitor for the interveners Minority Advocacy and Rights Council, Canadian Ethnocultural Council and Centre for Research Action on Race Relations:  Emilio S. Binavince, Ottawa.

Solicitors for the intervener the Canadian Centre for Philanthropy:  Worton & Hunter, Edmonton; Drache Burke-Robertson & Buchmayer, Ottawa.