Gonthier
J.
(dissenting
(L’Heureux-Dubé
and
McLachlin
J
J.
concurring)):
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.
I
(5th
Supp.)
(formerly
R.S.C.
1952,
c.
148).
I
have
had
the
benefit
of
reading
the
reasons
of
my
colleague
lacobucci
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
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
CITA").
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.
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
immi-
grant
&
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.
On
March
17,
1993,
the
Society
replied
to
Revenue
Canada’s
refusal
letter.
The
Society
explained
why
it
should
be
registered
under
the
IT
A,
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”.
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.
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
dis-
cuss
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,
antiracism.
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.
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”.
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
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
a
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.
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
/7A,
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.
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.
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
Income
Tax
Act,
R.S.C.,
1985,
c.
1
(5
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”
mean
an
organization,
whether
or
not
incorporated,
(a)
all
of
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)(/);
“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
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
/7A.
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.
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
British
Columbia
v.
Minister
of
National
Revenue,
[1986]
3
F.C.
471
(Fed.
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”.
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”.
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”.
Finally,
Revenue
Canada
outlined
its
most
fundamental
objection
to
the
Society’s
application
for
registration:
1
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.
Accordingly,
Revenue
Canada
denied
the
Society’s
request
for
registration
as
a
charitable
organization.
B.
Federal
Court
of
Appeal,
(1996),
96
D.T.C.
6232
(Fed.
C.A.)
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
Pemsel
v.
Special
Commissioners
of
Income
Tax,
[1891]
A.C.
531
(U.K.
H.L.),
as
developed
by
the
Federal
Court
of
Appeal
in
subsequent
cases,
including
Native
Communications
Society
of
British
Columbia,
supra,
and
Every
woman’s
Health
Centre
Society
(1988)
v.
Min-
ister
of
National
Revenue
(1991),
[1992]
2
F.C.
52
(Fed.
C.A.).
In
particular,
the
two
categories
of
the
Special
Commissioners
of
Income
Tax
scheme
under
consideration
were
the
second
(“advancement
of
education”)
and
fourth
(“other
purposes
beneficial
to
the
community”).
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”.
Second,
Décary
J.A.
held
that
the
Society’s
purposes
did
not
fit
within
the
fourth
category
of
charity
identified
by
Lord
Macnaghten
in
Special
Commissioners
of
Income
Tax.
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
of
British
Columbia,
supra.
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
Special
Commissioners
of
Income
Tax.
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
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.
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
/7A
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.
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.
Ministry
of
National
Revenue,
[1988]
2
F.C.
340
(Fed.
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”.
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
/TA,
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
/7A’s
conception
of
charity,
by
contrast,
is
uniform
federal
law
across
the
country.
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
/7A),
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
/TA.
Second,
registered
charities
pay
no
tax
on
income
(/7A,
s.
149(1
)(/)).
The
attraction
of
status
as
a
registered
charity
is
thus
obvious.
B.
Principles
Governing
the
Law
of
Charity
As
my
colleague
lacobucci
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.
I,
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
lim-
itted
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
Reliefe
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
reliefe
or
redemption
of
Prisoners
or
Captives,
and
for
aide
or
ease
of
any
poore
Inhabitants
concerninge
pay
mente
of
Fifteenes,
settinge
out
of
Souldiers
and
other
Taxes,
Whiche
Landes
Tenements
Rents
Annuities
Profitts
Hereditaments
Goodes
Chattells
Money
and
Stockes
of
Money
nevertheless
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....
In
Vancouver
Regional
FreeNet
Assn.
v.
Minister
of
National
Revenue,
[1996]
3
F.C.
880
(Fed.
C.A.)
at
p.
885,
Hugessen
J.A.
(like
Slade
J.
before
him
in
McGovern
v.
Attorney
General
(1981),
[1982]
Ch.
321
(Eng.
Ch.
Div.)
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.
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
Special
Commissioners
of
Income
Tax,
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.
As
lacobucci
J.
observes,
the
Special
Commissioners
of
Income
Tax
classification
was
approved
by
this
Court
in
Towle
Estate
v.
Minister
of
National
Revenue
(1966),
[1967]
S.C.R.
133
(S.C.C.)
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
Special
Commissioners
of
Income
Tax
classification
(though
not
describing
it
as
such)
in
Dames
du
Bon
Pasteur
v.
R.,
[1952]
2
S.C.R.
76
(S.C.C.)
at
p.
88.
The
Special
Commissioners
of
Income
Tax
classification
has
been
invoked
by
the
Federal
Court
of
Appeal
in
most
cases
in
the
area
since
then.
Two
salient
features
of
the
Special
Commissioners
of
Income
Tax
classification
scheme
bear
emphasis.
First,
the
Special
Commissioners
of
Income
Tax
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,
(1787),
29
E.R.
1183
(Eng.
Rolls
Ct.)
at
p.
1183
(“the
statute
does
not
affect
to
mention
all”),
and
has
been
followed
ever
since,
as
Russell
L.J.
confirmed
in
/nc.
Council
of
Law
Reporting
for
England
&
Wales
v.
Attorney
General,
[1972]
Ch.
73
(Eng.
C.A.)
at
p.
87.
Unlike
the
preamble,
Special
Commissioners
of
Income
Tax
provides
a
classification,
rather
than
an
enumeration,
of
charitable
purposes.
The
preamble,
as
we
have
just
seen,
is
not
exhaustive.
By
contrast,
the
Special
Commissioners
of
Income
Tax
classification
is
exhaustive:
any
purpose
which
is
charitable
must
fit
into
one
or
more
of
the
four
Special
Commissioners
of
Income
Tax
categories,
although
admittedly
the
fourth
category
is
very
broad
due
to
its
residual
nature.
Both
the
Special
Commissioners
of
Income
Tax
classification
and
the
preamble
provide
a
description
rather
than
a
definition
of
charitable
purposes.
Yet
neither
the
Special
Commissioners
of
Income
Tax
=
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
Special
Commissioners
of
Income
Tax
classification
includes
purposes
not
enumerated
in
the
preamble,
of
which
the
advancement
of
religion
is
perhaps
the
most
prominent
example.
As
well,
the
Special
Commissioners
of
Income
Tax
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.
Second,
I
underscore
that
the
Special
Commissioners
of
Income
Tax
classification
is
a
flexible
judicial
creation,
and
thus
amenable
to
subsequent
change
and
development.
The
Special
Commissioners
of
Income
Tax
scheme
has
been
described
as
“a
classification
of
convenience”
which
“must
not
be
given
the
force
of
a
statute”:
Scottish
Burial
Reform
&
Cremation
Society
v.
Glasgow
(City)
(1967),
[1968]
A.C.
138
(Scotland
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
&
Cremation
Society,
at
p.
154;
In
Strakosch,
Re,
[1949]
1
Ch.
529
(Eng.
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
Special
Commissioners
of
Income
Tax
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.
Two
central
principles
have
long
been
embedded
in
the
case
law.
Speaking
of
the
existing
Special
Commissioners
of
Income
Tax
categories,
Rand
J.
observed
in
Dames
du
Bon
Pasteur,
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.
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:
Towle
Estate,
supra,
at
p.
143
(citing
British
Launderers’
Research
Assn.
v.
Hendon
Rating
Authority
(Borough)
(1948),
[1949]
1
K.B.
462
(Eng.
C.A.)
at
p.
467),
and
Jones
v.
T.
Eaton
Co.,
[1973]
S.C.R.
635
(S.C.C.)
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
of
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).
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
(S.C.C.)
at
pp.
646-47.
The
/TA
imposes,
in
s.
149.1(1),
a
fur-
ther
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.
It
is
essential
to
appreciate,
as
my
colleague
lacobucci
J.
does,
that
the
exclusivity
requirement
does
not
quite
mean
what
it
says,
a
position
this
Court
affirmed
in
Towle
Estate,
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.
A
second
requirement
for
charitable
status
is,
as
lacobucci
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
Towle
Estate,
supra,
at
p.
141
(citing
Verge
v.
Somerville,
[1924]
A.C.
496
(New
South
Wales
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
Special
Commissioners
of
Income
Tax',
see
Commissioners
of
Inland
Revenue
v.
Baddeley,
[1955]
A.C.
572
(U.K.
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
(1947),
[1948]
A.C.
31
(U.K.
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
to
refusing
to
register
the
Society
as
a
charitable
organization.
C.
The
Proper
Test
for
Determining
the
Charitable
Nature
of
a
Purpose
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
Special
Commissioners
of
Income
Tax
classification
and
determine
whether
the
purposes
of
the
organization
under
consideration
may
be
placed
within
one
or
more
of
the
categories
contained
therein.
The
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
scheme.
As
this
Court
indicated
in
Touchet
v.
Blais,
[1963]
S.C.R.
358
(S.C.C.)
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
Foveaux,
Re,
[1895]
2
Ch.
501
(Eng.
Ch.
Div.)
at
p.
504,
“obviously
requires
caution
and
circumspection”.
The
authorities
are
littered
with
statements
bemoaning
the
confusion
that
may
result
in
the
course
of
an
analysis
of
the
fourth
head
of
the
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
classification
scheme
is
Native
Communications
Society
of
British
Columbia,
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
pur-
pose
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;
/n
re
Strakosch,
deed.
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
AntiVivisection
Society
v.
Inland
Revenue
Commissioners,
supra,
at
pages
44-45,
63).
When
considering
a
purpose
under
the
fourth
head
of
the
Special
Commissioners
of
Income
Tax
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
&
Cremation
Society,
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
&
Cremation
Society,
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
to
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.
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
(U.K.
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;
Strakosch,
Re,
supra,
at
p.
537;
Peggs
v.
Lamb,
[1994]
2
All
E.R.
15
(Eng.
Ch.
Div.)
at
p.
33.
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
(England
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
crosscheck
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.
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
Special
Commissioners
of
Income
Tax
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.
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
&
Industrial
Assn.
v.
Chester
(1974),
3
A.L.R.
486
(Australia
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
/TA’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.
The
best
approach,
in
my
view,
is
one
which
marries
adherence
to
principle
with
respect
for
the
existing
categories
as
established
by
the
Special
Commissioners
of
Income
Tax
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
(S.C.C.),
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.
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
Special
Commissioners
of
Income
Tax
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.
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
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
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
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
/7A,
but
has
no
history
in
the
common
law.
The
distinction
between
charitable
purposes
and
activities
was
identified
by
Ritchie
J.
for
this
Court
in
Towle
Estate,
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.
Minister
of
National
Revenue,
[1985]
2
F.C.
555
(Fed.
C.A.)
at
p.
579;
Toronto
Volgograd
Committee
v.
Minister
of
National
Revenue,
[1988]
3
F.C.
251
(Fed.
C.A.);
and
Ever-
ywoman’s
Health
Centre
Society,
supra.
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
1s,
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
lacobucci
J.
notes
at
para.
152
of
his
reasons.
In
determining
whether
an
organization
should
be
registered
as
a
charitable
organization,
we
must,
as
my
colleague
lacobucci
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.
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.
It
is
with
this
in
mind
that
I
consider
the
two
propositions
set
forth
by
lacobucci
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
lacobucci
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.
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
lacobucci
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.
One
theory,
which
has
obtained
some
currency
in
the
Federal
Court
of
Appeal,
takes
note
of
the
fact
that
the
/TA’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.
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.
Despite
the
language
of
the
IT
A,
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.
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
/7A
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.
R.,
[1987]
3
F.C.
286
(Fed.
C.A.)
at
p.
295,
leave
to
appeal
refused,
[1988]
1
S.C.R.
xiii
(S.C.C.).
Again,
the
key
consideration
is
the
nexus
between
the
activity
in
question
and
the
charitable
purpose
to
be
served.
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:
Ontario
(Public
Trustee)
v.
Toronto
Humane
Society
(1987),
60
O.R.
(2d)
236
(Ont.
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)).
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.
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
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
/7A.
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
Reve-
nue
Canada
may
request
written
submissions
and
further
information
from
an
applicant,
it
is
under
no
obligation
to
do
so.
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.
Minister
of
National
Revenue,
[1998]
3
F.C.
202
(Fed.
C.A.)
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.
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
STV
Stop
The
Violence...Face
The
Music
Society
v.
R.
(1996),
97
D.T.C.
5026
(Fed.
C.A.),
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.
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
/TA,
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
/TA),
registered
charities
have
obvious
ongoing
incentives
to
comply
with
the
/7A’s
requirements.
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
(Eng.
Ch.
Div.)
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.
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
Special
Commissioners
of
Income
Tax
categories,
that
1s,
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
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
categories.
Thus,
in
the
present
appeal,
the
Society
need
succeed
under
only
one
of
the
Special
Commissioners
of
Income
Tax
categories.
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
&
Enterprise
Council,
[1996]
B.T.C.
539
(Eng.
Ch.
Div.)
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
A
central
issue
in
this
appeal,
then,
is
whether
the
Society’s
purpose
fits
within
the
second
category
set
out
in
Special
Commissioners
of
Income
Tax,
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.
As
lacobucci
J.
notes,
the
“advancement
of
education”
head
of
the
Special
Commissioners
of
Income
Tax
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.
R.
(1996),
96
D.T.C.
6294
(Fed.
C.A.)
at
p.
6295.
More
recently,
in
Interfaith
Development
Education
Assn.,
Burling-
ton
v.
Minister
of
National
Revenue
(1997),
97
D.T.C.
5424
(Fed.
C.A.)
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.
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.
lacobucci
J.
relies,
at
para.
161,
upon
a
passage
from
Maclean
Hunter
Ltd.
v.
Deputy
Minister
of
National
Revenue
(Customs
&
Excise)
(1988),
88
D.T.C.
6096
(Fed.
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
Ltd.
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
Ltd."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
Ltd.
from
consideration,
but
it
does
highlight
its
limitations.
I
agree
with
my
colleague’s
proposal
to
adopt
a
more
modem
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
Central
Employment
Bureau
for
Women
&
Students’
Careers
Assn.
Inc.,
Re,
[1942]
1
All
E.R.
232
(Eng.
Ch.
Div.),
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.
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
lacobucci
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.
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
(1980),
[1981]
A.C.
1
(U.K.
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
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
classification
is
warranted
in
the
closing
years
of
the
twentieth
century.
Nor,
I
should
add,
is
that
approach
necessarily
faithful
to
the
authorities.
I
agree
with
the
definition
of
education
proposed
by
lacobucci
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.
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.
lacobucci
J.’s
position
is
that
although
the
Society’s
purpose
is
charitable
under
the
second
head
of
the
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
classification.
With
respect,
I
cannot
accept
lacobucci
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
Special
Commissioners
of
Income
Tax
categorization,
namely,
the
residual
fourth
head.
(2)
Other
Purposes
Beneficial
to
the
Community
Thus
far,
1
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
Special
Commissioners
of
Income
Tax,
namely,
“trusts
for
other
purposes
beneficial
to
the
community,
not
falling
under
any
of
the
preceding
heads”.
lacobucci
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.
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
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
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.
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
Special
Commissioners
of
Income
Tax
classification.
In
my
view,
the
Society’s
purpose
is
subsumed
within
this
subcategory.
Although
my
colleague
lacobucci
J.
is
not
persuaded,
there
appears
to
me
to
be
considerable
authority
in
support
of
this
position.
An
early
Australian
decision,
Wallace,
Re,
[1908]
V.L.R.
636
(Australia
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.
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
Every
woman's
Health
Centre
Society,
supra,
at
pp.
67-68.
In
Stone.
Re
(1970),
91
W.N.
Covers
(N.S.W.)
704
(New
South
Wales
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
lacobucci
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.
lacobucci
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
lacobucci
J.
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,
lacobucci
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,
counseling,
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.
Similarly,
the
relief
and
assistance
of
refugees
was
recognized
as
a
charitable
purpose
in
Cohen.
Re,
[1954]
N.Z.L.R.
1097
(New
Zealand
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
Special
Commissioners
of
Income
Tax
classification.
Again,
in
Morrison,
Re
(1967),
111
Sol.
Jo.
758,
117
New
L.J.
757
(Eng.
Ch.
Div.),
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.
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.
Canadian
authority
recognizes
assisting
immigrants
to
obtain
employment
as
a
charitable
purpose.
In
Re
Fitzgibbon
(1916),
27
O.W.R.
207,
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
Special
Commissioners
of
Income
Tax
classification,
and
I
do
not
read
the
decision
as
not
following
the
Special
Commissioners
of
Income
Tax
approach.
Middleton
J.
did
rely
on
Mariette,
Re,
[1915]
2
Ch.
284
(Eng.
Ch.
Div.),
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.
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.
I
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.
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
educaation
[sic].
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
Special
Commissioners
of
Income
Tax.
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
de-
veloping
and
acquiring
vocational
skills,
so
that
they
may
obtain
employment.
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
Special
Commissioners
of
Income
Tax
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).
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
Special
Commissioners
of
Income
Tax
classification.
Accordingly,
in
my
view,
this
appeal
does
not
require
us
to
consider
the
applicability
of
the
Native
Communications
Society
of
British
Columbia
case.
The
present
appeal
may
be
disposed
of
without
having
to
determine
whether
or
not
immigrant
women
are
in
any
way
analogous
to
native
peo-
pie,
because
the
Society’s
purpose
fits
within
a
recognized
subcategory
of
the
fourth
head
of
the
Special
Commissioners
of
Income
Tax
classification.
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,
1
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?
Having
established
that
the
Society’s
purpose
is
charitable
under
either
the
second
or
the
fourth
head
of
the
Special
Commissioners
of
Income
Tax
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.
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
Special
Commissioners
of
Income
Tax
classification.
I
do
not
see
how
these
activities
can
be
viewed
as
other
than
directly
connected
to
achieving
that
purpose.
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.
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
/7A.
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-charita-
ble)
(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?
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
Special
Commissioners
of
Income
Tax
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.
It
is
well
established
under
the
fourth
head
of
the
Special
Commissioners
of
Income
Tax
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.
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
(Tarnopol-
sky
J.A.,
concurring).
That
question
may
be
left
for
another
day.
H.
Is
the
Society’s
Purpose
Too
Political
to
Be
Charitable?
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.
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
/TA.
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.
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
Notre
Dame
de
Grâce
Neighbourhood
Assn.
v.
Minister
of
National
Revenue
(1988),
88
D.T.C.
6279
(Fed.
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
/TA,
and
by
the
case
law:
see
Ontario
(Public
Trustee)
v.
Toronto
Humane
Society,
supra,
at
pp.
254-55.
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
/7A
or
the
political
purposes
doctrine.
In
Towle
Estate,
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?
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
lacobucci
J.
takes
the
same
view,
and
ultimately
decides
the
present
appeal
on
a
particular
application
of
this
ground.
I
cannot
agree.
An
allegation
of
vagueness
often
arises
with
regard
to
organizations
that
seek
to
fit
their
purposes
or
activities
within
the
fourth
head
of
the
Special
Commissioners
of
Income
Tax
test.
The
Federal
Court
of
Appeal
recently
emphasized,
in
STV
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
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
Koeppler
Will
Trusts,
Re,
(1985),
[1986]
Ch.
423
(Eng.
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).
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
“ambigu-
ous”,
as
Lord
Radcliffe
indicated
in
Institution
of
Mechanical
Engineers
v.
Cane
(1960),
[1961]
A.C.
696
(U.K.
H.L.)
at
pp.
718-19.
One
should
not
aspire
to
an
unrealistic
degree
of
precision
in
such
matters.
In
Native
Communications
Society
of
British
Columbia,
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
lacobucci
J.
acknowledged
for
this
Court
in
Communities
Economic
Development
Fund
v.
Canadian
Pickles
Corp.,
[1991]
3
S.C.R.
388
(S.C.C.)
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
ID),
is
thus
placed
in
an
extremely
awkward
position.
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.
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
paras.
(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.
I
consider
D
Aguiar
to
be
easily
distinguishable
from
the
facts
of
the
present
appeal.
In
D
Aguiar,
paras.
(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
lacobucci
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.
Ultimately,
the
basis
upon
which
lacobucci
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.
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.
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.
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.
Second,
my
colleague’s
argument
is
answered
by
this
Court’s
decision
in
Towle
Estate,
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
(Can.
Ex.
Ct.)).
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
Towle
Estate
for
the
simple
reason
that
the
Court
considered
it
to
raise
no
concerns.
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?
The
Society
and
the
interveners
invited
this
Court
to
modify
the
existing
categorization
of
charitable
purposes
set
out
in
Special
Commissioners
of
Income
Tax
in
favour
of
a
broader
test.
Given
my
view
that
the
existing
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
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.
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
/TA
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
(S.C.C.)
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.
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.
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
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
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
For
all
of
the
above
reasons,
I
would
allow
the
appeal,
with
costs.
lacobucci
J.
(Cory,
Major,
Bastarache
J
J.
concurring):
I.
Introduction
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
(5
Supp.)
(formerly
R.S.C.
1952,
c.
148).
II.
Background
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
/TA
(s.
149(
1
)(/)
and
(/),
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,
mean-
ing
that
the
capacity
to
offer
tax
benefits
to
prospective
donors
can
be
a
major
determinant
of
the
success
of
such
an
organization.
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
/TA.
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
and
visible
minority
women,
on
the
needs
and
concerns
of
immigrant
and
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.
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
résumé
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”.
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,
antiracism.
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.
f
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.
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,
systemic
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.
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.”
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
IT
A,
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
British
Columbia
v.
Minister
of
National
Revenue,
[1986]
3
F.C.
471
(Fed.
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
IT
A.
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,
solicit-
ing
job
opportunities,
and
maintaining
a
job
skills
directory
as
non-
charitable.
The
Federal
Court
of
Appeal
dismissed
the
Society’s
appeal:
(1996),
96
D.T.C.
6232
(Fed.
C.A.).
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
Pemsel
v.
Special
Commissioners
of
Income
Tax,
[1891]
A.C.
531
(U.K.
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.
6232).
As
to
public
benefit,
Décary
J.A.,
like
Revenue
Canada,
rejected
the
analogy
to
Native
Communications
Society
of
British
Columbia,
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?”,
De’cary
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.
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
(England
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’”.
III.
Relevant
Statutory
Provisions
Income
Tax
Act,
R.S.C.,
1985,
c.
1
(5
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
(I
),
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
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
ITAl
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
As
I
have
already
explained,
s.
248(
I
)
of
the
IT
A
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
/7A,
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.
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
Pornogra-
phy
v.
Ministry
of
National
Revenue,
[1988]
2
F.C.
340
(Fed.
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.
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
Special
Commissioners
of
Income
Tax,
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
Maurice
v.
Bishop
of
Durham
(1805),
10
Ves.
Jun.
522,
32
E.R.
947
(Eng.
Ch.
Div.)
at
p.
951,
on
appeal
from
the
decree
of
the
Master
of
the
Rolls
(1804),
9
Ves.
Jun.
399,
32
E.R.
656
(Eng.
Ch.
Div.),
which
was:
I
st,
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.
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
(1981),
[1982]
Ch.
321
(Eng.
Ch.
Div.),
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
universi-
ties;
repairs
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.
However,
it
is
important
to
recall
Lord
Macnaghten’s
understanding
of
the
status
of
the
preamble.
In
Special
Commissioners
of
Income
Tax,
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
ion
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.
the
At
the
am
time
it
ha
ver
been
forgotten
that
the
"objects
there
enumerated?
as
Lord
Chancellor
Cranworth
observes^
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
&
Cremation
Society
v.
Glasgow
(City)
(1967),
[1968]
A.C.
138
(Scotland
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.
The
Supreme
Court
of
Canada
implicitly
adopted
the
Special
Commissioners
of
Income
Tax
classification
in
Dames
du
Bon
Pasteur
v.
R.,
[1952]
2
S.C.R.
76
(S.C.C.),
and
explicitly
approved
of
it
in
Towle
Estate
v.
Minister
of
National
Revenue
(1966),
[1967]
S.C.R.
133
(S.C.C.).
However,
in
Guarantee
Trust
this
Court
also
noted,
citing
with
approval
Verge
v.
Somerville,
[1924]
A.C.
496
(New
South
Wales
P.C.)
at
p.
499,
that
the
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax
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
Dames
du
Bon
Pasteur,
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”.
The
difference
between
the
Special
Commissioners
of
Income
Tax
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
Special
Commissioners
of
Income
Tax.
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.
Although
the
Special
Commissioners
of
Income
Tax
approach
has
been
applied
countless
times
by
Canadian
courts,
both
prior
and
subsequent
to
Guarantee
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.
Minister
of
National
Revenue,
[1998]
3
F.C.
202
(Fed.
C.A.)
at
p.
214,
the
definition
of
charity
“remains
...
an
area
crying
out
for
clarification
through
Canadian
legislation
for
the
guidance
of
taxpayers,
administrators,
and
the
courts”.
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
(S.C.C.)
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.
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
/7A
makes
between
charitable
and
non-profit
organizations.
Non-profit
organizations,
according
to
s.
149(1
)(/),
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
pro-
prietor,
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.
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
Towle
Estate,
supra,
that
the
inquiry
must
focus
not
only
on
the
activities
of
an
organization
but
also
on
its
purposes.
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.
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
/7A,
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.
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
/7A
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).
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
Assn.
v.
Hendon
Rating
Authority
(Borough)
(1948),
[1949]
1
K.B.
462
(Eng.
C.A.)
at
pp.
467-68,
as
adopted
by
this
Court
in
Towle
Estate,
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.]
In
Towle
Estate,
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.)
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
1s,
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.
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
Special
Commissioners
of
Income
Tax,
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
The
Society
submits
that
its
purposes
clause
restricts
it
to
activities
which
qualify
as
charitable
either
under
the
second
heading
in
Special
Commissioners
of
Income
Tax,
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
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
Assn.,
Burlington
v.
Minister
of
National
Revenue
(1997),
97
D.T.C.
5424
(Fed.
C.A.),
as
well
as
Briarpatch
Inc.
v.
R.
(1996),
96
D.T.C.
6294
(Fed.
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
(Customs
&
Excise)
(1988),
88
D.T.C.
6096
(Fed.
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.
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”.
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.
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.
I
do
not
endorse
Robertson
J.A.’s
approval,
in
Briarpatch,
supra,
of
the
definition
of
“education”
found
in
Maclean
Hunter
Ltd.,
supra,
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
Part
III,
Sch.
Ill,
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.
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
(1980),
[1981]
A.C.
1
(U.K.
H.L.)
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
Naish
v.
Francis
Bacon
Society
Inc.,
[1964]
3
All
E.R.
46
(Eng.
Ch.
Div.),
and
Scottish
Burial
Reform
&
Cremation
Society,
supra.
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:
Koeppler
Will
Trusts,
Re
(1985),
[1986]
Ch.
423
(Eng.
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:
Societa
Unita
v.
Gravenhurst
(Town)
(1977),
16
O.R.
(2d)
785
(Ont.
H.C.),
aff’d
(1978),
6
M.P.L.R.
172
(Ont.
Div.
Ct.).
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
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
(S.C.C.),
and
Salituro,
supra.
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.
As
the
Ontario
Law
Reform
Commission
(“OLRC”)
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.
That
is
not
to
say
that
education
should
be
broadened
beyond
recognition,
however.
Even
while
advocating
a
more
inclusive
approach
to
education,
the
OLRC
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.
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.
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.
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.
(1950),
[1951]
A.C.
297
(U.K.
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
In
Native
Communications
Society
of
British
Columbia,
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.
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
Special
Commissioners
of
Income
Tax.
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.
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.
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.
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.
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.
In
Stone,
Re
(1970),
91
W.N.
Covers
(N.S.W.)
704
(New
South
Wales
S.C.),
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
rea-
soning
to
support
this
statement,
and
would
therefore
confine
the
decision
to
the
context
of
Jewish
settlement
in
Israel.
Another
case
cited
by
my
colleague
is
Wallace,
Re,
[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.
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.
Minister
of
National
Revenue
(1991),
[1992]
2
F.C.
52
(Fed.
C.A.),
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.
I
would
also
distinguish
the
case
at
bar
from
Cohen,
Re,
[1954]
N.Z.L.R.
1097
(New
Zealand
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
Morrison,
Re
(1967),
111
Sol.
Jo.
758,
117
New
L.J.
757
(Eng.
Ch.
Div.).
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.
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
job
market”.
To
my
mind,
these
factors
go
to
the
relief
of
poverty.
Indeed,
in
Central
Employment
Bureau
for
Women
&
Students'
Careers
Assn.
Inc.,
Re,
[1942]
1
All
E.R.
232
(Eng.
Ch.
Div.)
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.
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
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.
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.
The
only
Canadian
authority
provided
to
me
is
Re
Fitzgibbon
(1916),
27
O.W.R.
207
(Ont.
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
Special
Commissioners
of
Income
Tax
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.
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
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.
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
“incidental
and
ancillary”
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.
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
/TA.
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).
But
the
inquiry
cannot
stop
there.
In
Towle
Estate,
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
(1960),
[1961]
A.C.
696
(U.K.
H.L.)
at
p.
723,
the
real
question
1s,
“for
what
purposes
is
the
society
at
present
instituted?”
(Emphasis
in
original.)
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
Special
Commissioners
of
Income
Tax.
C.
A
New
Approach?
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.
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”.
The
Society,
in
support
of
this
approach,
relies
upon
certain
passages
from
the
decisions
of
the
Federal
Court
of
Appeal
in
Native
Communications
Society
of
British
Columbia,
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.
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.
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
/7A
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
Special
Commissioners
of
Income
Tax
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.
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
Special
Commissioners
of
Income
Tax
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
&
Cremation
Society,
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
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”.
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
refine-
merits,
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
OLRC
(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.
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
via-
ble
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
Special
Commissioners
of
Income
Tax,
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
/7A
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)?
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.
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
ob-
tain
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.
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
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
Special
Commissioners
of
Income
Tax,
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
Special
Commissioners
of
Income
Tax
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”.
With
respect,
because
I
see
no
merit
to
this
argument,
it
can
be
dealt
with
briefly.
The
interplay
of
Special
Commissioners
of
Income
Tax
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.
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
For
all
of
the
above
reasons,
I
would
dismiss
the
appeal,
with
no
order
as
to
costs.
Appeal
dismissed.
Email this Content