Date: 20110307
Dockets: A-36-11
A-37-11
Citation: 2011 FCA 71
CORAM: EVANS J.A.
DAWSON J.A.
TRUDEL
J.A.
Docket: A-36-11
BETWEEN:
OPERATION
SAVE CANADA TEENAGERS
Appellant
and
MINISTER OF NATIONAL REVENUE
(CANADA REVENUE AGENCY)
Respondent
Docket: A-37-11
AND
BETWEEN:
REVIVAL TIME MINISTRIES
INTERNATIONAL
Appellant
And
MINISTER OF NATIONAL REVENUE
Respondent
Dealt with in writing without appearance
of parties.
Order delivered at Ottawa, Ontario,
on March 7, 2011.
REASONS
FOR ORDER BY: EVANS
J.A.
CONCURRED
IN BY:
DAWSON J.A.
TRUDEL J.A.
Date: 20110307
Dockets: A-36-11
A-37-11
Citation: 2011 FCA 71
CORAM: EVANS
J.A.
DAWSON J.A.
TRUDEL
J.A.
Docket: A-36-11
BETWEEN:
OPERATION SAVE CANADA TEENAGERS
Appellant
and
MINISTER OF NATIONAL REVENUE
(CANADA REVENUE AGENCY)
Respondent
Docket: A-37-11
AND
BETWEEN:
REVIVAL TIME MINISTRIES INTERNATIONAL
Appellant
And
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER
Introduction
[1]
Operation
Save Canada Teenagers (Operation Save) and the Minister of National Revenue
(Minister) have each brought a motion in connection with the Minister’s
revocation of Operation Save’s registration as a charity (Court File No.
A-36-11).
[2]
Revival
Time Ministries International (Revival Time) and the Minister have brought
materially identical motions in connection with the Minister’s revocation of
Revival Time’s registration as a charity (Court File No. A-37-11).
[3]
The
motions of Operation Save and Revival Time request the reinstatement of their
status as registered charities, and a stay of the revocation pending the issue
and determination of notices of objection to the revocation.
[4]
The
Minister’s motions request that the appeals to this Court of Operation Save and
Revival Time against the revocations be quashed as being beyond its statutory
jurisdiction.
[5]
The
Reverend Daniel Mokwe is the President of both Operation Save and Revival Time.
These reasons apply to both files and a copy shall be inserted in both.
Background
[6]
On
November 16, 2010, the Minister issued to Revival Time a notice of intention to
revoke its status as a registered charity pursuant to subsection 149.1(2) of
the Income Tax Act, R. S. C. 1985, c. 1 (5th Supp.) (Act). The Notice
set out the bases of the Minister’s view, formed after conducting
investigations, that Revival Time was not in compliance with the requirements
of the Act for registration as a charity.
[7]
Paragraph
168(2)(b) of the Act sets out the next step in the process, as relevant
to the present proceedings.
|
168. (2) Where the Minister
gives notice under subsection 168(1) to a registered charity or to a
registered Canadian amateur athletic association,
…
(b) in any other
case, the Minister may, after the expiration of 30 days from the day of
mailing of the notice, or after the expiration of such extended period from
the day of mailing of the notice as the Federal Court of Appeal or a judge of
that Court, on application made at any time before the determination of any
appeal pursuant to subsection 172(3) from the giving of the notice, may fix
or allow, publish a copy of the notice in the Canada Gazette,
and on that publication of
a copy of the notice, the registration of the charity or association is
revoked
|
168. (2) Le ministre doit, dans
le cas de l’alinéa a), et peut, dans les autres cas, publier dans la
Gazette du Canada copie de l’avis prévu au paragraphe (1). Sur publication de
cette copie, l’enregistrement de l’organisme de bienfaisance ou de
l’association canadienne de sport amateur est révoqué. La copie de l’avis
doit être publiée dans les délais suivants :
[…]
b)
dans les autres cas, soit 30 jours après la mise à la poste de l’avis, soit à
l’expiration de tout délai supérieur à 30 jours courant de la mise à la poste
de l’avis que la Cour d’appel fédérale ou l’un de ses juges fixe, sur demande
formulée avant qu’il ne soit statué sur tout appel interjeté en vertu du
paragraphe 172(3) au sujet de la signification de cet avis
|
[8]
Pursuant to this
provision, the
Minister published in the Canada Gazette on January 8, 2011, a copy of
the Notice issued to Revival Time, which thereby ceased to be a registered
charity as of that date.
[9]
The facts
relating to Operation Save are materially identical, except that the Notice was
issued to it on November 23, 2010, and a copy was published in the Canada
Gazette on January 15, 2011, when Operation Save’s registration as a
charity was revoked.
Motions
by Operation Save and Revival Time
[10]
On January
18, 2011, Operation Save and Revival Time filed motions to reinstate their
registration as charities, and to stay the revocations pending the issue and
determination of notices of objection.
[11]
These
motions must fail. Operation Save and Revival Time had not applied to the Court
under paragraph 168(2)(b) for an extension of the 30 day period from the
issue of the Notices to their publication in the Gazette. Since the
Notices have already been published in the Gazette, and the registration
of Operation Save and Revival Time as charities has been revoked, the time for
applying for a stay of the publication of the Notices under paragraph 168(2)(b)
has necessarily expired. The Act contains no other provision for a stay applicable
to the present facts.
Motions by the Minister
[12]
The
Minister moves to quash the appeals by Operation Save and Revival Time to have
the Notices of Intention set aside, on the ground that, on the present facts,
there is no right of appeal against them.
[13]
The only
right of appeal to this Court from a decision by the Minister to revoke the
registration of charitable status arises under subsection 172(3). However, an
appeal under this provision only lies after the entity that was registered as a
charity has served a notice of objection on the Minister pursuant to subsection
168(4), and the Minister either confirms the decision to revoke, or does not
confirm or vacate it within 90 days from service of the notice of objection.
[14]
Since
rights of appeal are purely creatures of statute, and neither Operation Save
nor Revival Time has yet issued a notice of objection, the Court has no
jurisdiction at this time to entertain their appeals pursuant to paragraph
172(3)(a.1). Accordingly, the appeals must be quashed.
Order
[15]
For the
above reasons, the Court hereby orders:
a. The motions of Operation Save
and Revival Time to reinstate their registration as charities and to stay the
revocations pending the issue and determination of notices of objection are
dismissed; and
b. The motions by the Minister to
quash the appeals of Operation Save and Revival Time are granted and the
appeals quashed, but without prejudice to their right to appeal under
subsection 172(3), in accordance with subsection 168(4).
“John
M. Evans”
“I
agree
Eleanor
R. Dawson, J.A.”
“I
agree
Johanne
Trudel J.A.”
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