Date: 20081017
Docket: A-38-08
Citation: 2008 FCA 311
PRESENT: RYER
J.A.
BETWEEN:
CHOSON KALLAH FUND OF TORONTO
Applicant
and
THE MINISTER OF NATIONAL
REVENUE
Respondent
REASONS FOR ORDER
[1]
This is an
application by Choson Kallah Fund of Toronto
(the “Fund”), pursuant to paragraph 168(2)(b) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.) (the “ITA”), for an order extending
the period of time that must expire before the Minister of National Revenue
(the “Minister”) is permitted to publish a copy of the notice of intention to
revoke the registration of the Fund as a registered charity (the “Notice of
Intent to Revoke”), which was given by the Minister on December 21, 2007, in
accordance with subsection 168(1) of the ITA, until the conclusion of the
process that commenced with the filing by the Fund of a notice of objection (the
“Notice of Objection”) to the Notice of Intent to Revoke, pursuant to
subsection 168(4) of the ITA.
[2]
To succeed
in this application, the Fund must establish that each of the requirements of
the tripartite test set forth in RJR−MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 have
been met. (See International Charity Association Network v. Minister of
National Revenue, 2008 FCA 114 (“ICAN”).) Thus, the Fund must
demonstrate that there is a serious issue to be tried, it will suffer
irreparable harm if the requested order is not granted and the balance of
convenience favours granting the order.
Serious Issue to be Tried
[3]
The Crown
does not dispute that this element of the test is present and I am of the view
that the low threshold with respect to this element has been made out.
Irreparable Harm
[4]
With
respect to this element of the test, Sopinka and Cory JJ. stated at page 341 of
RJR-MacDonald:
At this stage the only
issue to be decided is whether a refusal to grant relief could so adversely
affect the applicants’ own interests that the harm could not be remedied if the
eventual decision on the merits does not accord with the result of the
interlocutory application.
“Irreparable” refers to
the nature of the harm suffered rather than its magnitude. It is harm which
either cannot be quantified in monetary terms or which cannot be cured, usually
because one party cannot collect damages from the other. Examples of the former
include instances where one party will be put out of business by the court’s
decision (R.L. Crain Inc. v. Hendry (1988), 48 D.L.R. (4th) 228 (Sask.
Q.B.)); where one party will suffer permanent market loss or irrevocable damage
to its business reputation (American Cyanamid, supra); or where a permanent
loss of natural resources will be the result when a challenged activity is not
enjoined (MacMillan Bloedel Ltd. v. Mullin, [1985] 3 W.W.R. 577
(B.C.C.A.)). The fact that one party may be impecunious does not automatically
determine the application in favour of the other party who will not ultimately
be able to collect damages, although it may be a relevant consideration (Hubbard
v. Pitt, [1976] Q.B. 142 (C.A.)).
[5]
In Haché
v. Canada (Minister of Fisheries and Oceans), 2006 FCA
424, [2006] F.C.J. No. 1886 (QL), this Court described the requirements that
must be established with respect to this element of the test. At paragraph 11
of that decision, Desjardins J.A. stated:
The moving
parties must demonstrate, on a balance of probabilities, that the harm that
they would suffer is irreparable: Halford v. Seed Hawk Inc., 2006 FCA
167 at paragraph 12. Mere assertions do not suffice. Irreparable harm cannot be
inferred. It must be established by clear and compelling evidence: A. Lassonde
Inc. v. Island Oasis Canada Inc., [2001] 2 F.C. 568 at paragraph 20.
[6]
The Fund
argues that the revocation of its status as a registered charity, which is
expected to occur if the requested order is not granted, will cause it to
suffer irreparable harm. This is so, according to the Fund, because the
inability to issue income tax receipts for donations, which will result from
the revocation of its charitable registration, will lead to its receiving fewer
donations. As a result, the Fund contends that its ability to engage in ongoing
charitable works will diminish.
[7]
The Fund
provided no direct evidence to support these contentions. Instead, the Fund
referred to various portions of the transcript of the cross-examination of Ms.
Holly Brant of the Canada Revenue Agency on her affidavit that is included in
the Crown’s record. The Fund argued that these passages establish that in each
of the years in which the Fund had no involvement with the Canadian
Humanitarian Trust donation program, the Fund typically received donations of
several millions of dollars and that those donations were distributed in
amounts of a few thousand dollars to a number of needy recipients.
[8]
I am
prepared to accept that the evidence establishes these assertions as facts. However,
these facts are largely historical and, in and of themselves, do not establish
that the Fund will suffer irreparable harm if the Crown is permitted to proceed
with the revocation of the registration of the Fund as a registered charity.
[9]
The Fund further
contends that the inability to issue official donation receipts that will flow
from such a revocation will, of necessity, result in it receiving fewer
donations. While this proposition appears sensible, accepting it as a proven
fact does not necessitate the conclusion that the Fund will suffer any harm at
all from the receipt of a smaller amount of donated funds. In my view, the
record before the Court contains nothing that would indicate how or why the
receipt of donations smaller in amount than those previously received by the
Fund would cause any harm to the Fund that could be considered to be
irreparable.
[10]
The
pattern of the Fund is to disburse the funds it receives from donations in
relatively small amounts, presumably to a relatively large number of
recipients. If the Fund receives less money from donations, it would appear
that the Fund would only be able to disburse the smaller amounts received,
presumably to a smaller number of recipients. In my view, these circumstances, even
if they were established, would not constitute compelling evidence of
irreparable harm to the Fund.
[11]
I note
that the record contains no evidence of the current financial position of the
Fund. Such evidence might have disclosed the presence or absence of liquid and
fixed assets, as well as obligations to provide funding for on-going charitable
programs of a size that might be affected by the receipt of smaller amounts of
donations. In the absence of any evidence as to the current financial position
of the Fund, I am unable to conclude that the receipt of donations at levels
lower than those received by the Fund in prior years would have any impact upon
the Fund, other than enabling it to distribute a smaller amount of money to
needy persons.
[12]
For these
reasons, I conclude that the Fund has failed to establish that it will suffer
irreparable harm if the requested order is not granted. It follows, in my view,
that the failure of the Fund to establish this element of the RJR-MacDonald
test leads to the conclusion that the application must be dismissed.
Balance of Convenience
[13]
Because
the Fund has failed to persuade me that the irreparable harm element of the
test has been met, I am not required to consider this element of the test.
DISPOSITION
[14]
For the
foregoing reasons, I am of the view that all of the elements in the RJR-MacDonald
test have not been satisfied and, accordingly, the application for the
requested order should be dismissed, with costs.
“C.
Michael Ryer”
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