Court headnote

Vancouver Society of Immigrant and Visible Minority Women v. M.N.R.
Collection
Supreme Court Judgments
Date
1999-01-28
Report
[1999] 1 SCR 10
Case number
25359
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Taxation
Notes
SCC Case Information: 25359
Decision Content
Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., [1999] 1 S.C.R. 10
Vancouver Society of Immigrant and
Visible Minority Women Appellant
v.
Minister of National Revenue Respondent
and
Minority Advocacy and Rights Council,
Canadian Ethnocultural Council,
Centre for Research Action on Race Relations
and Canadian Centre for Philanthropy Interveners
Indexed as: Vancouver Society of Immigrant and Visible Minority Women v. M.N.R.
File No.: 25359.
1998: February 23; 1999: January 28.
Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.
on appeal from the federal court of appeal
Taxation -- Charities -- Registered charities -- Society applying for registration as a charitable organization -- Society’s primary purpose being to provide educational forums, classes, workshops and seminars to immigrant and visible minority women to enable them to find employment -- Whether purpose for “advancement of education” or “beneficial to community” -- Whether society’s purposes exclusively charitable -- Whether common law definition of charity should be revised -- Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 149.1(1) , 248(1) .
Constitutional law -- Charter of Rights -- Equality rights -- Charitable registration scheme -- Society assisting immigrant and visible minority women denied charitable tax status under Income Tax Act -- Whether charitable registration scheme violates equality rights of society’s intended beneficiaries -- Canadian Charter of Rights and Freedoms, s. 15 -- Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 149.1(1) , 248(1) .
The appellant Society applied to the Minister of National Revenue for registration as a charitable organization under ss. 149.1(1) and 248(1) of the Income Tax Act . The Society’s purposes, as stated in its amended constitution, were “(a) to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment; (b) to carry on political activities provided such activities are incidental and ancillary to the above purposes and provided such activities do not include direct or indirect support of, or opposition to, any political party or candidate for public office; (c) to raise funds in order to carry out the above purposes by means of solicitations of funds from governments, corporations and individuals; and (e) to provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.” The Society described its activities as providing a “public benefit” through services and workshops designed to “advance education”. The Society’s activities included a “career and vocational counselling service” to assist women in obtaining employment, and assistance in such practical skills as résumé writing and interview skills as well as activities such as networking, soliciting job opportunities, maintaining a job skills directory, liaising for accreditation of foreign credentials and offering referral services. Revenue Canada rejected the Society’s application mainly because it was not convinced that the organization was constituted exclusively for charitable purposes, as required for registration under the Act. The Federal Court of Appeal dismissed the Society’s appeal.
Held (L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Cory, Iacobucci, Major and Bastarache JJ.: For an organization to qualify for registration under s. 248(1) of the Income Tax Act : (1) the purposes of the organization must be charitable, and must define the scope of the activities engaged in by the organization; and (2) all of the organization’s resources must be devoted to these activities unless the organization falls within the specific exemptions of s. 149.1(6.1) or (6.2) . Since the Act does not define “charitable”, Canadian courts have consistently applied the Pemsel test to determine that question. The Pemsel classification is generally understood to refer to the preamble of the Statute of Elizabeth, which gave examples of charitable purposes. While the courts have always had the jurisdiction to decide what is charitable and were never bound by the preamble, the law of charities has proceeded by way of analogy to the purposes enumerated in the preamble. The Pemsel classification is subject to the consideration that the purpose must also be “for the benefit of the community or of an appreciably important class of the community” rather than for private advantage.
While the definition of “charitable organization” in s. 149.1(1) focuses on “charitable activities” rather than purposes, it is really the purpose in furtherance of which an activity is carried out, not the character of the activity itself, that determines whether or not the activity is of a charitable nature. Accordingly, in making that determination, the inquiry must focus not only on the activities of an organization but also on its purposes. Subject to the exemptions provided by s. 149.1(6.1) and (6.2) , s. 149.1(1) requires that all of the purposes and activities of the organization be charitable. However, even the pursuit of a purpose which would be non-charitable in itself may not disqualify an organization from being considered charitable if it is pursued only as a means of fulfilment of another, charitable purpose and not as an end in itself.
Under the traditional approach, the “advancement of education” head of the Pemsel classification is generally limited in Canada to the “formal training of the mind” or the “improvement of a useful branch of human knowledge”. While purpose (a) -- the primary purpose of the Society -- would not qualify as charitable under the traditional approach as it seems to lack the element of systematic instruction, there is no logical or principled reason why a more expansive definition of education for the purposes of the law of charity should not be adopted. To limit the notion of “training of the mind” to structured, systematic instruction or traditional academic subjects reflects an outmoded and underinclusive understanding of education which is of little use in modern Canadian society. So long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education. Education should not be broadened beyond recognition but the law ought to accommodate any legitimate form of education. Here, purpose (a) is charitable under the proposed more expansive definition of education. The purpose is to train the minds of immigrant women in certain important life skills, with a specific end in mind: equipping them to find and secure employment in Canada. Moreover, certain activities carried out in furtherance of this purpose, such as the provision of the educational programs contemplated by the purposes clause, are undoubtedly charitable within this expanded definition, whether or not they have the quality of systematic instruction traditionally associated with education in the charitable sense. The purpose also satisfies the requirement that it benefit “the community or . . . an appreciably important class of the community”.
To bring a purpose within the fourth head of Pemsel, more is required than simple “public benefit”, in the ordinary sense of the term. It is incumbent upon the Society to explain just how its purposes are beneficial in a way the law regards as charitable. To assess whether an organization’s purposes are charitable under that head, a court should: (1) consider the trend of those decisions which have established certain objects as charitable under this heading, and ask whether, by reasonable extension or analogy, the instant case may be considered to be in line with these; (2) examine certain accepted anomalies to see whether they fairly cover the objects under consideration; and (3) ask whether, consistently with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity; if so, the argument for charity must fail. To this approach must be added the general requirement that the purpose also be “for the benefit of the community or of an appreciably important class of the community”. This approach indicates that the Society’s purpose (a) is not charitable under the fourth head. No “trend” can be discerned from previous decisions recognizing that assisting immigrant women to integrate into society through helping them to obtain employment is a charitable purpose under the fourth head of charity. Purpose (a) should therefore be characterized solely in terms of education.
A valid charitable organization must be constituted exclusively for charitable purposes. While political purposes are not generally considered charitable, the Society’s purposes clause makes clear that the sole purpose of carrying out political activities and raising funds under clause 2(b) and (c) is to facilitate a valid educational purpose. Accordingly, purposes (b) and (c) can be taken as means to the fulfilment of purpose (a), not ends in themselves, and thus do not disqualify the Society from obtaining registration as a charity under the Act. It is difficult, however, to discern whether purpose (e) is a means of fulfilment or an end in itself because of its extremely broad wording, which mandates the Society to do “all such things that are incidental or conducive to the attainment of” its other purposes. One purpose may be conducive to another while still remaining an end in itself, not merely a means to the fulfilment of the second purpose. This, combined with the exceedingly vague content of purpose (e), leads to the conclusion that it cannot be classified as charitable simply on the basis of its relationship to the educational purpose disclosed in purpose (a). Furthermore, the question of whether an organization was constituted exclusively for charitable purposes cannot be determined solely by reference to the objects and purposes for which it was originally established. It is also necessary to consider the nature of the activities presently carried on by the organization as a potential indicator of whether it has since adopted other purposes. Here, the nature of the activities carried out by the Society further supports the conclusion as to the non-charitable character of purpose (e). The provision of a job skills directory and the establishment of support groups for professionals do not constitute educational activities, nor do they appear to be “incidental” to the attainment of purpose (a) of the Society. They must fall under purpose (e) as activities “conducive” to the other purposes. However, while these may well be useful services, they are directly in furtherance of helping immigrant women to find employment, which in itself is not a charitable purpose. The purposes of the Society therefore can and do accommodate non-charitable activities. They are simply too vague and indeterminate to permit the Society to qualify for charitable status under the fourth head of Pemsel. In the result, the Society has not satisfied either of the two criteria for registration as a charity under s. 248(1) of the Act. While some of the Society’s purposes contemplate charitable activities, they do not restrict the Society to charitable activities alone.
Even though some substantial change in the law of charity would be desirable and welcome at this time, it would not be appropriate for the Court, in the context of this case, to adopt an entirely new definition of charity. If this is to be done, especially for the purposes of the Income Tax Act , the specifics of the desired approach will be for Parliament to decide since a new and more expansive definition of charity, without warning, could have a substantial and serious effect on the taxation system.
The operation of the charitable registration scheme in the Income Tax Act does not violate the equality rights of the Society’s intended beneficiaries under s. 15 of the Canadian Charter of Rights and Freedoms . The interplay of Pemsel and the Income Tax Act results in a scheme whereby any organization, by restricting itself to charitable purposes and activities, can qualify for registration as a charitable organization. This requirement applies uniformly to every organization that seeks to be registered as charitable.
Per L’Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): The starting point for the courts in determining whether a particular purpose is charitable is the Pemsel case, which provides a classification of charitable purposes. The Pemsel classification carves out three presumptively charitable categories (relief of poverty, advancement of education, and advancement of religion) and creates a residual fourth category of charitable purposes (“other purposes beneficial to the community”), which itself comprises a number of recognized subcategories. Any purpose which is charitable must fit into one or more of the four Pemsel categories. Further, a valid charitable organization must be constituted exclusively for charitable purposes. This requirement is reflected in the definition of “charitable organization” in s. 149.1(1) of the Act, which also requires that a charitable organization must devote all of its resources to charitable activities. The pursuit of purposes which, though not charitable in themselves, are merely ancillary or incidental to the fulfilment of the primary, charitable, purposes of an organization will not cause the organization to run afoul of the exclusivity requirement. Furthermore, for the organization to qualify as charitable, its purposes must be “for the benefit of the community or of an appreciably important class of the community”. The public benefit requirement has two distinct components: there must be an objectively measurable and socially useful benefit conferred; and it must be a benefit available to a sufficiently large section of the population to be considered a public benefit. Although the public benefit requirement applies to all charitable purposes, it is of particular concern under the fourth head of the Pemsel classification. This is so because under the first three heads, public benefit is essentially a rebuttable presumption, whereas under the fourth head it must be demonstrated.
In determining whether a particular purpose may be placed within one or more of the Pemsel categories, the courts adhere to the analogical approach to legal reasoning familiar to the common law. Since the Pemsel classification does not itself provide any enumeration of purposes from which to analogize to putatively charitable purposes under consideration, the courts should consider whether the purpose is analogous to one of the purposes enumerated in the preamble of the Statute of Elizabeth or build analogy upon analogy. While the courts should not shy away from the recognition of new purposes which respond to pressing social needs, the pursuit of analogy should not lead the courts astray. To modernize the existing categories of charitable purposes, a court should adhere to the principles of altruism and public benefit in order to identify new charitable purposes and to ensure that existing ones continue to serve the public good. When considering a purpose under the fourth head of the Pemsel classification, the mere fact that a purpose is of public benefit does not, without more, render that purpose charitable. To qualify as charitable, a purpose must be beneficial to the public “in a way which the law regards as charitable”. The best approach for making such a determination is one which marries adherence to principle with respect for the existing categories as established by the Pemsel scheme.
In the law of charity, the courts’ primary concern is to determine whether the purposes being pursued are charitable. It is these purposes which are essential, not the activities engaged in, although the activities must bear a coherent relationship to the purposes sought to be achieved. Accordingly, in determining whether an organization should be registered as a charitable organization, the proper approach is to begin by: (a) identifying the primary purposes of the organization; and then (b) determining whether those purposes are charitable. If one concludes that the purposes are not charitable, then the organization is not charitable, and the inquiry ends there. However, if the organization’s primary purposes are charitable, then it must be considered (c) whether the other purposes pursued by the organization are ancillary or incidental to its primary purposes; and (d) whether the activities engaged in by the organization are sufficiently related to its purposes to be considered to be furthering them. If positive responses are made to these two latter inquiries, then the organization should be registered as a charitable organization. The Society’s purpose is set out in clause 2(a) of its constitution and the other purposes are merely subsidiary to, and in direct furtherance of, this purpose.
The “advancement of education” head of the Pemsel classification has traditionally been given a relatively restrictive interpretation in Canada and this traditional definition should be abandoned in favour of a more modern conception. So long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education. In order to be educational under this head, an organization must pursue “actual teaching” or a “learning component”. The concept of education, however, is not amenable to indefinite expansion. The more that purposes stray from traditional conceptions of education, the more difficult it will be to engage in the task of distinguishing charitable from non-charitable purposes. Here, the “advancement of education” head encompasses the Society’s purpose set out in clause 2(a) of its constitution. Accordingly, the Society is prima facie charitable because its purpose is charitable under a head of the Pemsel classification.
The Society’s purpose can also be placed within the fourth head of the Pemsel classification. Assisting the settlement of immigrants and refugees, and their integration into national life, is a charitable purpose already recognized under the fourth head and the Society’s purpose is subsumed within this subcategory. Immigrants are often in special need of assistance in their efforts to integrate into their new home. The Society provides assistance, guidance, and learning opportunities. It helps immigrants in developing and acquiring vocational skills, so that they may obtain employment. An organization, such as the Society, which assists immigrants through this difficult transition is directed towards a charitable purpose. Clearly, a direct benefit redounds to the individuals receiving assistance from the Society, and the nation as a whole gains from the integration of those individuals into its fabric. That is the public benefit at issue here.
A proper determination of whether the Society’s activities are sufficiently connected to its purpose must take into account the unique needs and problems faced by immigrant and visible minority women in obtaining employment. Activities must be evaluated in the light of the purposes they are supposed to further. When this is done on the facts of this appeal, there is no doubt that the Society’s activities are charitable. While some of the activities may not be sufficiently connected to the “advancement of education”, no position is taken on that question in light of the finding that assisting immigrants so that they may obtain employment or self‑employment, and thus become fully integrated into national life, is a valid charitable purpose under the fourth head of the Pemsel classification. These activities, which include maintaining a job skills directory, networking, liaising for accreditation of foreign credentials, soliciting job opportunities, and offering referral services, cannot be viewed as other than directly connected to achieving that purpose. Since each of these activities is directly related to the Society’s charitable purpose, each of them constitutes a “charitable activity” under the Income Tax Act .
Under the fourth head of the Pemsel classification, to qualify as charitable the class of persons eligible to benefit must be the community as a whole, or an appreciably important class of the community. The Society has not impermissibly limited the scope of its class of beneficiaries. Despite its primary focus on immigrant women, there is no indication that in practice the Society’s beneficiaries are exclusively women or members of minority groups. On the contrary, the evidence suggests that the Society’s services are open to all in need of them.
The political purposes doctrine has no application on the facts of this appeal. It is obvious from a plain reading of clause 2(b) that the Society’s purpose is not political. Clause 2(b) does not authorize the Society to pursue political purposes, but merely enables it to engage in political activities in furtherance of its charitable purpose, provided that such political activities are incidental and ancillary to that charitable purpose.
The Society’s purpose is not too vague or uncertain to be charitable. The purposes of an organization will almost invariably be phrased in broad, general terms and that cannot, of itself, render those words ambiguous. One should not aspire to an unrealistic degree of precision in such matters. By inserting the words “or conducive” into clause 2(e), the Society did not place itself outside the scope of legal charity. Though notionally a purpose clause, what is contemplated by clause 2(e) is the ability to conduct activities, not purposes. The key observation is that an organization whose purpose is charitable does not surrender that status merely because it engages in some activities which are not in themselves charitable, so long as those activities are subordinate to, and in furtherance of, the exclusively charitable purpose of the organization. That is the case here. The plain language of clause 2(e) indicates the obvious intent of the drafter to enable the Society to carry out certain activities in furtherance of its purpose.
It is unnecessary in this case to engage in a wholesale revision of the common law definition of charity because the Society’s purpose can be placed within the existing Pemsel categories. Before asking this Court to modify the common law, litigants should demonstrate that they have exhausted the possibilities of the existing law. In the law of charity, those possibilities are considerable.
Cases Cited
By Iacobucci J.
Applied: Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133; D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970] T.R. 31; disapproved: Re Fitzgibbon (1916), 27 O.W.R. 207; distinguished: Re Stone (1970), 91 W.N. (N.S.W.) 704; In re Wallace, [1908] V.L.R. 636; In re Cohen, [1954] N.Z.L.R. 1097; Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757; Briarpatch Inc. v. The Queen, 96 D.T.C. 6294; Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096; referred to: The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76; Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471; Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531; Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340; Morice v. Bishop of Durham (1805), 10 Ves. Jun. 522, 32 E.R. 947, aff’g (1804), 9 Ves. Jun. 399, 32 E.R. 656; McGovern v. Attorney‑General, [1982] Ch. 321; Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138; Verge v. Somerville, [1924] A.C. 496; Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202; British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462; Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424; Inland Revenue Commissioners v. McMullen, [1981] A.C. 1; Re Hopkins’ Will Trusts, [1964] 3 All E.R. 46; Re Koeppler Will Trusts, [1986] Ch. 423; Re Societa Unita and Town of Gravenhurst (1977), 16 O.R. (2d) 785, aff’d (1978), 6 M.P.L.R. 172; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; Oppenheim v. Tobacco Securities Trust Co., [1951] A.C. 297; Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232; Institution of Mechanical Engineers v. Cane, [1961] A.C. 696; Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52.
By Gonthier J. (dissenting)
D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970] T.R. 31; Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471; Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531; Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52; Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340; Vancouver Regional FreeNet Assn. v. M.N.R., [1996] 3 F.C. 880; McGovern v. Attorney-General, [1982] Ch. 321; Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133, rev’g [1965] 2 Ex. C.R. 69; The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76; Turner v. Ogden (1787), 1 Cox 316, 29 E.R. 1183; Incorporated Council of Law Reporting for England and Wales v. Attorney-General, [1972] Ch. 73; Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138; In re Strakosch, [1949] Ch. 529; British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462; Jones v. T. Eaton Co., [1973] S.C.R. 635; Brewer v. McCauley, [1954] S.C.R. 645; Verge v. Somerville, [1924] A.C. 496; Inland Revenue Commissioners v. Baddeley, [1955] A.C. 572; National Anti-Vivisection Society v. Inland Revenue Commissioners, [1948] A.C. 31; Blais v. Touchet, [1963] S.C.R. 358; In re Foveaux, [1895] 2 Ch. 501; Williams’ Trustees v. Inland Revenue Commissioners, [1947] A.C. 447; Peggs v. Lamb, [1994] 2 All E.R. 15; Royal National Agricultural and Industrial Association v. Chester (1974), 3 A.L.R. 486; Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762; Scarborough Community Legal Services v. The Queen, [1985] 2 F.C. 555; Toronto Volgograd Committee v. M.N.R., [1988] 3 F.C. 251; Alberta Institute on Mental Retardation v. Canada, [1987] 3 F.C. 286; Re Public Trustee and Toronto Humane Society (1987), 60 O.R. (2d) 236; Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202; Stop the Violence . . . Face the Music Society v. The Queen, 97 D.T.C. 5026; Attorney General v. Ross, [1985] 3 All E.R. 334; Inland Revenue Commissioners v. Oldham Training and Enterprise Council, [1996] B.T.C. 539; Briarpatch Inc. v. The Queen, 96 D.T.C. 6294; Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424; Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096; Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232; Inland Revenue Commissioners v. McMullen, [1981] A.C. 1; Re Stone (1970), 91 W.N. (N.S.W.) 704; In re Wallace, [1908] V.L.R. 636; In re Cohen, [1954] N.Z.L.R. 1097; Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757; Re Fitzgibbon (1916), 27 O.W.R. 207; Re Mariette, [1915] 2 Ch. 284; Canada Trust Co. v. Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321; N.D.G. Neighbourhood Association v. Revenue Canada, Taxation Department, 88 D.T.C. 6279; Re Koeppler Will Trusts, [1986] Ch. 423; Institution of Mechanical Engineers v. Cane, [1961] A.C. 696; Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.
Statutes and Regulations Cited
Canada Corporations Act, R.S.C. 1970, c. C-32 , Part II.
Canadian Charter of Rights and Freedoms, s. 15 .
Charitable Uses Act, 1601 (Eng.), 43 Eliz. 1, c. 4 (Statute of Elizabeth or Statute of Charitable Uses), preamble.
Charities Act, 1960 (U.K.), 8 & 9 Eliz. 2, c. 58, s. 38.
Immigration Act, R.S.C., 1985, c. I-2, ss. 6(8) [rep. & sub. 1992, c. 49, s. 3], 9(1.4) [idem, s. 4].
Immigration Regulations, 1978, SOR/78-172, as amended, ss. 6.11 to 6.19, 8 to 11.1.
Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 110.1(1) (a) [repl. 1994, c. 7, Sch. II, s. 79(1)], 118.1(1), (3), 149(1)(f), (l), 149.1(1) “charitable foundation”, “charitable organization”, “charitable purposes”, (2) [am. 1994, c. 21, s. 74(4)], (4.1), (6.1), (6.2), (14), 168, 172(3) [am. 1994, c. 7, Sch. II, s. 141(1)], 180(3), 188(1) [repl. 1994, c. 21, s. 84(1)], 230(2) [idem, s. 105(1) ], 248(1) “registered charity”.
Income Tax Regulations, C.R.C., c. 945, s. 900(8) [rep. & sub. SOR/87-470, s. 1(10); am. SOR/89-346, s. 1(6); am. SOR/92-137, s. 1(10); am. SOR/93-280, s. 1(7); am. SOR/94-495, s. 1(6)].
Income War Tax Act, 1917, S.C. 1917, c. 28, s. 5(d).
Mortmain and Charitable Uses Act, 1888 (U.K.), 51 & 52 Vict., c. 42, s. 13(1), (2).
Society Act, R.S.B.C. 1979, c. 390 [now R.S.B.C. 1996, c. 433].
Authors Cited
Bagambiire, Davies B. N. Canadian Immigration and Refugee Law. Aurora, Ont.: Canada Law Book, 1996.
Bromley, E. Blake. “Contemporary Philanthropy -- Is the Legal Concept of “Charity” Any Longer Adequate?” In Donovan W. M. Waters, ed., Equity, Fiduciaries and Trusts 1993. Scarborough, Ont.: Carswell, 1993, 59.
Cairns, Elizabeth. Charities: Law and Practice, 3rd ed. London: Sweet & Maxwell, 1997.
Canada. Revenue Canada. Interpretation Bulletin IT‑486R, “Intergenerational Transfers of Shares of a Small Business Corporation”, December 31, 1987.
Concise Oxford Dictionary, 9th ed. Oxford: Clarendon Press, 1995, “conducive”, “incidental”.
Cullity, Maurice C. “The Myth of Charitable Activities” (1990), 10 Est. & Tr. J. 7.
Drache, Arthur B. C. Canadian Taxation of Charities and Donations. Scarborough, Ont.: Carswell, 1994 (loose-leaf updated October 1997, supplement 1997-1).
Fridman, G. H. L. “Charities and Public Benefit” (1953), 31 Can. Bar Rev. 537.
Jones, Gareth. History of the Law of Charity 1532-1827. London: Cambridge University Press, 1969.
Ontario. Law Reform Commission. Report on the Law of Charities. Toronto: The Commission, 1997.
Smith, David W. “Tax appeal procedure for charities needs improving”, in The National, vol. 12, No. 4, April 1985, p. 21.
Tudor on Charities, 8th ed. by Jean Warburton. London: Sweet & Maxwell, 1995.
United States. Department of the Treasury. Internal Revenue Service. Cumulative Bulletin 1976-1, Rev. Rul. 76-205, p. 154.
Waters, Donovan W. M. Law of Trusts in Canada, 2nd ed. Toronto: Carswell, 1984.
APPEAL from a judgment of the Federal Court of Appeal (1996), 195 N.R. 235, 96 D.T.C. 6232, [1996] 2 C.T.C. 88, [1996] F.C.J. No. 307 (QL), affirming the Minister of National Revenue’s decision rejecting appellant’s application for charitable tax status. Appeal dismissed, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting.
David W. Mossop, for the appellant.
Roger Leclaire and Johanne D’Auray, for the respondent.
Emilio S. Binavince and Uzma Ihsanullah, for the interveners the Minority Advocacy and Rights Council, the Canadian Ethnocultural Council and the Centre for Research Action on Race Relations.
W. Laird Hunter and Arthur B. C. Drache, Q.C., for the intervener the Canadian Centre for Philanthropy.
The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by
1 Gonthier J. (dissenting) -- This appeal requires the Court to consider the legal definition of charity, and to apply that definition to determine whether the respondent Minister of National Revenue (“Minister”) erred in law in refusing to register the appellant Vancouver Society of Immigrant and Visible Minority Women (“Society”) as a charitable organization under the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .) (formerly R.S.C. 1952, c. 148).
2 I have had the benefit of reading the reasons of my colleague Iacobucci J. Although there is considerable agreement between Iacobucci J.’s reasoning and my own as to the appropriate scope to be given to the legal categories of charity, I find myself unable to agree with certain aspects of my colleague’s reasons. More importantly, I disagree with my colleague as to the manner in which the legal definition of charity should be applied to the particular circumstances of this appeal, and hence, with the result he reaches. Accordingly, I have felt it necessary to set out my own reasons.
I. Facts
3 The appellant Society, which is based in Vancouver, was incorporated on December 19, 1985, under the Society Act, R.S.B.C. 1979, c. 390 (now R.S.B.C. 1996, c. 433), as a corporation without share capital. In 1992, the Society made its first application to Revenue Canada seeking registration as a registered charity under ss. 149.1(1) and 248(1) of the Income Tax Act (“ITA ”). Revenue Canada, in a letter to the Society dated April 10, 1992, refused to register the Society as a registered charity, and gave reasons for its decision. So began a lengthy series of correspondence between the Society, its counsel, and Revenue Canada. Although Revenue Canada’s initial refusal decision is not the subject of the present appeal, Revenue Canada’s ultimate refusal to register the Society must be interpreted in the light of this long chain of correspondence. Because the correspondence and the constituting documents of the Society make up the entire record in this appeal, I outline them in some detail in the following paragraphs.
4 In response to Revenue Canada’s first refusal decision, the Society amended its constitution on August 21, 1992, to restrict the scope of its purposes, so that the Society’s purposes were as set out below:
2. (a) To educate members of the Community at large, including immigrant & visible minority women, on the needs and concerns of immigrant & visible minority women in Canada;
(b) To foster and promote social awareness and community involvement in civic education, volunteer and membership development and preventive social services;
(c) To facilitate immigrant and visible minority women in achieving economic and social independence and their full potential in Canadian society;
(d) To co-operate and build a network within British Columbia, especially among immigrant and visible minority women and concerned individuals and groups, in order to provide current information and services for the purpose of mutual support;
(e) To provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.
5 On March 17, 1993, the Society replied to Revenue Canada’s refusal letter. The Society explained why it should be registered under the ITA , and asked that its application be re-assessed. The Society’s letter outlined its purposes and activities. It reiterated its earlier assertion that its purposes were “non-political”. The Society stated that it sought to assist and educate the community at large, but that its particular (though non-exclusive) focus was upon immigrant and visible minority women. The Society indicated that its services and workshops were designed to “relieve poverty” and “advance education”. To these ends, the Society’s activities included a “career and vocational counselling service” to assist women in obtaining employment, and assistance in such practical skills as “resume writing, interview skills, and dealing with Canadian employers”. In addition, the Society indicated that one of its current projects was an “anti-racism education workshop”.
6 Revenue Canada replied with a form letter on April 5, 1993 indicating that it would not commence a review of the Society’s application until it had received further information from the Society. Revenue Canada’s letter stated that the Society’s March 17, 1993 application had not been made on the prescribed form, and enclosed a copy of the T2050 form.
7 The Society made a second application for registration on May 10, 1993, by completing the T2050 form and returning it to Revenue Canada, along with a cover letter. A Revenue Canada official telephoned the Society on August 24, 1993, to request further clarification as to how its programs were conducted and who was eligible to participate in the programs. The Revenue Canada official wrote a memorandum to file regarding the information obtained during this telephone conversation. The relevant portion of the memorandum is set out below:
1. Membership
About 300 members from all walks of life seeking employment opportunities and general support for integration into Canadian life.
2. Job Skills Directory
In addition to its own membership, others wishing to be included in the directory are listed, for a total of approx. 600 persons, ranging from those on social assistance to professionals who have been in the country for a few years and wish to re-enter the work force. No percentages available re income level of those listed.
The Society does not arrange interviews for persons listed. Organizations wishing to employ persons send notice to the Society of jobs that are available. While this information may be brought to the attention of individuals with the required skills, it is up to the person to make the contact and seek the job.
The Directory is not circulated in the job market, but its existence is advertised by the Society in EIC, in educational institutions, etc.
3. Job Skills Training
Other than placing volunteer workers as receptionists, clerks, bookkeepers, computer operators, etc. within the Society’s operation, no training in various skills is undertaken by the Society.
However, pre-Employment counselling re resumes, conduct of job interviews, where to apply for jobs, etc. is conducted by the Society.
4. Employment Equity and Foreign Credentials Committees
Both are concerned with the matter of recognition of degrees and certifications earned in other countries which are not accepted in Canada. Workshops and meetings with teaching and nursing associations and institutions are held to discuss accreditation of certifications and informing individuals of courses required to bring their qualifications to Canadian standards.
This is strictly an educational process -- doesn’t involve legislation.
5. ESL Classes -- are conducted by Employment & Immigration Canada. The Society refers its people to EIC and advises EIC when a need for the class arises.
6. Support Group for Professionals
Assistance and encouragement is given by professional committee to professional members wishing to enter or re-enter the work force, most often with regard to upgrading their certification to meet Canadian requirements.
. . .
I questioned “preventive soc

Court headnote

Vancouver Society of Immigrant and Visible Minority Women v. M.N.R. Collection Supreme Court Judgments Date 1999-01-28 Report [1999] 1 SCR 10 Case number 25359 Judges L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel On appeal from Federal Court of Appeal Subjects Constitutional law Taxation Notes SCC Case Information: 25359 Decision Content Vancouver Society of Immigrant and Visible Minority Women v. M.N.R., [1999] 1 S.C.R. 10 Vancouver Society of Immigrant and Visible Minority Women Appellant v. Minister of National Revenue Respondent and Minority Advocacy and Rights Council, Canadian Ethnocultural Council, Centre for Research Action on Race Relations and Canadian Centre for Philanthropy Interveners Indexed as: Vancouver Society of Immigrant and Visible Minority Women v. M.N.R. File No.: 25359. 1998: February 23; 1999: January 28. Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ. on appeal from the federal court of appeal Taxation -- Charities -- Registered charities -- Society applying for registration as a charitable organization -- Society’s primary purpose being to provide educational forums, classes, workshops and seminars to immigrant and visible minority women to enable them to find employment -- Whether purpose for “advancement of education” or “beneficial to community” -- Whether society’s purposes exclusively charitable -- Whether common law definition of charity should be revised -- Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 149.1(1) , 248(1) . Constitutional law -- Charter of Rights -- Equality rights -- Charitable registration scheme -- Society assisting immigrant and visible minority women denied charitable tax status under Income Tax Act -- Whether charitable registration scheme violates equality rights of society’s intended beneficiaries -- Canadian Charter of Rights and Freedoms, s. 15 -- Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 149.1(1) , 248(1) . The appellant Society applied to the Minister of National Revenue for registration as a charitable organization under ss. 149.1(1) and 248(1) of the Income Tax Act . The Society’s purposes, as stated in its amended constitution, were “(a) to provide educational forums, classes, workshops and seminars to immigrant women in order that they may be able to find or obtain employment or self employment; (b) to carry on political activities provided such activities are incidental and ancillary to the above purposes and provided such activities do not include direct or indirect support of, or opposition to, any political party or candidate for public office; (c) to raise funds in order to carry out the above purposes by means of solicitations of funds from governments, corporations and individuals; and (e) to provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives.” The Society described its activities as providing a “public benefit” through services and workshops designed to “advance education”. The Society’s activities included a “career and vocational counselling service” to assist women in obtaining employment, and assistance in such practical skills as résumé writing and interview skills as well as activities such as networking, soliciting job opportunities, maintaining a job skills directory, liaising for accreditation of foreign credentials and offering referral services. Revenue Canada rejected the Society’s application mainly because it was not convinced that the organization was constituted exclusively for charitable purposes, as required for registration under the Act. The Federal Court of Appeal dismissed the Society’s appeal. Held (L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed. Per Cory, Iacobucci, Major and Bastarache JJ.: For an organization to qualify for registration under s. 248(1) of the Income Tax Act : (1) the purposes of the organization must be charitable, and must define the scope of the activities engaged in by the organization; and (2) all of the organization’s resources must be devoted to these activities unless the organization falls within the specific exemptions of s. 149.1(6.1) or (6.2) . Since the Act does not define “charitable”, Canadian courts have consistently applied the Pemsel test to determine that question. The Pemsel classification is generally understood to refer to the preamble of the Statute of Elizabeth, which gave examples of charitable purposes. While the courts have always had the jurisdiction to decide what is charitable and were never bound by the preamble, the law of charities has proceeded by way of analogy to the purposes enumerated in the preamble. The Pemsel classification is subject to the consideration that the purpose must also be “for the benefit of the community or of an appreciably important class of the community” rather than for private advantage. While the definition of “charitable organization” in s. 149.1(1) focuses on “charitable activities” rather than purposes, it is really the purpose in furtherance of which an activity is carried out, not the character of the activity itself, that determines whether or not the activity is of a charitable nature. Accordingly, in making that determination, the inquiry must focus not only on the activities of an organization but also on its purposes. Subject to the exemptions provided by s. 149.1(6.1) and (6.2) , s. 149.1(1) requires that all of the purposes and activities of the organization be charitable. However, even the pursuit of a purpose which would be non-charitable in itself may not disqualify an organization from being considered charitable if it is pursued only as a means of fulfilment of another, charitable purpose and not as an end in itself. Under the traditional approach, the “advancement of education” head of the Pemsel classification is generally limited in Canada to the “formal training of the mind” or the “improvement of a useful branch of human knowledge”. While purpose (a) -- the primary purpose of the Society -- would not qualify as charitable under the traditional approach as it seems to lack the element of systematic instruction, there is no logical or principled reason why a more expansive definition of education for the purposes of the law of charity should not be adopted. To limit the notion of “training of the mind” to structured, systematic instruction or traditional academic subjects reflects an outmoded and underinclusive understanding of education which is of little use in modern Canadian society. So long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education. Education should not be broadened beyond recognition but the law ought to accommodate any legitimate form of education. Here, purpose (a) is charitable under the proposed more expansive definition of education. The purpose is to train the minds of immigrant women in certain important life skills, with a specific end in mind: equipping them to find and secure employment in Canada. Moreover, certain activities carried out in furtherance of this purpose, such as the provision of the educational programs contemplated by the purposes clause, are undoubtedly charitable within this expanded definition, whether or not they have the quality of systematic instruction traditionally associated with education in the charitable sense. The purpose also satisfies the requirement that it benefit “the community or . . . an appreciably important class of the community”. To bring a purpose within the fourth head of Pemsel, more is required than simple “public benefit”, in the ordinary sense of the term. It is incumbent upon the Society to explain just how its purposes are beneficial in a way the law regards as charitable. To assess whether an organization’s purposes are charitable under that head, a court should: (1) consider the trend of those decisions which have established certain objects as charitable under this heading, and ask whether, by reasonable extension or analogy, the instant case may be considered to be in line with these; (2) examine certain accepted anomalies to see whether they fairly cover the objects under consideration; and (3) ask whether, consistently with the objects declared, the income and property in question can be applied for purposes clearly falling outside the scope of charity; if so, the argument for charity must fail. To this approach must be added the general requirement that the purpose also be “for the benefit of the community or of an appreciably important class of the community”. This approach indicates that the Society’s purpose (a) is not charitable under the fourth head. No “trend” can be discerned from previous decisions recognizing that assisting immigrant women to integrate into society through helping them to obtain employment is a charitable purpose under the fourth head of charity. Purpose (a) should therefore be characterized solely in terms of education. A valid charitable organization must be constituted exclusively for charitable purposes. While political purposes are not generally considered charitable, the Society’s purposes clause makes clear that the sole purpose of carrying out political activities and raising funds under clause 2(b) and (c) is to facilitate a valid educational purpose. Accordingly, purposes (b) and (c) can be taken as means to the fulfilment of purpose (a), not ends in themselves, and thus do not disqualify the Society from obtaining registration as a charity under the Act. It is difficult, however, to discern whether purpose (e) is a means of fulfilment or an end in itself because of its extremely broad wording, which mandates the Society to do “all such things that are incidental or conducive to the attainment of” its other purposes. One purpose may be conducive to another while still remaining an end in itself, not merely a means to the fulfilment of the second purpose. This, combined with the exceedingly vague content of purpose (e), leads to the conclusion that it cannot be classified as charitable simply on the basis of its relationship to the educational purpose disclosed in purpose (a). Furthermore, the question of whether an organization was constituted exclusively for charitable purposes cannot be determined solely by reference to the objects and purposes for which it was originally established. It is also necessary to consider the nature of the activities presently carried on by the organization as a potential indicator of whether it has since adopted other purposes. Here, the nature of the activities carried out by the Society further supports the conclusion as to the non-charitable character of purpose (e). The provision of a job skills directory and the establishment of support groups for professionals do not constitute educational activities, nor do they appear to be “incidental” to the attainment of purpose (a) of the Society. They must fall under purpose (e) as activities “conducive” to the other purposes. However, while these may well be useful services, they are directly in furtherance of helping immigrant women to find employment, which in itself is not a charitable purpose. The purposes of the Society therefore can and do accommodate non-charitable activities. They are simply too vague and indeterminate to permit the Society to qualify for charitable status under the fourth head of Pemsel. In the result, the Society has not satisfied either of the two criteria for registration as a charity under s. 248(1) of the Act. While some of the Society’s purposes contemplate charitable activities, they do not restrict the Society to charitable activities alone. Even though some substantial change in the law of charity would be desirable and welcome at this time, it would not be appropriate for the Court, in the context of this case, to adopt an entirely new definition of charity. If this is to be done, especially for the purposes of the Income Tax Act , the specifics of the desired approach will be for Parliament to decide since a new and more expansive definition of charity, without warning, could have a substantial and serious effect on the taxation system. The operation of the charitable registration scheme in the Income Tax Act does not violate the equality rights of the Society’s intended beneficiaries under s. 15 of the Canadian Charter of Rights and Freedoms . The interplay of Pemsel and the Income Tax Act results in a scheme whereby any organization, by restricting itself to charitable purposes and activities, can qualify for registration as a charitable organization. This requirement applies uniformly to every organization that seeks to be registered as charitable. Per L’Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): The starting point for the courts in determining whether a particular purpose is charitable is the Pemsel case, which provides a classification of charitable purposes. The Pemsel classification carves out three presumptively charitable categories (relief of poverty, advancement of education, and advancement of religion) and creates a residual fourth category of charitable purposes (“other purposes beneficial to the community”), which itself comprises a number of recognized subcategories. Any purpose which is charitable must fit into one or more of the four Pemsel categories. Further, a valid charitable organization must be constituted exclusively for charitable purposes. This requirement is reflected in the definition of “charitable organization” in s. 149.1(1) of the Act, which also requires that a charitable organization must devote all of its resources to charitable activities. The pursuit of purposes which, though not charitable in themselves, are merely ancillary or incidental to the fulfilment of the primary, charitable, purposes of an organization will not cause the organization to run afoul of the exclusivity requirement. Furthermore, for the organization to qualify as charitable, its purposes must be “for the benefit of the community or of an appreciably important class of the community”. The public benefit requirement has two distinct components: there must be an objectively measurable and socially useful benefit conferred; and it must be a benefit available to a sufficiently large section of the population to be considered a public benefit. Although the public benefit requirement applies to all charitable purposes, it is of particular concern under the fourth head of the Pemsel classification. This is so because under the first three heads, public benefit is essentially a rebuttable presumption, whereas under the fourth head it must be demonstrated. In determining whether a particular purpose may be placed within one or more of the Pemsel categories, the courts adhere to the analogical approach to legal reasoning familiar to the common law. Since the Pemsel classification does not itself provide any enumeration of purposes from which to analogize to putatively charitable purposes under consideration, the courts should consider whether the purpose is analogous to one of the purposes enumerated in the preamble of the Statute of Elizabeth or build analogy upon analogy. While the courts should not shy away from the recognition of new purposes which respond to pressing social needs, the pursuit of analogy should not lead the courts astray. To modernize the existing categories of charitable purposes, a court should adhere to the principles of altruism and public benefit in order to identify new charitable purposes and to ensure that existing ones continue to serve the public good. When considering a purpose under the fourth head of the Pemsel classification, the mere fact that a purpose is of public benefit does not, without more, render that purpose charitable. To qualify as charitable, a purpose must be beneficial to the public “in a way which the law regards as charitable”. The best approach for making such a determination is one which marries adherence to principle with respect for the existing categories as established by the Pemsel scheme. In the law of charity, the courts’ primary concern is to determine whether the purposes being pursued are charitable. It is these purposes which are essential, not the activities engaged in, although the activities must bear a coherent relationship to the purposes sought to be achieved. Accordingly, in determining whether an organization should be registered as a charitable organization, the proper approach is to begin by: (a) identifying the primary purposes of the organization; and then (b) determining whether those purposes are charitable. If one concludes that the purposes are not charitable, then the organization is not charitable, and the inquiry ends there. However, if the organization’s primary purposes are charitable, then it must be considered (c) whether the other purposes pursued by the organization are ancillary or incidental to its primary purposes; and (d) whether the activities engaged in by the organization are sufficiently related to its purposes to be considered to be furthering them. If positive responses are made to these two latter inquiries, then the organization should be registered as a charitable organization. The Society’s purpose is set out in clause 2(a) of its constitution and the other purposes are merely subsidiary to, and in direct furtherance of, this purpose. The “advancement of education” head of the Pemsel classification has traditionally been given a relatively restrictive interpretation in Canada and this traditional definition should be abandoned in favour of a more modern conception. So long as information or training is provided in a structured manner and for a genuinely educational purpose -- that is, to advance the knowledge or abilities of the recipients -- and not solely to promote a particular point of view or political orientation, it may properly be viewed as falling within the advancement of education. In order to be educational under this head, an organization must pursue “actual teaching” or a “learning component”. The concept of education, however, is not amenable to indefinite expansion. The more that purposes stray from traditional conceptions of education, the more difficult it will be to engage in the task of distinguishing charitable from non-charitable purposes. Here, the “advancement of education” head encompasses the Society’s purpose set out in clause 2(a) of its constitution. Accordingly, the Society is prima facie charitable because its purpose is charitable under a head of the Pemsel classification. The Society’s purpose can also be placed within the fourth head of the Pemsel classification. Assisting the settlement of immigrants and refugees, and their integration into national life, is a charitable purpose already recognized under the fourth head and the Society’s purpose is subsumed within this subcategory. Immigrants are often in special need of assistance in their efforts to integrate into their new home. The Society provides assistance, guidance, and learning opportunities. It helps immigrants in developing and acquiring vocational skills, so that they may obtain employment. An organization, such as the Society, which assists immigrants through this difficult transition is directed towards a charitable purpose. Clearly, a direct benefit redounds to the individuals receiving assistance from the Society, and the nation as a whole gains from the integration of those individuals into its fabric. That is the public benefit at issue here. A proper determination of whether the Society’s activities are sufficiently connected to its purpose must take into account the unique needs and problems faced by immigrant and visible minority women in obtaining employment. Activities must be evaluated in the light of the purposes they are supposed to further. When this is done on the facts of this appeal, there is no doubt that the Society’s activities are charitable. While some of the activities may not be sufficiently connected to the “advancement of education”, no position is taken on that question in light of the finding that assisting immigrants so that they may obtain employment or self‑employment, and thus become fully integrated into national life, is a valid charitable purpose under the fourth head of the Pemsel classification. These activities, which include maintaining a job skills directory, networking, liaising for accreditation of foreign credentials, soliciting job opportunities, and offering referral services, cannot be viewed as other than directly connected to achieving that purpose. Since each of these activities is directly related to the Society’s charitable purpose, each of them constitutes a “charitable activity” under the Income Tax Act . Under the fourth head of the Pemsel classification, to qualify as charitable the class of persons eligible to benefit must be the community as a whole, or an appreciably important class of the community. The Society has not impermissibly limited the scope of its class of beneficiaries. Despite its primary focus on immigrant women, there is no indication that in practice the Society’s beneficiaries are exclusively women or members of minority groups. On the contrary, the evidence suggests that the Society’s services are open to all in need of them. The political purposes doctrine has no application on the facts of this appeal. It is obvious from a plain reading of clause 2(b) that the Society’s purpose is not political. Clause 2(b) does not authorize the Society to pursue political purposes, but merely enables it to engage in political activities in furtherance of its charitable purpose, provided that such political activities are incidental and ancillary to that charitable purpose. The Society’s purpose is not too vague or uncertain to be charitable. The purposes of an organization will almost invariably be phrased in broad, general terms and that cannot, of itself, render those words ambiguous. One should not aspire to an unrealistic degree of precision in such matters. By inserting the words “or conducive” into clause 2(e), the Society did not place itself outside the scope of legal charity. Though notionally a purpose clause, what is contemplated by clause 2(e) is the ability to conduct activities, not purposes. The key observation is that an organization whose purpose is charitable does not surrender that status merely because it engages in some activities which are not in themselves charitable, so long as those activities are subordinate to, and in furtherance of, the exclusively charitable purpose of the organization. That is the case here. The plain language of clause 2(e) indicates the obvious intent of the drafter to enable the Society to carry out certain activities in furtherance of its purpose. It is unnecessary in this case to engage in a wholesale revision of the common law definition of charity because the Society’s purpose can be placed within the existing Pemsel categories. Before asking this Court to modify the common law, litigants should demonstrate that they have exhausted the possibilities of the existing law. In the law of charity, those possibilities are considerable. Cases Cited By Iacobucci J. Applied: Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133; D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970] T.R. 31; disapproved: Re Fitzgibbon (1916), 27 O.W.R. 207; distinguished: Re Stone (1970), 91 W.N. (N.S.W.) 704; In re Wallace, [1908] V.L.R. 636; In re Cohen, [1954] N.Z.L.R. 1097; Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757; Briarpatch Inc. v. The Queen, 96 D.T.C. 6294; Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096; referred to: The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76; Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471; Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531; Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340; Morice v. Bishop of Durham (1805), 10 Ves. Jun. 522, 32 E.R. 947, aff’g (1804), 9 Ves. Jun. 399, 32 E.R. 656; McGovern v. Attorney‑General, [1982] Ch. 321; Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138; Verge v. Somerville, [1924] A.C. 496; Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202; British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462; Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424; Inland Revenue Commissioners v. McMullen, [1981] A.C. 1; Re Hopkins’ Will Trusts, [1964] 3 All E.R. 46; Re Koeppler Will Trusts, [1986] Ch. 423; Re Societa Unita and Town of Gravenhurst (1977), 16 O.R. (2d) 785, aff’d (1978), 6 M.P.L.R. 172; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; Oppenheim v. Tobacco Securities Trust Co., [1951] A.C. 297; Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232; Institution of Mechanical Engineers v. Cane, [1961] A.C. 696; Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52. By Gonthier J. (dissenting) D’Aguiar v. Guyana Commissioner of Inland Revenue, [1970] T.R. 31; Native Communications Society of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471; Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531; Everywoman’s Health Centre Society (1988) v. M.N.R., [1992] 2 F.C. 52; Positive Action Against Pornography v. M.N.R., [1988] 2 F.C. 340; Vancouver Regional FreeNet Assn. v. M.N.R., [1996] 3 F.C. 880; McGovern v. Attorney-General, [1982] Ch. 321; Guaranty Trust Co. of Canada v. Minister of National Revenue, [1967] S.C.R. 133, rev’g [1965] 2 Ex. C.R. 69; The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76; Turner v. Ogden (1787), 1 Cox 316, 29 E.R. 1183; Incorporated Council of Law Reporting for England and Wales v. Attorney-General, [1972] Ch. 73; Scottish Burial Reform and Cremation Society Ltd. v. Glasgow Corporation, [1968] A.C. 138; In re Strakosch, [1949] Ch. 529; British Launderers’ Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462; Jones v. T. Eaton Co., [1973] S.C.R. 635; Brewer v. McCauley, [1954] S.C.R. 645; Verge v. Somerville, [1924] A.C. 496; Inland Revenue Commissioners v. Baddeley, [1955] A.C. 572; National Anti-Vivisection Society v. Inland Revenue Commissioners, [1948] A.C. 31; Blais v. Touchet, [1963] S.C.R. 358; In re Foveaux, [1895] 2 Ch. 501; Williams’ Trustees v. Inland Revenue Commissioners, [1947] A.C. 447; Peggs v. Lamb, [1994] 2 All E.R. 15; Royal National Agricultural and Industrial Association v. Chester (1974), 3 A.L.R. 486; Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762; Scarborough Community Legal Services v. The Queen, [1985] 2 F.C. 555; Toronto Volgograd Committee v. M.N.R., [1988] 3 F.C. 251; Alberta Institute on Mental Retardation v. Canada, [1987] 3 F.C. 286; Re Public Trustee and Toronto Humane Society (1987), 60 O.R. (2d) 236; Human Life International in Canada Inc. v. M.N.R., [1998] 3 F.C. 202; Stop the Violence . . . Face the Music Society v. The Queen, 97 D.T.C. 5026; Attorney General v. Ross, [1985] 3 All E.R. 334; Inland Revenue Commissioners v. Oldham Training and Enterprise Council, [1996] B.T.C. 539; Briarpatch Inc. v. The Queen, 96 D.T.C. 6294; Interfaith Development Education Association, Burlington v. M.N.R., 97 D.T.C. 5424; Maclean Hunter Ltd. v. Deputy Minister of National Revenue for Customs and Excise, 88 D.T.C. 6096; Re Central Employment Bureau for Women and Students’ Careers Association Inc., [1942] 1 All E.R. 232; Inland Revenue Commissioners v. McMullen, [1981] A.C. 1; Re Stone (1970), 91 W.N. (N.S.W.) 704; In re Wallace, [1908] V.L.R. 636; In re Cohen, [1954] N.Z.L.R. 1097; Re Morrison (1967), 111 Sol. Jo. 758, 117 New L.J. 757; Re Fitzgibbon (1916), 27 O.W.R. 207; Re Mariette, [1915] 2 Ch. 284; Canada Trust Co. v. Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321; N.D.G. Neighbourhood Association v. Revenue Canada, Taxation Department, 88 D.T.C. 6279; Re Koeppler Will Trusts, [1986] Ch. 423; Institution of Mechanical Engineers v. Cane, [1961] A.C. 696; Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. Statutes and Regulations Cited Canada Corporations Act, R.S.C. 1970, c. C-32 , Part II. Canadian Charter of Rights and Freedoms, s. 15 . Charitable Uses Act, 1601 (Eng.), 43 Eliz. 1, c. 4 (Statute of Elizabeth or Statute of Charitable Uses), preamble. Charities Act, 1960 (U.K.), 8 & 9 Eliz. 2, c. 58, s. 38. Immigration Act, R.S.C., 1985, c. I-2, ss. 6(8) [rep. & sub. 1992, c. 49, s. 3], 9(1.4) [idem, s. 4]. Immigration Regulations, 1978, SOR/78-172, as amended, ss. 6.11 to 6.19, 8 to 11.1. Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), ss. 110.1(1) (a) [repl. 1994, c. 7, Sch. II, s. 79(1)], 118.1(1), (3), 149(1)(f), (l), 149.1(1) “charitable foundation”, “charitable organization”, “charitable purposes”, (2) [am. 1994, c. 21, s. 74(4)], (4.1), (6.1), (6.2), (14), 168, 172(3) [am. 1994, c. 7, Sch. II, s. 141(1)], 180(3), 188(1) [repl. 1994, c. 21, s. 84(1)], 230(2) [idem, s. 105(1) ], 248(1) “registered charity”. Income Tax Regulations, C.R.C., c. 945, s. 900(8) [rep. & sub. SOR/87-470, s. 1(10); am. SOR/89-346, s. 1(6); am. SOR/92-137, s. 1(10); am. SOR/93-280, s. 1(7); am. SOR/94-495, s. 1(6)]. Income War Tax Act, 1917, S.C. 1917, c. 28, s. 5(d). Mortmain and Charitable Uses Act, 1888 (U.K.), 51 & 52 Vict., c. 42, s. 13(1), (2). Society Act, R.S.B.C. 1979, c. 390 [now R.S.B.C. 1996, c. 433]. Authors Cited Bagambiire, Davies B. N. Canadian Immigration and Refugee Law. Aurora, Ont.: Canada Law Book, 1996. Bromley, E. Blake. “Contemporary Philanthropy -- Is the Legal Concept of “Charity” Any Longer Adequate?” In Donovan W. M. Waters, ed., Equity, Fiduciaries and Trusts 1993. Scarborough, Ont.: Carswell, 1993, 59. Cairns, Elizabeth. Charities: Law and Practice, 3rd ed. London: Sweet & Maxwell, 1997. Canada. Revenue Canada. Interpretation Bulletin IT‑486R, “Intergenerational Transfers of Shares of a Small Business Corporation”, December 31, 1987. Concise Oxford Dictionary, 9th ed. Oxford: Clarendon Press, 1995, “conducive”, “incidental”. Cullity, Maurice C. “The Myth of Charitable Activities” (1990), 10 Est. & Tr. J. 7. Drache, Arthur B. C. Canadian Taxation of Charities and Donations. Scarborough, Ont.: Carswell, 1994 (loose-leaf updated October 1997, supplement 1997-1). Fridman, G. H. L. “Charities and Public Benefit” (1953), 31 Can. Bar Rev. 537. Jones, Gareth. History of the Law of Charity 1532-1827. London: Cambridge University Press, 1969. Ontario. Law Reform Commission. Report on the Law of Charities. Toronto: The Commission, 1997. Smith, David W. “Tax appeal procedure for charities needs improving”, in The National, vol. 12, No. 4, April 1985, p. 21. Tudor on Charities, 8th ed. by Jean Warburton. London: Sweet & Maxwell, 1995. United States. Department of the Treasury. Internal Revenue Service. Cumulative Bulletin 1976-1, Rev. Rul. 76-205, p. 154. Waters, Donovan W. M. Law of Trusts in Canada, 2nd ed. Toronto: Carswell, 1984. APPEAL from a judgment of the Federal Court of Appeal (1996), 195 N.R. 235, 96 D.T.C. 6232, [1996] 2 C.T.C. 88, [1996] F.C.J. No. 307 (QL), affirming the Minister of National Revenue’s decision rejecting appellant’s application for charitable tax status. Appeal dismissed, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting. David W. Mossop, for the appellant. Roger Leclaire and Johanne D’Auray, for the respondent. Emilio S. Binavince and Uzma Ihsanullah, for the interveners the Minority Advocacy and Rights Council, the Canadian Ethnocultural Council and the Centre for Research Action on Race Relations. W. Laird Hunter and Arthur B. C. Drache, Q.C., for the intervener the Canadian Centre for Philanthropy. The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by 1 Gonthier J. (dissenting) -- This appeal requires the Court to consider the legal definition of charity, and to apply that definition to determine whether the respondent Minister of National Revenue (“Minister”) erred in law in refusing to register the appellant Vancouver Society of Immigrant and Visible Minority Women (“Society”) as a charitable organization under the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .) (formerly R.S.C. 1952, c. 148). 2 I have had the benefit of reading the reasons of my colleague Iacobucci J. Although there is considerable agreement between Iacobucci J.’s reasoning and my own as to the appropriate scope to be given to the legal categories of charity, I find myself unable to agree with certain aspects of my colleague’s reasons. More importantly, I disagree with my colleague as to the manner in which the legal definition of charity should be applied to the particular circumstances of this appeal, and hence, with the result he reaches. Accordingly, I have felt it necessary to set out my own reasons. I. Facts 3 The appellant Society, which is based in Vancouver, was incorporated on December 19, 1985, under the Society Act, R.S.B.C. 1979, c. 390 (now R.S.B.C. 1996, c. 433), as a corporation without share capital. In 1992, the Society made its first application to Revenue Canada seeking registration as a registered charity under ss. 149.1(1) and 248(1) of the Income Tax Act (“ITA ”). Revenue Canada, in a letter to the Society dated April 10, 1992, refused to register the Society as a registered charity, and gave reasons for its decision. So began a lengthy series of correspondence between the Society, its counsel, and Revenue Canada. Although Revenue Canada’s initial refusal decision is not the subject of the present appeal, Revenue Canada’s ultimate refusal to register the Society must be interpreted in the light of this long chain of correspondence. Because the correspondence and the constituting documents of the Society make up the entire record in this appeal, I outline them in some detail in the following paragraphs. 4 In response to Revenue Canada’s first refusal decision, the Society amended its constitution on August 21, 1992, to restrict the scope of its purposes, so that the Society’s purposes were as set out below: 2. (a) To educate members of the Community at large, including immigrant & visible minority women, on the needs and concerns of immigrant & visible minority women in Canada; (b) To foster and promote social awareness and community involvement in civic education, volunteer and membership development and preventive social services; (c) To facilitate immigrant and visible minority women in achieving economic and social independence and their full potential in Canadian society; (d) To co-operate and build a network within British Columbia, especially among immigrant and visible minority women and concerned individuals and groups, in order to provide current information and services for the purpose of mutual support; (e) To provide services and to do all such things that are incidental or conducive to the attainment of the above stated objects, including the seeking of funds from governments and/or other sources for the implementation of the aforementioned objectives. 5 On March 17, 1993, the Society replied to Revenue Canada’s refusal letter. The Society explained why it should be registered under the ITA , and asked that its application be re-assessed. The Society’s letter outlined its purposes and activities. It reiterated its earlier assertion that its purposes were “non-political”. The Society stated that it sought to assist and educate the community at large, but that its particular (though non-exclusive) focus was upon immigrant and visible minority women. The Society indicated that its services and workshops were designed to “relieve poverty” and “advance education”. To these ends, the Society’s activities included a “career and vocational counselling service” to assist women in obtaining employment, and assistance in such practical skills as “resume writing, interview skills, and dealing with Canadian employers”. In addition, the Society indicated that one of its current projects was an “anti-racism education workshop”. 6 Revenue Canada replied with a form letter on April 5, 1993 indicating that it would not commence a review of the Society’s application until it had received further information from the Society. Revenue Canada’s letter stated that the Society’s March 17, 1993 application had not been made on the prescribed form, and enclosed a copy of the T2050 form. 7 The Society made a second application for registration on May 10, 1993, by completing the T2050 form and returning it to Revenue Canada, along with a cover letter. A Revenue Canada official telephoned the Society on August 24, 1993, to request further clarification as to how its programs were conducted and who was eligible to participate in the programs. The Revenue Canada official wrote a memorandum to file regarding the information obtained during this telephone conversation. The relevant portion of the memorandum is set out below: 1. Membership About 300 members from all walks of life seeking employment opportunities and general support for integration into Canadian life. 2. Job Skills Directory In addition to its own membership, others wishing to be included in the directory are listed, for a total of approx. 600 persons, ranging from those on social assistance to professionals who have been in the country for a few years and wish to re-enter the work force. No percentages available re income level of those listed. The Society does not arrange interviews for persons listed. Organizations wishing to employ persons send notice to the Society of jobs that are available. While this information may be brought to the attention of individuals with the required skills, it is up to the person to make the contact and seek the job. The Directory is not circulated in the job market, but its existence is advertised by the Society in EIC, in educational institutions, etc. 3. Job Skills Training Other than placing volunteer workers as receptionists, clerks, bookkeepers, computer operators, etc. within the Society’s operation, no training in various skills is undertaken by the Society. However, pre-Employment counselling re resumes, conduct of job interviews, where to apply for jobs, etc. is conducted by the Society. 4. Employment Equity and Foreign Credentials Committees Both are concerned with the matter of recognition of degrees and certifications earned in other countries which are not accepted in Canada. Workshops and meetings with teaching and nursing associations and institutions are held to discuss accreditation of certifications and informing individuals of courses required to bring their qualifications to Canadian standards. This is strictly an educational process -- doesn’t involve legislation. 5. ESL Classes -- are conducted by Employment & Immigration Canada. The Society refers its people to EIC and advises EIC when a need for the class arises. 6. Support Group for Professionals Assistance and encouragement is given by professional committee to professional members wishing to enter or re-enter the work force, most often with regard to upgrading their certification to meet Canadian requirements. . . . I questioned “preventive soc

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

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

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