Organization launched to foster Canadian charity law.

• Author: Broder, Peter

One could do worse than to study charity law to understand some of the key elements in the Canadian legal system. There are the constitutional questions raised by overlapping federal and provincial jurisdiction with respect to the subject matter. There is the use of the common law--progressive development by judges of a legal framework through reliance on precedent and a commitment to treat like situations alike--to determine what is a charity. The power of superior courts to supervise charity matters is a notable example of the doctrine of inherent jurisdiction.

As well, there are a host of statutory and common law issues, arising from core concepts in other areas such as trusts, tax, corporate, and property law, which may come into play.

It might be expected that this mix would lead to lots of interesting Canadian jurisprudence and a fertile legal environment. But that has not proved to be the case. Instead, the field is marked by countless narrow rulings, often taking their tenor from foreign and archaic cases, and numerous situations where a compelling legal question has yet to be joined. Moreover, various factors--the high cost of litigation; limited resources of many charities and groups seeking to qualify as charities; and, heavy reliance on volunteers in running and advising organizations--contribute to litigation at the appeals level being a rarity.

The Federal Court of Appeal has, by statute, jurisdiction over registration and revocation of status as a charity under the federal Income Tax Act (I. T.A.).... the pace of change in the scope of the meaning of charity in Canada has been glacial.. The Federal Tax Court deals with all other I.T.A. charity matters. Superior provincial courts have inherent jurisdiction over charities, and deal with such things as cy pres applications (In certain circumstances if a charitable purpose becomes impossible to fulfill, the cy-pres doctrine allows a court to alter the purpose to one as close as possible to the original intention.)

The courts have provided little guidance on the intersection of the I.T.A. provisions governing registered charities and provincial constitutional authority, set out in section 92(7) of the Constitution Act, 1867 (UK), over the "Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province". As well, notwithstanding the imperative set out in the leading case Scottish Burial Reform and Cremation Society...