The Function (or Malfunction) of Equity in Charity Law of Canada's Federal Courts

AuthorKathryn Chan
PositionAssistant Professor, Faculty of Law, University of Victoria
(2016) 2(1) CJCCL
e Function (or Malfunction)
of Equity in the Charity Law of
Canada’s Federal Courts
Kathryn Chan*
is essay explores what, if anything, it means for the Federal Court of Appeal to be
a “court of equity” in the exercise of its jurisdiction over matters related to charitable
registration under the Income Tax Act. e equitable jurisdiction over charities
encompasses a number of curative principles, which the Court of Chancery traditionally
invoked to save indenite or otherwise defective charitable gifts. e author identies
some of these equitable principles and contemplates how their invocation might have
altered the course of certain unsuccessful charitable registration appeals. She then
considers the principal arguments for and against the Federal Court of Appeal applying
these equitable principles when adjudicating matters related to registered charity status.
* Assistant Professor, Faculty of Law, University of Victoria. I thank Peter
Broder, Mark Gillen and Blake Bromley for their helpful comments, and
Ratib Islam, Roark Lewis and Spencer Chang for their excellent research
Chan, e Function (or Malfunction) of Equity
I. I
II. T E J   F C  A
III. T R  E P   C L  C
A. Benignant Construction
B. Presumption of Lawful Trustee Behaviour
C. Resolution of Technical Defects
IV. I  A  I E P   A 
 R C R
A. e “Moving” Nature of Charity Law
B. Federal-Provincial Consistency
C. Equity and Charitable Corporations
D. Equity and Tax
V. C
I. Introduction
The doctrines and remedies that make up the common law charities
tradition belong to the realm of equity. Inherited from the
ecclesiastical courts, they were, by the fteenth century, being applied by
the Lord Chancellor of England, who granted to charitable gifts the same
privileges that canon law had anciently awarded to legacies ad pias causas.1
roughout the sixteenth, seventeenth, and eighteenth centuries, the
English Court of Chancery developed the law of charities, determining
the boundaries of the legal concept of charity, conrming its privileges,
and expanding the tools for its enforcement. By the early nineteenth
century, when the English law of equity was being introduced into the
colonies of British North America2, there was in place an extensive set of
equitable doctrines relating to charitable trusts, charitable corporations
and charitable gifts.
Today, in Canada, it is arguable that the most signicant heir of
this equitable jurisdiction is the appellate court of “law, equity, and
1. Gareth H Jones, History of the Law of Charity, 1532-1827 (London:
Cambridge University Press, 1969) at 4-9.
2. JE Cote, ‘e Reception of English Law’ (1977) 15 Alberta Law Review
29 at 57-59.

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