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The Lord works in mysterious ways

Federal Court of Appeal

The Federal Court of Appeal recently released its decision in the Church of Atheism of Central Canada case. While the Appellant appears to have been self-represented the case provides guidance to lawyers in the area and corrects what may have been the start of a very difficult path for the law of charities.

The case involved a clear test of the definition of religion and the Appellant intended to try and qualify Atheism (or at least a variant of it) as religion. In order to do that that the “Church” incorporated and stated “[w]e believe…that our Ten Commandments of Energy are sacred texts because they were created by a wise human being who consists of pure, invisible Energy and has acknowledged Energy’s existence”. The organization brought Charter arguments to the case and argued that it was being denied its freedom of religion and that the CRA was contravening section 27 of the Charter by suppressing diversity.

The mistake in incorporating became easily apparent in that not every right in the Charter is available to every corporation, in this case the section 15 equality rights, and thus, some of the Charter arguments that were brought were immediately dispensed with. On the bright side though, the Court’s utilized the same type of analysis that Justice Morgan used in the Canada Without Poverty case in the Ontario Courts. There the argument was brought by the Government that it was not denying the charities’ rights to engage in political activities, but rather was denying the right to charitable status if they were to do such activities. Justice Morgan’s analysis brought in other Supreme Court jurisprudence which said that any burden imposed by the government on the exercise of a right, including a cost, can qualify as an infringement of that right if the burden is neither trivial nor insubstantial.

Here the Federal Court of Appeal similarly applied reasoning to question whether a refusal of registration was a trivial or insubstantial burden. While the Court decided it was not in this case, the fact that it considered the question leaves room for hope. This type of analysis may prove to be a recurrent theme in future charity law cases which seeks to expand the law of charity.

The movement to advance the law of charity received another unexpected lift from this case when it explicitly referred to the fact that in the “absence of legislative reform, Canadian Courts must contend with difficulty of articulating how the law of charities is to keep “moving” in a manner that is consistent with the nature of the common law.” This statement was quoting the Supreme Court in the Vancouver Society of Immigrant Women. However, there was some concern that the Federal Court of Appeal may be going in its own direction on this in the Credit Counselling case where Justice Stratus mentioned that, in his view, the prevention of poverty, as opposed to the relief of poverty, would require Parliamentary legislation. Clearly, the Federal Court of Appeal here understands its role in advancing the law of charities and one sees signs that this case will help the Court move in that direction.

By Adam Aptowitzer

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Drache Aptowitzer LLP

Tax and Charity Lawyers at Drache Aptowitzer LLP
Drache Aptowitzer LLP is one of Canada’s foremost experts in the law related to charities and non-profit organizations. Their team of bloggers is led by Adam Aptowitzer LLB. He is a lawyer practicing in the areas of charity and tax law. He is a member of both the bars of Alberta and Ontario. He has been speaking and writing on the topic of charity law for several years and been published in numerous publications including the Canadian Taxpayer, the Canadian Fundraiser and the Not-for-Profit News and has been cited as an expert in many publications including the National Post.Read more here
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