Judgments

Decision Information

Decision Content

A-537-86
Alberta Institute on Mental Retardation (Appel- lant)
v.
The Queen (Respondent)
INDEXED AS: ALBERTA INSTITUTE ON MENTAL RETARDATION v. CANADA
Court of Appeal, Pratte, Heald and Mahoney JJ.-Edmonton, May 14; Ottawa, June 23, 1987.
Charities - Charitable corporation - Fund-raising vehi cle for charities helping mentally retarded - Entering into arrangement with second hand store - Taxpayer collecting used goods for store - Receiving $2,000 monthly plus 50% of sales over $2,000 - All funds received from store used for charity - Minister denying charitable registration as taxpayer (1) not operating exclusively for charitable purposes and (2) carrying on business other than "related business" - Statu tory scheme - Argument that taxpayer wholesaler to store and carrying on business under s. 248(1) rejected - Involve ment with commercial enterprise not end but means of fulfill ing charitable purposes - Appellant's sole purpose to raise money for benefit of retarded - As to "related business", Court approving tests in Drache work on taxation of charities - Appeal allowed - Income Tax Act, S.C. 1970-71-72, c. 63, ss. 110(8)(c) (as am. by S.C. 1984, c. 45, s. 35(7)), 149(1)(f) (as am. by S.C. 1976-77, c. 4, s. 59(1)), 149.1 (as added idem, s. 60(1)), (1) (as am. by S.C. 1984, c. 45, s. 57), (a),(b) (as am. idem, s. 57(2)), (f),(g) (as am. idem, s. 57 ( 4 )), (j),( 2 )(a),(b) (as am. idem, s. 57(8)), (3)(a),(b) (as am. idem, s. 57 ( 9 )), (c) , (d) , (e) , 248(1) (as am. by S.C. 1976-77, c. 4, s. 76(2); 1979, c. 5, s. 66(3)).
Income tax - Corporations - Charities - Registration of charity under Income Tax Act - "Related business" Registrability as charity of corporate entity engaging in com mercial activity but turning over all funds received to regis tered charities - Income Tax Act, S.C. 1970-71-72, c. 63, ss. 110(8)(c) (as am. by S.C. 1984, c. 45, s. 35(7)), 149(1)U1 (as am. by S.C. 1976-77, c. 4, s. 59(1)), 149.1 (as added idem, s. 60(1)), v (1) (as am. by S.C. 1984, c. 45, s. 57), (a),(b) (as am. idem, s. 57(2)), (f),(g) (as am. idem, s. 57 ( 4 )), (j),(2)(a),(b) (as am. idem, s. 57(8)), (3)(a),(b) (as am. idem, s. 57 ( 9 )), (c) , (d),(e), 248(1) (as am. by S.C. 1976-77, c. 4, s. 76(2); 1979, c. 5, s. 66(3)).
The appellant is a corporation constituted exclusively for charitable purposes. It was to serve as a fund-raising vehicle for various registered charities helping the mentally retarded. To that end, the appellant and a second hand business entered into an arrangement whereby the appellant would solicit and collect used household items which the business would sell at a profit. In return, the appellant was to receive a minimum monthly advance of $2,000 plus 50% of all sales in excess of the monthly guaranteed amount. All the funds received by the appellant pursuant to that arrangement were to be turned over to various registered charities helping the mentally retarded. This is an appeal from the Minister of National Revenue's refusal to register the appellant as a "registered charity" within the meaning of paragraph 110(8)(c) of the Income Tax Act.
The issues are (1) whether, in view of its arrangement with a commercial enterprise, the appellant is operating exclusively for charitable purposes and (2) whether the appellant is carrying on a business that is not a "related business" within the meaning of section 149.1 of the Act.
Held (Pratte J. dissenting), the appeal should be allowed.
Per Heald J. (Mahoney J. concurring): It cannot be said that the appellant was not operating in fulfillment of any of its charitable purposes since one of the provisions of its Memoran dum of Association empowers it to raise funds for the purpose of carrying out its objects. And it is far from irrelevant that all funds collected were given to charitable organizations as set out in the objects of the appellant. Nor does the association with a commercial enterprise necessarily mean that the appellant is carrying on a business as defined in subsection 248(1) of the Act. In this case, the business aspect of the operation is merely incidental to the attainment of the charitable objects of the appellant. It follows that the appellant can be said to be operating exclusively for charitable purposes.
Furthermore, the business carried on by the appellant, assuming that it is a business, is a "related business" within the meaning of paragraph 149.1(3)(a) of the Act. The appellant meets two of the four criteria suggested, after noting the paucity of case law on the subject, by Arthur B. C. Drache in Canadian Tax Treatment of Charities and Charitable Dona tions: (1) there is a very close connection between the activity and the charity and (2) there is no profit motive in the appellant's operation. The "competition" and "length of time" criteria cannot be applied herein. This interpretation is con sistent with the intention to recognize the contemporary reality of the fund-raising activities of modern charitable organiza tions.
Per Pratte J. (dissenting): While there is no doubt that the appellant is a charitable foundation that uses all its income for charitable purposes, its commercial operation cannot be said to be related to its charitable objects. There is no doubt that it is a "business" within the meaning of paragraph 149.1(3)(a).
A business can be said to be related to the objects of a charity when the commercial activity can be said to be con tributing to the realization of the charitable objects of the charity. It is not sufficient that all the income from a business
operated by a charity is used for charitable purposes, otherwise paragraph 149.1(3)(a) would be devoid of effect. It would apply only when the income from the business was not used for charitable purposes. But there would be no need to invoke that provision since registration could be revoked on the ground that the foundation is not operated exclusively for charitable purposes.
CASES JUDICIALLY CONSIDERED
APPLIED:
British Launderers' Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462; Guaranty Trust Company of Canada v. Minister of National Reve nue, [1967] 1 S.C.R. 133; (1966), 67 DTC 5003.
DISTINGUISHED:
Hutterian Brethren Church of Wilson v. R., [1980] 1 F.C. 757; (1979), 79 DTC 5474 (C.A.).
REFERRED TO:
McLeod, James B., v. Minister of Customs and Excise (1925), 1 DTC 73 (Ex. Ct.).
COUNSEL:
C. Philip Clarke and Chereda L. Bodner for
appellant.
Helen C. Turner for respondent.
SOLICITORS:
Field & Field, Edmonton, for appellant. Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J. (dissenting): I have had the advan tage of reading the reasons for judgment prepared by my brother Heald. I regret not to be able to agree with him.
The appellant is undoubtedly a charitable foun dation that 'uses the whole of its income for chari table purposes. However, I am of opinion that it carries on a business that is unrelated to its chari table objects. For that reason, I cannot criticize the Minister's decision refusing to register it as a registered charity.
The expression "business" found in paragraph 149.1(3)(a) of the Income Tax Act [R.S.C. 1952,
c. 148 (as am. by S.C. 1970-71-72, c. 63, s. 1; 1976-77, c. 4, s. 60(1))] is given a very wide definition by subsection 248 (1) [as am. by S.C. 1979, c. 5, s. 66(3)]; in the French version of paragraph 149.1(3)(a), it is rendered by the phrase "activité commerciale" which, though not defined in the Act, has also a very wide meaning. In my opinion, the appellant, when it collects used clothing or other household items and sells them at a profit, is clearly both carrying on a business and engaged in a commercial activity. The only ques tion, in my view, is whether that business or commercial activity is related to the charitable purposes of the appellant.
When can a business be said to be related to the objects of a charity?—When, in my view, there exists between the commercial activity in question, considered in itself, and the charitable objects of the charity such a relationship that it can be said that by engaging in the commercial activity in question the charity is, in effect, contributing to the realization of its charitable objects. For instance, such a relationship can be said to exist between the commercial operation of a parking lot or a cafeteria and the operation of a hospital. The mere fact that the whole of the income derived from a business operated by a charity is used for the charitable purpose of the charity is not suffi cient to make that business a related business. And this is so because the necessary relationship must exist between the charitable objects and the com mercial activity or business itself. If it were suffi cient, in order to create the necessary relationship, that the income of the business be entirely used for charitable purposes, paragraph 149.1(3)(a) would be devoid of effect. Indeed, according to that interpretation, the Minister could only cancel a registration on the ground that the charity oper ates a business "that is not related" if the income derived from that business was not used for chari table purposes; in such a case, however, there would be no need for the Minister to invoke para graph 149.1(3)(a) since he could revoke the regis tration on the ground that the foundation is not operated exclusively for charitable purposes.
I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment rendered in English by
HEALD J.: This is an appeal from a decision of the Minister of National Revenue refusing the appellant's application for registration as a "regis- tered charity" as that expression is defined in paragraph 110(8)(c) of the Income Tax Act [as am. by S.C. 1984, c. 45, s. 35(7)]. The appellant, constituted exclusively for charitable purposes, and incorporated under the laws of Alberta for such purposes, was established by the Alberta Associa tion for the Mentally Handicapped (the Associa tion). The appellant was to serve as a fund-raising vehicle for various registered charities carrying on programmes for the benefit of persons suffering from mental retardation. For that purpose, the appellant entered into a fund raising arrangement with Value Village Stores Ltd. (Value Village). Value Village was a British Columbia corporation, which also operated in Alberta. It was operated for profit and was completely independent of the appellant.
The contract between the appellant and Value Village provided that:
(a) used household items were to be solicited and collected by the appellant using collection vehicles leased by the appellant from Value Village;
(b) the appellant was to be reimbursed by Value Village for all expenses incurred by the appellant in the course of its solicitation and collection activities; and
(c) Value Village agreed to provide to the appel lant minimum monthly advances of $2,000 in respect of the sale of the goods collected pursuant to (a) supra. Value Village further agreed to contribute 50% of all retail sales in excess of the guaranteed monthly advance of $2,000.
The agreement between the appellant and the Association was to the effect that all of the funds received by the appellant from Value Village were forwarded to the Association for its use in chari-
table projects. There is no suggestion that this term of the agreement was not carried out.
The appellant applied to the Minister of Nation al Revenue for registration as a "registered chari ty" on the basis that it was a "public foundation" as that term is defined in the Income Tax Act. This application was refused because, in the view of the Minister, the appellant was:
(a) not operating exclusively for charitable pur poses; and
(b) it was carrying on a business other than a "related business" as partially defined in para graph 149.1(1)(j) of the Income Tax Act [as added by S.C. 1976-77, c. 4, s. 60(1)].
THE ISSUES
The issues in this appeal are twofold and may be shortly stated:
(a) Whether, because of its relationship with Value Village, the appellant is not operating exclu sively for charitable purposes; and
(b) Whether the appellant is carrying on a busi ness that is not a "related business" within the meaning set out in section 149.1 of the Income Tax Act [as added by S.C. 1976-77, c. 4, s. 60(1)].
THE STATUTORY SCHEME
The relevant sections of the Income Tax Act for the purposes of this appeal are:
149. (1) No tax is payable under this Part upon the taxable income of a person for a period when that person was
(J) a registered charity; [as am. by S.C. 1976-77, c. 4, s. 59(1)]
248. (1) In this Act,
"business" includes a profession, calling, trade, manufacture or undertaking of any kind whatever and, except for the pur poses of paragraph 18(2)(c), an adventure or concern in the nature of trade but does not include an office or employment;
"registered charity" has the meaning assigned by subsection 110(8); [as am. by S.C. 1976-77, c. 4, s. 76(2)]
110. (8) In this section,
(c) "registered charity" at any time means
(i) a charitable organization, private foundation or public foundation, within the meanings assigned by subsection 149.1(1), that is resident in Canada and was either created or established in Canada, or
(ii) a branch, section, parish, congregation or other divi sion of an organization or foundation described in subpara- graph (i), that is resident in Canada and was either created or established in Canada and that receives dona tions on its own behalf,
that has applied to the Minister in prescribed form for registration and that is at that time registered as a charitable organization, private foundation or public foundation.
149.1 (1) In this section, section 172 and Part V, [as am. by S.C. 1984, c. 45, s. 57]
(a) "charitable foundation" means a corporation or trust constituted and operated exclusively for charitable purposes, no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof and that is not a charitable organization; [Emphasis added.]
(b) "charitable organization" means an organization, wheth er or not incorporated,
(i) all the resources of which are devoted to charitable activities carried on by the organization itself,
(ii) no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprie tor, member, shareholder, trustee or settlor thereof,
(iii) more than 50% of the directors, trustees, officers or like officials of which deal with each other and with each of the other directors, trustees, officers or officials at arm's length, and
(iv) where it has been designated as a private foundation or public foundation pursuant to subsection 110(8.1) or (8.2) or has applied for registration under paragraph 110(8)(c) after February 15, 1984, not more than 50% of the capital of which has been contributed or otherwise paid in to the organization by one person or members of a group of persons who do not deal with each other at arm's length and, for the purpose of this subparagraph, a refer ence to any person or to members of a group does not include a reference to Her Majesty in right of Canada or a province, a municipality, another registered charity that is not a private foundation, or any club, society or association described in paragraph 149(1)(l); [as am by S.C. 1984, c. 45, s. 57(2)]
(/) "private foundation" means a charitable foundation that is not a public foundation;
(g) "public foundation" means a charitable foundation of which,
(i) where the foundation has been registered after Febru- ary 15, 1984 or designated as a private foundation or charitable organization pursuant to subsection 110(8.1) or (8.2),
(A) more than 50% of the directors, trustees, officers or like officials deal with each other and with each of the other directors, trustees, officers or officials at arm's length, and
(B) not more than 50% of the capital contributed or otherwise paid into the foundation has been so con tributed or otherwise paid in by one person or members of a group of such persons who do not deal with each other at arm's length, or
(ii) in any other case,
(A) more than 50% of the directors or trustees deal with each other and with each of the other directors or trustees at arm's length, and
(B) not more than 75% of the capital contributed or otherwise paid in by one person or by a group of persons who do not deal with each other at arms' length
and, for the purpose of clause (i)(B), a reference to any person or to members of a group does not include a reference to Her Majesty in right of Canada or a province, a munici pality, another registered charity that is not a private founda tion, or any club, society or association described in para graph 149(I)(1); [Emphasis added.] [as am. idem, s. 57(4)].
(j) "related business" in relation to a charity includes a business that is unrelated to the objects of the charity if substantially all of the people employed by the charity in the carrying on of that business are not remunerated for such employment; [Emphasis added.]
(2) The Minister may, in the manner described in section 168, revoked the registration of a charitable organization for any reason described in subsection (1) of that section or where the organization
(a) carries on a business that is not a related business of that charity; or
(b) fails to expend in any taxation year, on charitable activities carried on by it and by way of gifts made by it to qualified donees, amounts that, in the aggregate, are at least equal to the amount that would be determined for the year under subpara- graph (1)(e)(i) in respect of the organization if it were a charitable foundation. [as am. idem, s. 57(8)]
(3) The Minister may, in the manner described in section 168, revoke the registration of a public foundation for any reason described in subsection (1) of that section or where the foundation
(a) carries on a business that is not a related business of that charity;
(b) fails to expend in any taxation year, on charitable activities carried on by it and by way of gifts made by it to qualified donees, amounts that, in the aggregate, are at least equal to its disbursement quota for that year; [as am. idem, s. 57(9)]
(c) since June 1, 1950, acquired control of any corporation;
(d) since June 1, 1950, incurred debts, other than debts for current operating expenses, debts incurred in connection with the purchase and sale of investments and debts incurred in the course of administering charitable activities; or
(e) at any time within the 24 month period preceding the day on which notice is given to the public foundation by the Minister pursuant to subsection 168(I) and at a time when the public foundation was a private foundation, took any action or failed to expend amounts such that the Minister was entitled, pursuant to subsection (4), to revoke its registration as a private foundation. [Emphasis added.]
ISSUE A—IS THE APPELLANT OPERATING EXCLUSIVELY FOR CHARITABLE PURPOSES?
At the outset, and in response to a question from the Court, counsel for the respondent agreed that the imposition of the appellant, a corporate entity, into the Association's fund-raising activities is not a factor in the determination of the issues in this appeal. It was her position that although the appel lant corporation was constituted exclusively for charitable purposes, it is not being operated exclu sively for charitable purposes as required by para graph 149.1(1)(a) supra. She submitted that since the appellant's sole activity is its commercial involvement with Value Village in which it is acting as a wholesaler supplying goods to Value Village, it is in fact carrying on a business in the ordinary sense. In her view, such an activity would be encompassed by the definition of business con tained in subsection 248(1) of the Act supra. It was her further submission that since the fund- raising arrangement with Value Village is present ly the appellant's sole activity, it is not operating in fulfillment of any of its charitable purposes as described in its Memorandum of Association (Case, pages 10 and 11).
Dealing initially with her last submission relat ing to lack of fulfillment of any of the charitable purposes enumerated in the Memorandum of Association, I see no merit in this submission. Subparagraphs 2(a) to (h) of the Memorandum set out objects, all of which, inter alia, relate to the welfare of persons suffering from mental retarda-
tion and other developmental handicaps and the welfare of their families as well. Subparagraph 2(j)(i) empowers the appellant "to raise funds for the purpose of carrying out the objects of the company in a manner not inconsistent with the objects of the company." The raising of funds permitted pursuant to subparagraph 2(j)(i) is just as much an object of the appellant as any of the other objects enumerated in paragraph 2. As noted supra, all monies collected were given to chari table organizations as set out in the objects of the appellant. Accordingly, I conclude that the appel lant's charitable purposes as described in the Memorandum of Association were being fulfilled.
Turning now to the submission that the appel lant is carrying on a business as defined in subsec tion 248(1) of the Act because of its commercial involvement with Value Village, I do not think that the association of a charitable organization with a commercial enterprise necessarily impresses that charitable organization with the characteris tics of a "business" within the definition set out in subsection 248(1) supra. Where, as in this case, the involvement of the charitable organization with a commercial enterprise is not an end or purpose in itself but is merely a means to the fulfillment of the purposes of the charitable organ ization which are exclusively charitable, that involvement will not result in the charitable organ ization losing its exemption.' In that case, Lord Denning goes on to point out, however, that if such an "incidental" purpose ceases to be a means to an end and becomes an end in itself, it becomes an additional or collateral purpose of the organiza tion, thereby transforming it into an organization which is no longer exclusively charitable. Such a circumstance would cause it to lose its exemption. In my view, such a change has not occurred in the case at bar so as to make the appellant an organi zation having a number of purposes, some chari table and some non-charitable. Counsel for the respondent cited the decision of this Court in
See: British Launderers' Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462, at p. 467, per Denning L.J. This decision was followed by the Supreme Court of Canada in Guaranty Trust Company of Canada v. Minister of National Revenue, [1967] S.C.R. 133; (1966), 67 DTC 5003.
Hutterian Brethren Church of Wilson v. R. 2 The facts in that case present a classic example of an organization with mixed objects, some charitable and some non-charitable since there that appellant was, inter alia, in the business of farming for a profit. That, however, is not the situation in the particular circumstances of this case. The sole purpose of the appellant, at all times, has been and is to raise money for the benefit of persons (and their families) suffering from mental retardation. The means chosen to raise such monies, i.e., the solicitation for and collection of used goods is, in reality, simply a conversion of goods into money and does not itself change the nature of the appel lant's operation in any way.'
For these reasons I have concluded that, in the somewhat unusual circumstances here present where all of the monies received are dedicated to the charitable purposes for which the appellant was incorporated and where the business aspect of the operation is merely incidental to the attain ment of its charitable objects, the appellant can, indeed, be said to be operating exclusively for charitable purposes.
ISSUE B—IS THE APPELLANT CARRYING ON A BUSINESS THAT IS NOT A "RELATED BUSINESS"?
Since I have concluded that the appellant is operating exclusively for charitable purposes, it would appear that it meets the definition of chari table foundation as set out in paragraph 149.1(1) (a) of the Act. Likewise, it appears to meet the definition of "public foundation" set out in paragraph 149.1(1)(g) of the Act. Thus, prima facie, it would appear to be entitled to registration as a public foundation. However, paragraph 149.1(3)(a) provides for de-registration of a public foundation where it carries on a business that is not a related business of that foundation. In the view of the respondent, the appellant carries on a business that is unrelated to its charitable objec tives. As noted earlier herein, the respondent has the view that because of the contractual relation ship between the appellant and Value Village, the
2 [1980] 1 F.C. 757; (1979), 79 DTC 5474 (C.A.).
3 Compare: McLeod, James B., v. Minister of Customs and Excise (1925), 1 DTC 73, at p. 76, Exchequer Court of Canada per Maclean J.
appellant is carrying on a business in the ordinary sense of the word and as defined in subsection 248(1). The retail/wholesale relationship antici pates profits and has in fact produced profits for the appellant. Pursuant to the terms of the agree ment with Value Village, the appellant assumes commercial risks and obligations as set out in the agreement. In the view of the respondent, the major focus for the appellant must be its commer cial operations. Finally, the respondent refers to the definition of "related business" as set out in paragraph 149.1(1)(j). Her submission is that since "substantially all" of the employees of the appellant who are engaged in carrying out the appellant's obligations under the contract with Value Village are paid by the appellant, the condi tion set out in paragraph 149.1(j) has not been satisfied. It is the respondent's further submission that the appellant's commercial operation is not converted into a "related business" simply because the funds generated by its commercial activities are dedicated solely to charitable purposes. In her submission, the fund-raising activities of the appel lant are incidental to its business activities and not the reverse.
In view of my conclusion under Issue A supra, that the business aspect of the appellant's opera tion was merely incidental to the attainment of its charitable objects, I doubt that the appellant can be said to be carrying on business as that term is generally understood. However, the definition of "business" in subsection 248(1) is very wide. Since that definition includes an "undertaking" and since normal dictionary definitions of "undertak- ing" include an "enterprise" which, by normal definition includes "a firm or business" an argu ment can be made that the appellant was here engaged in an undertaking or business. However, such a finding is not necessary or decisive in the circumstances at bar because the real issue here is whether the appellant's activity, assuming it to be a "business" is a "related business". A useful approach to the problem of defining a "related business" is to be found in the work by Arthur B. C. Drache entitled Canadian Tax Treatment of Charities and Charitable Donations, Second Edi tion, 1980. Mr. Drache, at page 12, quotes from
the Budget Speech of May 25, 1976, when the charities amendments were being introduced in Parliament. On that occasion the Minister of Finance said:
Under the present rules, technically no charity can carry on a business. Nonetheless, many charities do indeed carry on worthwhile fund-raising activities which might be construed as business activities. I see no reason to alter this situation as it exists in practice. On the contrary, I want to bring the law into conformity with the current standards of the community. [Emphasis added.]
When these provisions were being considered in Committee in the House of Commons, the Minis ter gave as an example of a related business the operation of a cafeteria on the premises of an art gallery or a hospital. He said that "the basic principle is that the activity should be related to those of the charity and it should not become the vehicle of a substantial commercial business."
After noting a "paucity of case law" on this subject, Mr. Drache (pages 12-13) suggests four different criteria for deciding this issue:
1. The degree of relationship of the activity to the charity;
2. Profit motive;
3. The extent to which the business operation competes with other businessmen; and
4. The length of time the operation has been carried on by the charity.
Mr. Drache concludes by suggesting that "meeting one or more of these tests will probably ensure that the business activity will be acceptable from the point of view of Revenue Canada." While it must be understood that Mr. Drache's approach in this article is more pragmatic than jurisprudential, the tests suggested by him strike me as being in accordance with the statutory scheme as well.
In my view, the factual situation at bar satisfies the first test supra, because the commercial opera-
tion at bar is exclusively related to charitable purposes since all monies collected are so allocat ed. Accordingly, the commercial activity has a very close connection with the charity. Likewise, the second test is met since there is no profit motive in the appellant's operation. All monies received are remitted to the Association (including the monies reimbursed to it for its solicitation and collection activities). Insofar as the third test is concerned, there is a lack of evidence on this issue. Accordingly, it is not possible to make any finding in this regard. Likewise, the fourth test has no application here since the appellant has only been in existence since 1985.
Based then on Mr. Drache's suggested tests, I conclude that the appellant would satisfy those tests insofar as the circumstances of this case are concerned.
Dealing with the submission by the respondent in respect of paragraph 149.1(1)(j), I do not think the extended definition of "related business" as set out therein has any application to these facts because it operates only in respect of "a business that is unrelated to the objects of the charity". Since I have concluded that the appellant's "busi- ness" here is closely associated with and related to the objects of the charity, it is unnecessary to consider the application of paragraph 149.1(1)(j). If the operation of a cafeteria on the premises of an art gallery or the operation of a parking lot adjacent to and on premises owned by a hospital, for example, can be said to be related businesses even though the cafeteria and the parking lot may be operated by concessionaires for profit, then surely an activity such as that of this appellant must be in the same category. This type of activity, so long as it does not become "the vehicle of a substantial commercial business" is of the kind clearly envisaged by the charities amendments as being included in the expression "related business of that charity". Such an interpretation is con sistent with the clear intention of Parliament to recognize the contemporary reality insofar as the
fund-raising activities of modern charitable organ izations are concerned.
Accordingly, and for all of the above reasons, I would allow the appeal, set aside the decision of the Minister and refer the matter back to the Minister with the direction that the appellant be granted registration as a registered charity. Since the appellant did not ask for costs, and since no special reasons were advanced in support of an award of costs, I would make no order in respect thereof.
MAHONEY J.: I agree.
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