Robertson
J.A.:
—
This
appeal
is
brought
pursuant
to
subsection
172(3)
of
the
Income
Tax
Act
(the
“Act”)
from
a
notice
of
intention,
issued
by
the
Minister
of
National
Revenue,
to
revoke
the
appellant’s
registration
as
a
charity
as
provided
for
under
subsection
168(1).
While
several
issues
were
raised
in
argument,
it
is
common
ground
that
this
appeal
can
succeed
only
if
publication
of
the
appellant’s
magazine
Briarpatch
is
deemed
a
charitable
activity.
For
the
reasons
which
follow,
I
am
of
the
opinion
that
that
publication
does
not
come
within
the
ambit
of
the
well-established
categories
of
charitable
activities
as
originally
laid
down
by
Lord
Macnaghten
in
Pemsel
v.
Special
Commissioners
of
Income
Tax
(sub
nom.
Commission
for
Special
Purposes
of
Income
Tax
v.
Pemsel),
[1891]
A.C.
531,
nor
within
the
common
law
jurisprudence
which
has
developed.
In
particular,
the
reasoning
of
this
Court
and
the
facts
in
Native
Communications
Society
of
B.C.
v.
Minister
of
National
Revenue,
[1986]
3
F.C.
471
(F.C.A.)
cannot
further
the
appellant’s
case.
The
essential
facts
leading
up
to
this
appeal
are
as
follows.
The
appellant
commenced
operation
in
1973
with
a
view
to
publishing
a
monthly
newsletter
(“Notes
from
the
Briarpatch”)
for
the
Unemployed
Citizens
Welfare
Improvement
Council
of
Saskatoon.
In
1974
the
appellant
was
incorporated,
as
a
non-profit
organization,
under
the
provisions
of
the
Societies
Act
of
Saskatchewan.
In
1975
it
applied
for
and
obtained
registered
status
as
a
charitable
organization.
The
aims
and
objectives,
as
communicated
to
Revenue
Canada,
are
identical
to
those
submitted
to
the
provincial
authorities
with
respect
to
the
incorporation.
They
read
as
follows:
-
communications
link
between
low
income
organisations
individuals;
-
provide
individuals
and
organisations
with
access
to
the
media;
-
evaluate
the
views
and
problems
of
welfare
recipients,
unemployed
and
low
income
people
known
to
the
public;
-
evaluate,
analyse
and
provide
constructive
criticism
of
government
programs
dealing
with
low
income
people;
-
provide
factual
and
relevant
information
to
the
people;
-
content
of
the
newsletter
should
be
such
that
it
is
valuable
to
low
income
people;
-
Briarpatch
Society
shall
carry
on
educational
workshops
and
partake
in
other
media
workshops;
-
identify
common
problems
between
and
among
various
groups
around
these
issues;
-
Briarpatch
Society
educate
regular
media
to
present
the
problems
of
the
poor
fairly;
-
break
down
hostilities
and
barriers
between
people.
In
1987
the
Department
of
National
Revenue
conducted
an
audit
of
the
appellant’s
activities.
For
purposes
of
this
appeal
it
is
sufficient
to
state
that
by
that
date
the
principal
activity
carried
on
by
the
appellant
was
the
publication
and
distribution
of
the
magazine
Briarpatch
which
is
published
ten
times
per
year.
In
its
written
submissions,
the
appellant
adopts
the
position
that
it
publishes
articles
of
specific
interest
and
application
to
Canada’s
poor,
with
the
specific
goals
of
education
and
the
alleviation
of
poverty
through
education.
The
articles
are
written
by
educators
from
all
fields
and
have
been
used
as
teaching
tools
in
university
courses.
The
appellant
also
maintains
that
the
dissemination
of
information
to
and
about
the
poor
constitutes
the
conferral
of
a
benefit.
While
conceding
for
purposes
of
this
appeal
that
the
appellant
was
“properly
charitable
at
the
time
of
registration”,
the
respondent
takes
the
position
that
since
that
date
the
focus
of
the
magazine
has
shifted
from
dealing
with
issues
directly
affecting
low
income
people
-
the
poor
-
to
issues
of
general
interest.
A
brief
review
of
the
relevant
legal
principles
will
help
place
the
appellant’s
argument
in
perspective.
As
the
Act
does
not
define
charitable
activities
the
issue
falls
to
be
determined
by
common
law
provisions.
The
common
law
classifies
a
charity
in
four
ways:
(1)
the
relief
of
poverty;
(2)
the
advancement
of
education;
(3)
the
advancement
of
religion;
and
(4)
purposes
beneficial
to
the
community,
not
falling
within
the
preceding
categories.
In
oral
argument
the
appellant
chose
not
to
advance
the
thesis
that
the
publication
of
Briarpatch
was
directed
at
the
relief
of
poverty.
Rather
it
pursued
the
issue
in
terms
of
the
magazine’s
principal
focus
being
poverty
and
in
terms
of
its
primary
activity
coming
within
both
the
second
and
fourth
categories;
that
is
to
say
the
advancement
of
education
and
a
purpose
which
is
otherwise
beneficial
to
the
community
in
a
charitable
sense.
Turning
to
the
second
category,
the
law
presently
requires
that
someone
claiming
to
advance
education,
such
as
the
appellant,
must
establish
that
its
publication
is
directed
toward
the
“formal
training
of
the
mind”
or
“the
improvement
of
a
useful
branch
of
human
knowledge”:
see
Positive
Action
Against
Pornography
v.
Minister
of
National
Revenue,
[1988]
1
C.T.C.
232,
88
D.T.C.
7186
(C.A.)
per
Stone
J.A.
As
stated
by
MacGuigan
J.A.
in
Maclean
Hunter
Limited
v.
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise,
[1988]
1
C.T.C.
174,
88
D.T.C.
6096
at
page
177
(D.T.C.
6098)
(F.C.A.):
When
the
word
“education”
or
“educational”
is
used
without
qualification,
it
has
reference
to
a
fundamental
process
of
learning
which
is
aimed
at
preparing
either
for
life
in
general
or
for
a
large
purpose
such
as
a
particular
profession
or
trade,
and
is
in
any
event
without
an
immediately
utilitarian
focus.
Although
broadly
worded
as
a
residual
“catch-all”,
the
fourth
category
has
been
interpreted
cautiously,
if
not
narrowly,
by
the
courts.
What
constitutes
a
charitable
benefit
to
the
community
must
be
determined
in
light
of
the
Preamble
to
the
Charitable
Uses
Act,
1601
(43
Eliz.
I,
c.
4):
The
relief
of
aged,
impotent,
and
poor
people;
the
maintenance
of
sick
and
maimed
soldiers
and
mariners,
schools
of
learning,
free
schools,
and
scholars
in
universities;
the
repair
of
bridges,
ports,
havens,
causeways,
churches,
seabanks,
and
highways;
the
education
and
preferment
of
orphans;
the
relief
of
stock,
or
maintenance
of
houses
of
correction;
marriage
of
poor
maids;
suppor-
tation,
aid,
and
help
of
young
tradesmen,
handicraftsmen,
and
persons
decayed;
the
relief
or
redemption
of
prisoners
or
captives;
and
the
aid
or
ease
of
any
poor
inhabitants
concerning
payment
of
fifteens,
setting
out
of
soldiers,
and
other
taxes.
If
the
activity
in
question
is
not
within
the
“spirit
and
intendment”
of
those
enunciated
in
the
preamble,
in
addition
to
being
of
benefit
to
the
community,
then
it
cannot
be
viewed
as
charitable
in
the
legal
sense:
See
generally
Guaranty
Trust
Company
of
Canada
v.
Minister
of
National
Revenue,
[1967]
S.C.R.
133
at
page
141
and
V.
Krishna,
The
Fundamentals
of
Canadian
Income
Tax,
5th
ed.,
(Toronto:
Carswell,
1995)
at
pages
579-80.
One
must
also
consider
the
trend
of
those
decisions
which
have
recognized
certain
objects
and
purposes
as
charitable
under
the
fourth
heading
and
ask
whether
by
extension
or
analogy
the
case
under
consideration
is
in
line
with
the
earlier
precedents:
see
D’Aguiar
v.
Guyana
Commissioner
of
Inland
Revenue,
[1970]
T.R.
31
at
page
33
per
Lord
Wilberforce.
This
approach
merely
reflects
the
understanding
that
“the
law
of
charity
is
a
moving
subject
which
may
well
have
evolved
since
1891”:
per
Lord
Wilberforce
in
Scottish
Burial
Reform
&
Cremation
Society
v.
Glasgow
(City),
[1967]
3
All
E.R.
215,
[1968]
A.C.
138
at
page
154
(H.L.);
cited
with
approval
in
Native
Communications
Society,
per
Stone
J.A.
at
pages
175-76
(D.T.C.
6357-58).
That
the
law
of
charity
can
be
a
moving
subject
is
aptly
illustrated
in
Native
Communications
Society.
In
that
case
the
taxpayer
was
a
non-profit
native
corporation
whose
objects
were
to
produce
media
and
television
programs
of
relevance
to
the
native
people
of
British
Columbia
and
to
publish
a
newspaper
on
subjects
of
relevance
to
the
native
community.
The
appeal
from
the
Minister’s
refusal
to
register
the
corporation
as
a
charitable
organization
was
allowed
by
this
Court.
In
reaching
its
conclusion
the
Court
had
regard
to
the
special
legal
position
occupied
by
the
Native
peoples
in
Canadian
society.
I
will
say
more
of
this
case
shortly.
Having
regard
to
the
foregoing
legal
framework
it
remains
to
be
decided
whether
the
publication
of
Briarpatch
constitutes
a
charitable
activity.
At
this
stage
the
answer
is
essentially
one
of
fact
or
personal
judgment
involving
an
evaluation
of
the
magazine’s
contents.
In
my
opinion,
the
publication
does
not
fall
within
the
category
of
the
advancement
of
education
as
that
phrase
is
applied
in
the
law
of
charities.
It
is
evident
that
the
magazine
is
not
directed
toward
the
training
of
the
mind
through
structured
analysis
or
presentation
of
knowledge.
I
agree
with
counsel
for
the
Minister
that
the
publication
lacks
the
continuity,
structure
and
analysis
needed
to
meet
those
tests.
I
also
agree
that
the
fact
that
the
magazine
is
used
for
classroom
purposes
in
universities
does
not
render
it
educational
in
the
charitable
sense.
In
support
of
the
above
conclusions,
I
need
only
list
a
sampling
of
the
topics
canvassed
in
the
May,
1986
edition
of
Briarpatch:
“Wheat
Pool
closures”,
“Farmer’s
stage
occupation”,
“Potash
worker’s
strike”,
“Central
American
teach-in”,
“Liberation
theology”.
Under
the
heading
culture,
that
publication
contains
a
review
of
two
television
sitcoms:
The
Cosby
Show
and
Kate
and
Allie.
The
most
telling
evidence
as
to
the
nature
of
the
publication
is
found
in
the
appellant’s
marketing
literature.
In
an
effort
to
attract
subscribers,
Briarpatch
has
described
itself
as
an
“independent
voice
for
social
change”
and
as
offering
“views
and
analysis
without
the
emerald-tinted
glasses”
(Appeal
Record
at
page
537).
Another
brochure
concludes
that
“Our
broad
coverage
of
politics,
women’s
issues,
and
culture
guarantees
good,
informative
reading
ten
times
a
year”
(Appeal
Record
at
page
393).
It
cannot
be
denied
that
Briarpatch
is
informative
and
educational
in
the
broad
sense.
But
these
accolades
are
equally
applicable
to
other
commercial
publications.
Moreover,
they
cannot
propel
one
to
the
conclusion
that
the
publication
is
intended
to
advance
education
in
the
charitable
sense.
I
turn
now
to
the
appellant’s
reliance
on
the
fourth
category
-
a
purpose
beneficial
to
the
community
in
general.
The
thrust
of
the
appellant’s
argument
is
that,
as
with
the
newspaper
contemplated
in
Native
Communications
Society,
Briarpatch
speaks
to
a
specific,
identifiable
group
which
deserves
or
needs
special
recognition
or
protection,
-
the
poor.
By
addressing
the
needs
and
concerns
of
that
disadvantaged
group,
Briarpatch
is
providing
a
service
that
is
of
benefit
to
the
community
and,
therefore,
charitable.
The
immediate
problem
with
this
argument
is
that
the
topics
canvassed
in
Briarpatch
are
not
restricted
to
matters
that
are
of
direct
relevance
to
Canada’s
poor.
In
short,
the
appellant’s
publication
lacks
specificity
of
purpose.
This
fact
alone
is
a
sufficient
basis
on
which
to
distinguish
the
present
case
from
Native
Communications
Society.
Admittedly,
in
that
case
a
publication
was
involved,
but
that
is
the
only
common
ground
shared
with
the
case
under
consideration.
In
closing,
it
is
instructive
to
reproduce
the
observations
of
Stone
J.A.
in
Native
Communications
Society
with
respect
to
the
native
publication
that
was
anticipated
in
that
case:
It
is
apparent
that
the
newspaper
is
used
more
than
as
a
mere
vehicle
for
conveying
news.
An
examination
of
its
pages
shows
that
through
them
its
Indian
readers
are
made
aware
of
activities
of
a
cultural
nature
going
on
elsewhere
in
the
wider
Indian
community
and
of
attempts
being
made
to
foster
language
and
culture
as,
for
example,
through
greater
use
of
native
languages
and
the
revival
of
ancient
crafts,
music
and
story
telling.
All
of
this
may
well
instill
a
degree
of
pride
of
ancestry
in
the
readers
of
Kahtou,
deepen
an
appreciation
of
Indian
culture
and
language
and
thereby
promote
a
measure
of
cohesion
among
the
Indian
people
of
British
Columbia
that
might
otherwise
be
missing.
The
record
indicates
that
the
radio
and
television
programs
are
being
designed
along
the
same
general
lines.
Having
regard
to
the
above
passage,
and
the
special
constitutional
status
possessed
by
Canada’s
Native
peoples,
it
is
clear
that
this
is
not
a
proper
case
in
which
to
draw
an
analogy
or
to
approve
of
an
extension
to
the
reasoning
advanced
in
Native
Communications
Society.
In
closing,
I
note
that
similar
observations
were
made
recently
by
this
Court
in
Vancouver
Society
of
Immigrant
and
Visible
Minority
Women
v.
Minister
of
National
Revenue,
[1996]
2
C.T.C.
88
(F.C.A.).
For
all
these
reasons,
the
appeal
should
be
dismissed.
Appeal
dismissed.