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Year Description
Foundation of The King’s School, Canterbury 597

The school claims it was originally established by Saint Augustine in this year. If so, it is the oldest still operating English charity. http://www.kings-school.co.uk

Original Magna Carta of King John 1215

Art. 27 confirmed the church’s jurisdiction over testamentary dispositions of personal property, and thus over bequests to charity (but not over devises—dispositions of land or other real property—which under feudalism remained under the jurisdiction of the lords’ courts, and ultimately the king’s courts). Art. 46 granted to lords who had founded or whose ancestors had founded an abbey or monastery, interim custody over its property and revenue while the appointment of a new abbot or head was awaiting royal and papal confirmation.

The Magna Carta included two provisions relevant to charity law history, having to do with the jurisdiction of churches and custody over abbey or monastery assets pending confirmation of appointment of someone to head the institution

Reissued Magna Carta 1217

Reissued during the infancy of King Henry 3. Art. 36 specifically prohibited a particular form of mortmain: a lord giving land to the church in such a way that the church becomes his feudal superior lord in respect of the land.

Final version of Magna Carta 1225

Arts. 33 and 36 repeated art. 46 of the 1215 version and art. 36 of the 1217 version. This Magna Carta, which was issued when King Henry 3 became an adult, found its way into the English statute book.

Repeated provisions of earlier versions related to charity law.

Statute De Viris Religiosis (later renamed the Mortmain Act, 1279). 1279

This statute generally prohibited all sales and gifts of land in mortmain, i.e. to religious organizations, unless the superior lords—including the king as lord paramount—of the person selling or giving had all consented beforehand.

Restrictions on mortmain sales and gifts.

Royal charter for London Bridge 1282

This charter re-organized the religious and civic groups responsible for maintaining London Bridge—in effect establishing the first of many bridge charitable trusts. Bridges, Law and Power in Medieval England, 700-1400 by Alan Cooper (Boydell Press, 2006), p. 119.

Structures civic and religious groups responsible for London Bridge.

Second Statute of Westminster (13 Edward 1). 1285

An omnibus legal reform statute. One article (c. 32) abolished a legal trick to get around the mortmain laws through the courts: religious organizations could no longer get land by suing the owner who would, by agreement, default in defending the suit, thereby surrendering the land. Another article (c. 33) prevented owners from setting up crosses on their lands so as to make them subject to the Templars and Hospitalers. Another article (c. 41) forbade monasteries, religious hospitals for the poor and churches which had received gifts of land from the King or other lords, from selling such donated land; both the land and the purchaser’s money would be forfeited to the original donors, the King or other lords or their successors.

Omnibus reform of legislation dealing with various aspects of charity.

Statute Quia Emptores (18 Edward 1) 1290

This key statute abolished subinfeudation; that is, when a property owner wished to sell land, rather than doing so by making the purchaser his feudal vassal for the land in question, the purchaser would take the seller’s place in the feudal hierarchy and become the feudal vassal of the seller’s lord. This was the beginning of the abolition of feudalism. It was also enacted that this new ability to sell and buy land should not be used to get around the mortmain laws.

New non-feudal way to sell and buy land.

Mortmain licence to the goldsmiths of London (15 Edward 3). 1341

An interesting example of a mortmain licence. The guild of goldsmiths of London needed to set up a charitable home to take care of their brethren rendered disabled from breathing the fumes of hot mercury used in melting gold. They had to obtain this licence from the King in order to receive donated lands the rents of which would support this charity. Rymer’s Foedera, 1st ed., vol. 2, part 2, p. 1157; 2nd ed., vol. V, p. 246; 3rd ed., vol. 2, part 4, p. 98.

Facilitated what was likely the first charitable home for goldsmiths disabled as a result of their work

The Vision of Piers Plowman, attributed to William Langland. 1376

Circa 1376-7

This religious allegorical poem contained wording about charitable purposes that apparently inspired those who drafted the list of example charitable purposes in the preamble of the Charitable Uses Act, 1601. The Vision of Piers Plowman, by A. V. C. Schmidt (1978), pp. 77-79.

Believed to have informed the preamble of the Charitable Uses Act, 1601
Statutes on mortmain (later renamed the Mortmain Act, 1391) 1391

U.K. 15 Richard 2, c. 5, 6. This statute tightened up the mortmain laws by preventing landowners next door to churches from allowing their land to be used as churchyards or graveyards; by attempting to forbid the “use” as a means of putting lands into mortmain; and by extending the mortmain restrictions to all (non-religious) corporate entities, such as guilds and fraternities, and cities and towns. Another provision (c. 6) ensured that when parish church offices were purchased, those who received the money (the “appropriators”) had to allocate part of it to maintain the poor and to pay the vicar in the parish.

Tightening up of the rules related to mortmain.

1414—Visitation of Hospitals Act, 1414 1414

U.K. 2 Henry 5, c. 1.

Bishops to inspect charities for the poor.

Statute of Uses 1535

U.K. 27 H. 8, c. 10. This Act was another attempt to stop the “use” as a way of giving land for the benefit of someone other than the legal recipient, which was a way to evade feudal taxes; and in particular, to stop religious corporations from being given, via the use, the benefit of lands despite the mortmain laws. The Act “executed the use”, that is, required legal title to pass directly to the beneficiary of the use, who would thereby become the legal titleholder, pay feudal taxes and be caught by the mortmain laws. This restriction lasted about 21 years; until, in Jane Tyrrel’s case (1557), Dyer 155a, the courts ruled that the Statute of Uses did not apply to a “use upon a use”, which came to be known as a “trust”. The 1535 Statute of Uses did not, in general, apply to charitable uses since those are purposes that do not have specific persons benefiting from a use; so this Act should not be confused with the subsequent 1601 Statute of Charitable Uses.

Henry 8’s attempt to abolish the “use”, predecessor of the trust.

Suppression of Religious Houses Act, 1535 1535

U.K. 27 Henry 8, c. 28. Also called the Dissolution of Lesser Monasteries Act, this was the first of several statutes passed for the purpose. Over the next few years, Henry 8’s government abolished the entire monastic system in England (over 400 institutions), executed its members who did not co-operate, pensioned off those who did, and seized and sold all of its property holdings, which were roughly ¼ of England’s real estate. About 800 “hospitals”—charitable institutions caring for the poor, aged or disabled, apparently the entire social safety net of the country—were included in the dissolution, resulting in a major increase of England’s population of destitute beggars. It was not until Elizabeth 1’s revision of the “Poor Laws” decades later that a secular, municipal-based welfare system began to solve the problem. The charity reform statutes of 1563, 1575, 1597 and 1601 listed below were components which aimed to rebuild and foster a (mainly secular) charitable sector that would relieve the local taxpayers burdened with the Poor Laws.

Start of Henry 8’s dissolution of the monasteries.

Poor Relief Act 1563

U.K. 5 Eliz. 1, c. 3, s. 9.

Bishops to inspect charities for highways and bridges.

Poor Relief Act 1575

U.K. 18 Eliz. 1, c. 3, s. 9.

Ordinary landowners may devise land to support poorhouses.

Licence for charitable collections to repair a port. 1585

An interesting example of charitable collection licence (or “King’s Brief“). Tudor Royal Proclamations by Hughes and Larkin, vol. II, No. 675.

One of the first, if not the first instance of licensing of fundraising.

Hospitals for the Poor Act, 1597 1597

U.K. 39 Eliz. 1, c. 5. Before this Act, royal consent was required to set up a hospital (in the sense of a refuge to take care of the poor), both to incorporate it and to obtain a mortmain licence so that it could be given lands to support it.

Ordinary landowners may found and incorporate poorhouses without royal charter or mortmain license.

Charitable Uses Act, 1597 1597

Charitable Uses Act, 1597—Predecessor of the 1601 version.[1]

[1]     U.K. 39 Eliz. 1, c. 6.

Charitable Uses Act, 1601 1601
U.K. 43 Eliz. 1, c. 4, the most important law in charity history, also known as the “Statute of Charitable Uses” and often called simply the “Statute of Elizabeth”. It set up a system of ad hoc local courts of charity commissioners to protect and enforce (mainly secular) charities. This system was defunct by 1800, having been superseded by other Chancery processes, but the preamble’s list of example charitable purposes was the origin of centuries of charity case law to this day.

Reform of the legal system, regulating and protecting charities, with a preamble listing typical (and mainly secular) charitable purposes of this era.

 

Falkland v. Bertie 1696

2 Vern. 333 at 342; 23 E.R. 814 at 818. The Court of Chancery had long had jurisdiction over (amongst many other things) child welfare, mentally disabled persons and charities; but this is the first case in which the court described these areas as deriving from the Crown’s traditional role as parens patriae (parent of the country) for the protection of such people as cannot represent themselves in court to protect their own interests.

First assertion of the Chancery’s parens patriae jurisdiction.

Morice v. Durham (Bishop of) 1805
9 Ves. Jun. 399, 32 E.R. 656, Rolls; 10 Ves. Jun. 522, 32 E.R. 947, Lord Chancellor.

The 1601 preamble was held the primary source for determining charitable purposes.

British North America Act, 1867 (subsequently renamed the Constitution Act, 1867) 1867
U.K. 30 & 31 Victoria, c. 3: “91. . . . the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, . . . 3. The raising of Money by any Mode or System of Taxation.”; “92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, . . . 2.  Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. . . . 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals. . . . 13. Property and Civil Rights in the Province. . . . 16. Generally all Matters of a merely local or private Nature in the Province.”

In Canada, gave primary legislative jurisdiction over charities to the provinces; but legislative jurisdiction over the tax systems which define the fiscal privileges of charities was shared between the provinces and the federal level.

Abbott v. Fraser (P.C.) 1874
L.R. 6 P.C. 96

Legacy to found a public library was valid under Quebec law.

Mortmain and Charitable Uses Act, 1888 1888

U.K. 51 & 52 Victoria, c. 42. This Act repealed (in the U.K. only) all previous charity and mortmain laws, including the charitable uses statutes of 1601 and 1735, and re-enacted their provisions in modern form, including the 1601 preamble.

Modernization of the mortmain and charities laws (in England).

Commissioners for Special Purposes of the Income Tax v. Pemsel (H.L.) 1891

[1891] A.C. 531. The case was actually about a Scottish missionary organization and whether it enjoyed exemption from income tax as a charity. It did, but the case is more important because one of the judges, Lord Macnaghten, suggested the four heads in obiter as a convenient classification of charitable purposes. The fourth head was only a category of already recognized charitable purposes. Subsequent courts explained that it did not mean anything at all that is beneficial to the community, but only certain purposes that courts have recognized as charitably beneficial to the community, yet not in the first three heads.

Charitable purposes classified into the “four heads of charity”: relief of poverty, advancement of education, advancement of religion, and the catch-all, all other (charitable) purposes beneficial to the community.

The Income War Tax Act, 1917 1917

S.C. 1917, c. 28, s. 5(d)

First Canadian Income Tax Act—with the first exemption of “charitable institutions” from having to pay income tax.

Bowman v. Secular Society (H.L.) 1917
[1917] A.C. 406

First statement of rule that political purposes (i.e. to change the law) cannot be charitable.

Re Orr; Cameron v. Church of Christ Scientist (S.C.C.) 1918

57 S.C.R. 298

Christian Science was found to be a religion for charity law purposes. Some legacies in trust to support it were valid; but others were expressed too vaguely.64

I.R.C. v. Falkirk Temperance Café Trust (Scotland) 1926
 1926 S.C. 261

A “dry” pub business to promote temperance was a valid charity.65 I.R.C. v. Glasgow Musical Festival Association (Scotland)—a music festival with paying participants and audiences to promote music to the public was a valid charity.

An Act to amend the Income War Tax Act 1929

S.C. 1930, c. 24, s. 3 [s. 5(1)(j)], effective with the 1929 tax year (s. 7)

Creation of the Canadian income tax deduction for charitable donations.

Keren Kayemeth Le Jisroel Ltd. v. I.R.C. (C.A., H.L.) 1932

[1931] 2 K.B. 465; [1932] A.C. 650

Legacy in trust promote Jewish immigration to (what was then) Palestine was not a valid charity.

National Anti-Vivisection Society v. I.R.C. (H.L.) 1947

[1948] A.C. 31

Political purposes (i.e. to change the law) cannot be charitable; purposes that would otherwise be charitable in principle but in effect have results calamitous for the community cannot be charitable.

Gilmour v. Coats (H.L.) 1949

[1949] A.C. 426

A priory of cloistered nuns did not provide a public benefit in the sense meant by charity law and was not a charity.

Les Dames religieuses de Notre Dame de Charité du Bon Pasteur v. The King and Assessors of Sunny Brae (S.C.C.) 1952

[1952] 2 S.C.R. 76

Property used to run a laundry business was not being used by the nuns for charitable religious purposes, and so liable to property tax.

In re Cox; Baker v. National Trust Co. (P.C) 1955
[1955] A.C. 627. This was probably the last Canadian charity case where an appeal was decided by the Privy Council. The Supreme Court of Canada took over as the final court of appeal for Canada.

Trust to aid employees and ex-employees of an insurance company was a valid charitable trust.

In re Shaw, decd. Public Trustee v. Day (Ch. D.) 1957

[1957] 1 W.L.R. 729

George Bernard Shaw’s “alphabet” trusts (to research whether a simplified alphabet would be more efficient) were not charitable.

Worldwide Evangelization Crusade (Canada) v. Beamsville & Annable (S.C.C.) 1959

[1960] S.C.R. 49

A legacy in trust to benefit a charity at a future time which may not happen within the perpetuity period can be saved by varying the gift cy-près.

Re Brier; Jewish Home for the Aged of British Columbia v. Toronto General Trusts Corporation (S.C.C.) 1961

[1961] S.C.R. 465

A legacy in trust to benefit a charity at a future time which may not happen within the perpetuity period can be saved by varying the gift cy-près.

Touchet v. Blais (S.C.C.) 1963

[1963] S.C.R. 358

Legacy to a bishop to carry out his works was a valid charitable gift for advancement of religion.

Income Tax Act registration regime 1964

Federal Income Tax Act registration regime introduced for charities.

In re Pinion, decd. Westminster Bank Ltd. v. Pinion (C.A.) 1965

[1965] Ch. 85

A legacy in trust to establish a museum to show the testator’s art collection was not charitable because the collection was, in the opinion of experts, “a worthless pile of junk” and unable to benefit the public.

Jewish National Fund v. Royal Trust Co. (S.C.C.) 1965

[1965] S.C.R. 784

Legacy in trust to support land purchases in Palestine for the State of Israel was governed by the law of the testator’s domicile (B.C.), under which that was not a valid charitable purpose.

Guaranty Trust Co. of Canada v. M.N.R. (S.C.C.) 1966

[1967] S.C.R. 133

Legacy in trust to financially assist medical students was a valid charitable purpose exempt from estate tax.

Scottish Burial Reform and Cremation Society Ltd. v. Glasgow (H.L.) 1967

[1967] S.C.R. 133

Cremation services could be charitable.

Incorporated Council of Law Reporting for England & Wales v. Attorney-General (C.A.) 1971

[1972] 1 Ch. 73

Publishing law reports was charitable both as educational to the legal profession and promoting the law to the public.

Stouffville v. Mennonite Home Association of York County (S.C.C.) 1972

[1973] S.C.R. 189

Non-profit nursing home was a valid charitable purpose even though it administered no means test.

Re Bethel; Jones v. T. Eaton Co. (S.C.C.) 1973

[1973] S.C.R. 635

Legacy in trust to help needy or deserving members of a club of Eaton’s employees and ex-employees was a valid charitable trust.

McGovern v. Attorney-General (Ch. D.) 1981

[1982] 1 Ch. 321

Putting pressure on governments to stop torture and the death penalty was seeking to change the law and therefore a political purpose, not charitable.

An Act to amend the Charities Accounting Act and An Act to repeal the Mortmain and Charitable Uses Act (Ontario) 1982
S.O. 1982, c. 11, 12. These two Acts implemented a provincial political decision to bring Ontario charity law into line with most of the rest of the common-law world and abolish the law of mortmain in Ontario. However, several provisions, including the Pemsel-based definition of charitable purposes, were transferred to the Charities Accounting Act. It remains in force in today’s version of that Act, R.S.O. 1990, c. C.10, s. 7.

The mortmain laws in Ontario finally were removed.

Re Laidlaw Foundation (Ontario) 1984
48 O.R. (2d) 549

Health-promoting sports could be a charitable purpose (in Ontario only, by virtue of peculiar Ontario legislation).

Native Communications Society of British Columbia v. M.N.R. (F.C.A.) 1986
[1986] 3 F.C. 471

Publishing a newspaper for a First Nation was charitable because of the special legal status that aboriginal peoples have in Canada.

Alberta Institute on Mental Retardation v. The Queen (F.C.A.) 1987

[1987] 3 F.C. 286. Note that the court also said in obiter that if this arrangement were a business it would be a “related business” allowed under the Income Tax Act, since the funds raised were to be used for charitable purposes; but this interpretation, the “destination of funds test”, has since been rejected by other courts.

An arrangement to raise money by collecting clothing and other goods donated by the public and selling these to a (for private profit) thrift store, was simply a means to convert donated goods into money and not a business; and the organization was theref

Positive Action Against Pornography v. M.N.R. (F.C.A.) 1988

[1988] 2 F.C. 340

An organization seeking to strengthen anti-obscenity laws was political, not charitable.

Toronto Volgograd Committee v. M.N.R. (F.C.A.) 1988
[1988] 3 F.C. 251

An organization seeking to have exchanges between a Canadian and a Russian city to promote peace was political, not charitable.

Everywoman’s Health Centre Society (1988) v. The Queen (F.C.A.) 1991

[1992] 2 F.C. 52. The court also said that the provision of abortions could not be contrary to public policy because the Supreme Court of Canada had struck down the anti-abortion laws as unconstitutional, and there was therefore an absence of public policy on the issue.

Provision of abortions was charitable as a health service, even though controversial.

Corporation Notre-Dame de Bon-Secours c. Communauté urbaine de Québec (S.C.C.) 1994

[1994] 3 S.C.R. 3

A seniors’ housing facility qualified for property tax exemption.

Briarpatch Inc. v. The Queen (F.C.A.) 1996

[1996] 2 C.T.C. 94

Publishing a newspaper targeting the poor in a community was not charitable.

Vancouver Regional FreeNet Association v. M.N.R. (F.C.A.) 1996

[1996] 3 F.C.R. 880

A community internet service was charitable, as a means of communication analogous to highways recognized as charitable in the statute of 1601.

Human Life International in Canada Inc. v. M.N.R. (F.C.A.) 1998

[1998] 3 F.C. 202

An organization educating the public on health was conducting an anti-abortion campaign in reality, which was political and not charitable.

Action des femmes handicapées (Montréal) v. M.N.R. (F.C.A.) 1998

1998 CanLII 8059

Organization campaigning for others to help the disabled was not charitable because any benefits to the disabled public would be too indirect, provided by those others, not the organization.

Alliance for Life v. M.N.R. (F.C.A.) 1999

Advocating strongly held convictions on important social and moral issues in a one-sided manner to the virtual exclusion of any equally strong opposing convictions, was not advancement of education under charity law.

Vancouver Society of Immigrant and Visible Minority Women v. M.N.R. (S.C.C.) 1999

[1999] 1 S.C.R. 10. Amongst many other things, the court concluded that programs to find employment for immigrant and minority women are not charitable; but non-traditional forms of education can be.

Major review of charity case law by the Supreme Court of Canada.

Canadian Magen David Adom for Israel v. M.N.R. (F.C.A.) 2002

2002 FCA 323

Foreign aid provided to place disallowed by the Canadian government’s foreign policy, was not contrary to public policy within the meaning of the law (but the organization was still not charitable since it was a mere financial conduit).

Action by Christians for the Abolition of Torture (ACAT) v. The Queen (F.C.A.) 2002

2002 FCA 499

Putting pressure on governments to stop torture and the death penalty was seeking to change the law and therefore a political purpose, not charitable.

Canadian Committee for the Tel Aviv Foundation v. The Queen (F.C.A.) 2002

2002 FCA 72

A foreign aid charity may not be a mere financial conduit to a foreign organization; it must exercise a sufficient degree of control over use of its funds by its foreign agents.

Reference re Earth Future Lottery (P.E.I.C.A.; S.C.C.) 2003

215 D.L.R. (4th) 656; [2003] 1 S.C.R. 123

A province may not authorize an (ostensibly charitable) organization to run an on-line lottery involving participants outside the province.

Slobodrian v. M.N.R. (F.C.A.) 2003

A series of many decisions were rendered in this case, the key being 2003 FCA 350.

Services are not property in law, and therefore could not by the subject of a gift to a charity so as to allow an income tax credit to be claimed.

Fuaran Foundation v. C.C.R.A. (F.C.A.) 2004

2004 FCA 181

It was not a charitable advancement of religion to provide a place of retreat where visitors may choose to do what they like.

A.Y.S.A. Amateur Youth Soccer Association v. C.R.A. (S.C.C.) 2007

[2007] 3 S.C.R. 217

A sports association was not a charitable despite its claimed health benefits.

Redeemer Foundation v. M.N.R. (S.C.C.) 2008

[2008] 2 S.C.R. 643

An income tax audit of a charity may require disclosure of unidentified donors and beneficiaries without a court order in order to match them and determine whether a system of earmarked donations was actually tuition in disguise.

Hostelling International Canada—Ontario East Region v. M.N.R. (F.C.A.) 2008

2008 FCA 396

Providing hostels for young people was not a form of advancement of eduction under charity law.

House of Holy God v. A.G. Can. (F.C.A.) 2009

2009 FCA 148

A business of producing and selling maple syrup was not a charitable advancement of religion, notwithstanding a religious motivation for doing so.

Ballard & Coleman v. The Queen (F.C.A.) 2011

2011 FCA 82

A system of donations made by parents which would result in bursaries for their children covering most of the costs of their education at a religious school, was actually a disguised form of tuition, not a proper gift, and so ineligible for the income tax.

News to You Canada v. M.N.R. (F.C.A.) 2011

2011 FCA 192

Production and dissemination of in-depth news and public affairs programs was not a charitable purpose.