In the world of charity and non-profits, the meaning of words like “aged” and “seniors” can be very important. The very first mentioned purpose in the Statute of Elizabeth, which is the legal foundation of the English law of charities, involves help for the “aged”. But there is no definition of that term and on many occasions over the years we have had to come to grips with settling on a specific age for document drafting purposes.
We have always found the CRA to be flexible and the Agency has adopted a reasonable approach. Some years ago they agreed, for example, that amongst the Inuit an “elder” was anybody who reached age 50, given the comparatively short life expectancy of the Inuit at that time.
CRA also agreed that a married couple might be eligible for low income housing for seniors even where one was 65 and the other was several years younger.
So we were very surprised by a recent technical interpretation which dealt with subsidized housing.
In this case, a non-profit corporation that would meet all the requirements to be a low cost housing corporation for the aged under the Act had received legal advice that it cannot exclude certain tenants from its building because of their age, on the basis of section 10 of the Québec Charter of Human Rights and Freedoms which states that:
Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
As a result, it appeared that the corporation could provide accommodation to a person 50 years of age or under.
The questions posed to the CRA were as follow:
Is there a minimal age threshold that the CRA considers necessary to meet the aged criterion in paragraph 149(1)(i) of the Act?
Can a corporation constituted exclusively for the purpose of providing low-cost housing accommodation for the aged be subject to paragraph 149(1)(i) of the Act where it accepts tenants who are not aged in order to comply with the Charter ?
Can a corporation issue tax receipts if it is constituted exclusively to provide low-cost housing to the aged but may be forced to accept as tenants individuals who are not aged?
The CRA tried to be Solomonic:
In order to be considered a housing corporation for the purpose of paragraph 149(1)(i), a corporation must exclusively provide low-cost housing accommodation for the aged. CRA would not generally question the status of a corporation renting only to individuals aged 55 and over.
However, in our view, a corporation that provides housing to people aged 50 or under is not operating exclusively for the purposes of providing low-cost housing accommodation for the aged and is not, for the purposes of paragraph 149(1)(i), constituted exclusively for that purpose and will fail to qualify for the exemption under that paragraph.
The definition of "charitable gifts" under subparagraph 110.1(1)(a)(iii) of the Act includes a gift made to a housing corporation resident in Canada and described in paragraph 149(1)(i). In order to be entitled to issue tax receipts, a housing corporation must meet all the requirements described under paragraph 149(1)(i).
Having given a negative ruling, the Agency then tried to pass the buck to Finance:
Please note that the role of the CRA is to administer and enforce the Act as passed by Parliament. Amendments to the Act are the responsibility of the Department of Finance. If you view that a corporation that satisfies the requirements under paragraph 149(1)(i) of the Act could violate the Charter, you may write to the officials in the Tax Policy Branch of the Department of Finance.
This ruling is one which readers might want to bear in mind if and when the issue of what is meant by “aged” arises. We might note en passant that while a lot of people believe that in real terms “old age” occurs later and later in North American life, the issues in the charity field almost always involve pushing the age limit lower than most people agree is generally appropriate.