CITATION: HR Canada Charitable Organization v. Minister of National Revenue, 2026 ONSC 2459

COURT FILE NO.: CV-26-00003467-0000

DATE: 20260424

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HR CANADA CHARITABLE ORGANIZATION, Applicant

AND:

MINISTER OF NATIONAL REVENUE, Respondent

BEFORE: Justice Papageorgiou

COUNSEL: Steven G. Frankel and Alexa Amar, for the Applicant

Linsey Rains, Pierre-Olivier Lemieux and Ahmed Ali, for the Respondent

HEARD: April 6, 2026

AMENDED ENDORSEMENT

Overview

1The Applicant HR Canada Charitable Organization (“HR Canada”) is a registered charity whose activities include the development and delivery of educational programming that addresses the issues of religious, racial, ethnic, cultural and linguistic intolerance, discrimination and prejudice, with a particular focus on antisemitism. It develops tools to assist Jewish university students to deal with rising antisemitism across Canada.

2The Minister issued a notice of intention to revoke its charitable status pursuant to s. 168(1) of the Income Tax Act (the “Act”).

3Pursuant to s. 168(2)(b) of the Act, the revocation becomes effective upon the publication of the notice of revocation in the Canada Gazette.

4HR Canada brings a motion for an interlocutory injunction enjoining the Minister of National Revenue (the "Minister") from publishing the Notice of Revocation in the Canada Gazette on the basis that 168(1) of the Act violates the Constitution Act, 1867, 30 & 31 Vict, c. 3, and in particular treads on provincial jurisdiction.

Decision

5For the reasons that follow I dismiss the motion.

Issues

• Issue 1: Is there a substantial issue to be tried?

• Issue 2: Has HR Canada demonstrated irreparable harm if the injunction is not granted?

• Issue 3: Who does the balance of convenience favour?

• Issue 4: Should this court decide the application at this time and dismiss it or alternatively decline jurisdiction?

Analysis

The test for an injunction

6Pursuant to RJR MacDonald v. Canada (Attorney General), , [1994] 1 S.C.R. 311, at p. 334, the usual test for an interlocutory injunction is as follows:

(a) Is there a serious issue to be tried?

(b) Will the party requesting the injunction suffer irreparable harm if the injunction is not granted? and

(c) Does the balance of convenience weigh in favour of granting an injunction or denying it?

7Courts have held that the test is not "a series of independent hurdles" or watertight compartments, and the three elements should not be rigidly applied: Circuit World Corp. v. Lesperance, , 1997 CarswellOnt 1840 (O.N.C.A.) at para. 8. The fundamental question is whether it is just and equitable, or in the interests of justice, to grant the relief sought in the circumstances: Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Toronto: Thomson Reuters Canada) at para 2:17.

Issue 1: Is there a substantial issue to be tried?

8It is trite that the bar is low and the moving party need only establish that the proceeding is not frivolous and vexatious.

9On October 31, 2019, the Minister granted HR Canada status as a registered charity under the Act.

10In 2024 the Minister began an audit of HR Canada.

11On July 14, 2025, the Minister wrote to HR Canada setting out detailed concerns about HR Canada’s practices and gave HR Canada a chance to provide a response.

12On January 29, 2026, after receipt and review of HR Canada’s response, the Minister issued a notice of intention to revoke HR Canada’s charitable status on the basis of noncompliance with the Act and Regulations. It advised that the revocation would become effective upon publication of the notice of intention to revoke in the Gazette within 30 days unless the Federal Court of Appeal issued an order extending the period of time during which the Minister cannot publish the notice.

13However, the Minister ultimately agreed to delay publication pending the result of this motion.

14Section 168(1) provides as follows:

168 (1) The Minister may, by registered mail, give notice to a person described in any of paragraphs (a) to (c) of the definition qualified donee in subsection 149.1(1) that the Minister proposes to revoke its registration if the person

(a) applies to the Minister in writing for revocation of its registration;

(b) ceases to comply with the requirements of this Act for its registration;

(c) in the case of a registered charity, registered Canadian amateur athletic association or registered journalism organization, fails to file an information return as and when required under this Act or a regulation;

(d) issues a receipt for a gift otherwise than in accordance with this Act and the regulations or that contains false information;

(e) fails to comply with or contravenes any of sections 230 to 231.5. (These provisions set out the requirement to keep books and records); or

(f) in the case of a registered charity, registered Canadian amateur athletic association or registered journalism organization, accepts a gift the granting of which was expressly or implicitly conditional on the charity, association or organization making a gift to another person, club, society, association or organization other than a qualified donee.

15The Minister based the notice of intention to revoke upon s. 168(1)(b) and (e) and also referenced s. 149.1(2).

16Among the particular findings made by the Minister are as follows:

HR Canada had purposely acted as a conduit for HonestReporting Canada (“HRC”), which is a non-qualified donee. HR Canada accepted donations for and issued charitable receipts on behalf of HRC. It found that during the audit review HRC Canada contradicted itself by indicating that each entity had independent governance and separate employees, while the documentation submitted showed that HRC Canada’s staff matched the staff listing on HRC’s website, both in employee name and title.

HR Canada also advised that it did not have a website, but the audit found that it had an online donation page that was linked to HRC’s website. HRC’s donation page displayed the name “HR Canada Charitable Organization” along with HR Canada’s charitable registration number. Then, after the audit commenced, HR Canada created a website under its own URL that displayed the same donation information. All associated contacts were listed with HRC email addresses, mailing address, and telephone number. All program information listed on the donation page referenced HRC.

HR Canada sent newsletters whose focus was a fundraising campaign for HRC, specifically stating “Support HonestReporting Canada”. There was no reference to HRC Canada.

The newsletter also stated that HR Canada had been countering antisemitism since 2003. However, HR Canada was only created in 2019; it was HRC who has been in operation since 2003.

HR Canada said it created podcasts. However, the podcasts ask listeners to donate to HRC’s website. The website says that the donations are tax deductible and gave HRC Canada’s charitable registration number.

As well, HR Canada’s official donation receipts displayed HRC’s address.

The audit concluded that HR Canada did not carry on any charitable activities on its own but purposely acted as a conduit for HRC by accepting donations for and issuing donation receipts on behalf of HRC.

Further, HR Canada appeared to support activities through HRC which did not further the advancement of education but rather appeared to monitor Canada’s mainstream media outlets and report on content that it categorizes as discriminatory. It was specifically advised prior to being registered as a charity that monitoring journalism would not be considered a charitable activity.

As well, HR Canada was unable to demonstrate that it carried on any activities in furtherance of its own charitable purposes but gifted them to HRC who was a non-qualified donee who used funds for their own activities.

In general, the audit concluded that HR Canada did not provide any documentation or information to demonstrate that it conducts any of its own charitable activities in furtherance of its stated purposes. Instead, the audit revealed that HR Canada was using its registered status to issue official donation receipts on behalf of HRC, which is a non-qualified donee. All information and materials submitted by the charity pertain solely to activities carried out by HRC. HR Canada was effectively operating as the fundraising arm for HRC by issuing receipts for directed donations. This arrangement constitutes a conduit, which is not permitted for registered charities.

17As noted, pursuant to s. 168(2), the notice of revocation is not effective until it has been published in the Gazette. Section 168(2)(b) gives a charity a right to bring an application to extend the period of the publication in the Gazette.

If the Minister gives notice under subsection (1) to a registered charity, to a registered Canadian amateur athletic association or to a registered journalism organization

(a) if it has applied to the Minister in writing for the revocation of its registration, the Minister shall, forthwith after the mailing of the notice, publish a copy of the notice in the Canada Gazette, and on that publication of a copy of the notice, the registration is revoked; and

(b) in any other case, the Minister may, after the expiration of 30 days from the day of mailing of the notice, or after the expiration of such extended period from the day of mailing of the notice as the Federal Court of Appeal or a judge of that Court, on application made at any time before the determination of any appeal pursuant to subsection 172(3) from the giving of the notice, may fix or allow, publish a copy of the notice in the Canada Gazette, and on that publication of a copy of the notice, the registration is revoked.

18As well, there are appeal rights directly to the Federal Court of Appeal pursuant to s. 172(3) of the Act which have not yet been triggered but HR Canada indicated it intends to appeal once the appeal rights are triggered.

19On February 6, 2026 HR Canada sought a reconsideration of the Minister’s position without reference to any constitutional issue. On February 10, 2026 this was rejected.

20Then on February 19, 2026, it filed an application for a stay of publication before the Federal Court of Appeal pursuant to s. 168(2)(b) of the Act. On the same day, it filed this application to challenge the constitutionality of s. 168(1) of the Act before this court.

21HR Canada has not proceeded with its application for a stay before the Federal Court of Appeal at this time.

22HR Canada argues that s. 168(1) is constitutionally invalid and/or constitutionally inapplicable based upon the doctrine of interjurisdictional immunity. It references section 92(7) of the Constitution Act, which states that the provincial legislature may “exclusively make law in relation to matters” relating to “the establishment, maintenance and management of ….charities and eleemosynary institutions in and for the province.”

23The Minister says that the provisions of the Act relating to the taxation of charities falls under federal jurisdiction under s. 91(7) of the Constitution Act, 1867 which gives the federal government the power to regulate the taxation of charities.

Constitutional Validity

24As noted, section 168(1) permits the Minister to revoke a charity’s registration for noncompliance with provisions of the Act as well as other matters specifically listed therein.

25The Minister points out that the specific bases upon which registration can be revoked are set out in ss.149.1(2), (3), (4), (4.1). HR Canada did not reference any other provisions in response to the Minister’s assertion in this regard.

26These apply to charitable organizations, public foundations and private foundations.

27In summary, these provisions provide that the Minister can revoke a registration where a charity:

Applicable to Charitable Organizations, Public Foundations and Private Foundations

• carries on a business that is not a related business of that charity

• expends funds on activities that are not charitable

• makes disbursements other than disbursements in the course of its charitable activities

• enters into transactions that may reasonably be considered to have a purpose of avoiding or unduly delaying the expenditure of amounts on charitable activities

• enters into a transaction with another registered charity to assist the other registered charity in avoiding or unduly delaying the expenditure of amounts on charitable activities

• makes a false statement as defined in ss 163.2(1) for the purpose of obtaining or maintaining its registration

• receives a gift of property from another registered charity with which it does not deal at arm’s length and it expends before the end of the taxation year, in addition to its disbursement quota for each of the taxation years, an amount that is less than the fair market value of that property, on charitable activities carried on by it or by way of gifts that are qualifying disbursements to qualified donees or grantee organizations, with which it deals at arm’s length

• has an ineligible person as a director, trustee or officer

• accepts a gift from a foreign state defined in section 2 of the State Immunity Act, RSC, 1985, c. S-18 listed in ss 6.1(2) of that Act

• accepts a gift the granting of which was expressly or implicitly conditional on the charity making a gift to another person, club, society, association or organization other than a qualified donee

• issues a receipt for a gift otherwise than in accordance with the Act and the regulations or that contains false information

• fails to comply with or contravenes ss 230 to 231.5. These provisions require charities to keep records and books of account as well as a duplicate of each receipt containing prescribed information for a donation received by it. As well, they prohibit the interference with an official doing anything the official is authorized to do under the Act

Applies to Public Foundations and Private Foundations Only

• acquires control of a corporation

• incurs debts other than debts for current operating expenses or in connection with the purchase and sale of investments and debts incurred in the course of administering charitable activities

28The Minister argues that the above requirements for registration are in place to ensure the fiscal privileges of charitable registration are not extended to organizations that would not themselves qualify for registration under the Act. A charity that fails to meet these obligations, such as by acting as a conduit for a non-qualified donee, failing to exercise direction and control over its activities, and failing to keep adequate books and records, undermines the integrity of the Act's charitable registration scheme.

29As set out in International Charity Association Network v. Canada, 2008 TCC 3:

76While the respondent is not a regulator of charities per se, the Act charges the CRA with the responsibility of protecting the public interest by ensuring the compliance of registered charitable organizations with the Act.

77Also, one cannot ignore that registered charitable status confers a special tax treatment to the charity. In ensuring compliance of registered charities with the Act, the CRA is acting in the interests of the public—by protecting a degree of public confidence in the charitable sector as well as by protecting potential taxpayer donors.

30See also Fortius Foundation v. Minister of National Revenue, 2022 FCA 176, at para 39 where the Federal Court of Appeal held that the enforcement of obligations under the Act protects the public confidence in registered charities as well as potential donors.

31See also Muslim Association of Canada v Canada (Attorney General), 2024 ONCA 541 at para 5 where a registered charity brought an application challenging an audit on the basis that the process violated his Charter rights. The Court of Appeal stated that the Canada Revenue Agency’s (“CRA’s”) mandate includes ensuring that registered charities meet statutory requirements for registration and are not abused.

32Justice Patrick J. Monahan, (as he then was), whose work is referenced in scholarly work cited by HR Canada, also notes that the rationale for the CRA’s involvement in charities has always been to protect the integrity of the tax base by preventing fraud and abuse of charitable status under the Act: Patrick J. Monahan & Elie Rothe, Federal Regulation of Charities: A Critical Assessment of Recent Proposals for Legislative and Regulatory Reform (Toronto: York University, 2000) at 8¹

33Notably, the Federal Court of Appeal has already considered the issue of whether s. 168(1) is constitutionally invalid, in an appeal pursuant to s. 172(3).

34In International Pentecostal Ministry Fellowship of Toronto v. Canada (National Revenue) 2010 FCA 51, the Federal Court of Appeal held:

7The authority to make laws for the regulation of charities is held exclusively by the provinces under subsection 92(7) of the Constitution Act, 1867. Under subsection 91(3) of the Constitution Act, 1867, the Parliament of Canada has the authority to make laws for “the raising of Money by any Mode or System of Taxation.” Therefore, the resolution of this case turns on whether the registration and deregistration of charities under the ITA relates to the regulation of charities under subsection 92(7) or to taxation under subsection 91(3).

8We have not been persuaded that there is any merit to the Appellant’s argument that the provisions of the ITA dealing with the registration and deregistration of charities are an unconstitutional infringement on provincial legislative authority. In our view, these provisions relate, in their pith and substance, to federal taxation, and accordingly they are intra vires the Parliament of Canada under subsection 91(3) of the Constitution Act, 1867. Both the advantages of registration and the drawbacks of revocation relate solely to the tax treatment of charities and their donors. They do not impermissibly affect the affairs of charities in any other way, nor do they impede the provinces from otherwise regulating charities.

35HR Canada argues that this case is of limited assistance because the Federal Court of Appeal did not do the analysis the Supreme Court used in the recent decision Reference re Impact Assessment Act, 2023 SCC 23. In that case, the Supreme Court indicated that division of power analysis involves two steps, characterization and classification: para 60.

36At the characterization stage the court considers the purpose and effect of the challenged law to identify its pith and substance. To determine the purpose the court considers intrinsic evidence (the text, its preamble and purpose, its title and structure), and extrinsic evidence that sets out the context of the law like Hansard debates, minutes of parliamentary committees and government publications: para 62.

37When a court considers the effect, it looks at legal effects that flow from the statute as well as the practical effects that flow from the application of the statute: para 63. As submitted by HR Canada, division of powers analysis will frequently if not invariably require consideration of lay and expert evidence: Reference re Securities Act, 2011 SCC 66 at para 104.

38After it has done this analysis, the court characterizes the pith and substance which must be done as precisely as possible with reference to the dominant characteristic of the law: Reference re Impact Assessment at para 64.

39Only after this analysis should a court proceed to the classification stage which is the consideration of the specific head of power under the Constitution Act, 1867 that the law falls under: Reference re Impact Assessment at para 65. In that regard, a law is classified based on its main thrust or dominant characteristic.

40Although HR Canada criticized the Federal Court of Appeal and the Minister for failing to apply the framework in Reference re Impact Assessment, neither did HR Canada before me. HR provided no evidence relating to the purpose or effect of the particular legislative provisions pursuant to which the Minister can revoke a charitable registration.

41Indeed, there is not a single reference to the Constitutional issues in HR Canada’s evidence on this motion; HR Canada’s evidence filed before me was limited to its assertion of irreparable harm.

42It is unclear what HR Canada is referring to in its factum when it says, “importantly the Minister’s concerns relate to Canada’s management.” The Minister’s concerns primarily related to HR Canada allegedly acting as a conduit for a non-registered charity, providing income tax receipts on behalf of a non-registered charity, or acting as the fundraising arm for this nonregistered charity. There was no argument or analysis before me as to how the concerns raised by the Minister relate to management as opposed to the integrity of the tax base.

43As set out in Reference re Impact Assessment at para 104, it is not for the court to assess the practical consequences of legislation challenged as ultra vires “in the absence of relevant evidence.” In my view, this principle applies as well to a party seeking to establish a serious issue to be tried on a Constitutional issue. There must be at least some limited evidence in support.

44HR Canada did not even do a facial analysis of the relevant provisions.

45HR Canada did not reference any of the criteria set out in s. 149.1 which set out the operative reasons why a registration can be revoked. It did not address the preamble of the Act, the title or structure and link them to the argument it is making about these provisions. It did not connect any of the provisions of the Act to its theory that these provisions or anything done pursuant to them, result in the Federal government’s control over the management of charities as opposed to being related to the integrity of the tax base in order to prevent fraud and abuse of charitable status under the Act. HR Canada merely appended s. 149.1 as a schedule to its factum without referencing it once.

46While RJR-MacDonald holds that a “prolonged examination of the merits is generally neither necessary nor desirable”, in circumstances where there is direct authority at the Federal Court of Appeal contrary to HR Canada’s position, and it criticizes that decision because it says the Court did not do the correct analysis, it should have provided at least some minimal evidence and argument to address the factors in Reference re Impact Assessment and how application of such criteria could plausibly lead to a different result. HR Canada also should at least have made minimal submissions on what the requirements imposed by the Federal government are and how these result in control over the management of charities.

47How can a court conduct even a limited review on the merits without any evidence or argument about the specific provisions at issue?

48Even the cases cited by HR Canada in support of its argument that the court should not engage in any significant review of the merits show that there was evidence before the court in respect of the merits and a limited review by the court: 2859824 Ontario Limited v. Gen Digitial Inc., 2025 ONSC 6360 at paras 31 to 32; The Jewish Community Council v the Attorney General, 2024 FC 1163 at paras 66 to 88.

49The Minister did not file any evidence on the Constitutional issues either, but the burden was on HR Canada. The Minister did not have to file evidence to dispute non-existent evidence from HR Canada on the Constitutional issue.

50Rather than provide such evidence and analysis, HR Canada references the general fact that the Act has provisions pursuant to which charitable status can be revoked without even reviewing them, one lower court decision in its favour which provides no analysis, and also cites minimal scholarly work which similarly provides no analysis of the provisions of the Act.

51HR Canada references Coram Deo Foundation v. Canada (Minister of National Revenue), 2026 BCSC 123, where a court in British Columbia granted an interim injunction restraining the Minister from revoking the charitable registration in a similar case where an Applicant charity argued that s. 168(1) violates the Constitution Act, 1867.

52The Minister points out that this interim injunction was only granted for 30 days to permit the Applicant time to file its petition on the Constitutional issue. Additionally, the court in Coram Deo provided no analysis of the Constitutional issue beyond its conclusion that the court considered there was a substantial issue to be tried. This is the entire analysis of the issue in the decision:

48The threshold for whether there is a serious issue to be tried is a low one. If I am satisfied that the application is neither frivolous nor vexatious, I should proceed to consider the remainder of the test.

49The Charity intends to argue that s. 92(7) of the Constitution Act vests the exclusive power to make laws in relation to the "establishment, maintenance, and management of ... Charities" in the provinces. They intend to submit that, although s. 91(7) of the Constitution Act confers powers on the Federal government to regulate the taxation of charities, the creation of a comprehensive regulatory framework for charities under the Act, has effectively appropriated provincial jurisdiction to manage and maintain charities.

53As well, the court in Coram Deo does not appear to have been referred to the Federal Court of Appeal’s decision in International Pentecostal Ministry Fellowship.

54As at the time of this hearing, that court in Coram Deo does not appear to have made a decision on whether it will grant an interlocutory injunction.

55HR Canada also references the scholar Adam Aptowitzer who concludes that because the Provinces have abdicated their jurisdiction over charities, the Federal government has stepped in and become the default regulator:

As the size and complexity of Canada’s taxation regime have grown, so too has the role of the tax collection bureaucracy. For the Canada Revenue Agency (CRA), this expansion has had unforeseen consequences for its administration of non-taxable entities.

The CRA now finds itself with a conflicting mandate: to protect the tax base while regulating charities that subtract from the base because of the donation tax credit. This structure arose for legal and historical reasons as the unintended result of the interplay among the Constitution, Parliament’s desire to protect the integrity of the donation tax credit system and the general lack of regulation in the sector. Over time, as the lack of sector regulation became a greater cause for concern, the CRA stepped in as the de facto regulator of charities in the public interest. [Emphasis added] Adam Aptowitzer, “Bringing the Province Back In: Creating a Federated Canadian Charities Council” (2009) C.D. Howe Institute Commentary 300

56Aptowitzer explains that at Confederation there was no income tax and so there was neither an income tax credit nor deductions for donations to charities. Thus, the main effect of s. 92(7) of the Constitution Act, 1867 was to give the Provinces the role of protecting charitable property, determining what qualified as a charitable and regulating to the extent necessary.

57He notes that the Federal system of registration came into being because the tax-exempt status of charities was open to abuse by taxpayer’s claims for donations to causes whose charitable nature was doubtful. Some groups simply assumed the title of “charity” to avoid paying taxes without being charities.

58He criticized the Charities Directorate established by the Federal government to administer the application of the provisions of the Act. He argues that it is ill-suited to the task and in a conflict of interest because it is responsible to maintain the integrity of the tax base and then also responsible for registering charities that could detract from the tax base. He asks how the body designated to protect the tax base can also nurture the charitable sector?

59But this is the very problem with his argument. The Federal government is not responsible to nurture the charitable sector. Its jurisdiction and responsibility are entirely to protect the tax base in the public interest.

60Aptowitzer also did not reference any of the particular requirements set out in the Act (neither s. 168(1) nor 149.1) and relate the provisions of the Act to his conclusions.

61Aptowitzer ultimately argues the Provinces need to be convinced to exercise their jurisdiction. He advocates for a Federal-Provincial “Canadian Charities Council” that would assume from the CRA responsibility for registering charities, advancing the common law definition of charities which the Federal government currently uses in administering the Act, regulating non-tax-related aspects of a charity’s registration, and ensuring compliance with the rules the Council creates.

62But this would require the participation and consent of both the Federal government and the Provinces and is an inherently political matter. Aptowitzer acknowledges that if the Provinces did not want to participate then Parliament would retain the right to reintroduce the legislation currently in the Act. It is unclear how this position is consistent with any argument that the current provisions of the Act are ultra vires the Federal government.

63Notably, Aptowitzer’s 9-page article is dated 2009, was before the 2010 decision in International Pentecostal Ministry Fellowship, and so did not consider this decision.

64Further, and to be clear, this article was delivered as part of HR Canada’s factum. Aptowitzer’s views are not sworn, were not subject to cross-examination, and do not set out in a fulsome way the materials or evidence that he relied on to form his views other than a list of references at the end without the details of what these references say.

65Donald J. Bourgeois also analyzed the issue in The Law of Charitable and Not-for-Profit Organizations, 6th Ed. (2024) (Toronto: LexisNexis Canada). HR Canada filed 8 pages of his text before me.

66Bourgeois discussed the fact that there is recognition that the Federal government does have an impact on the charitable sector and there are concerns that it may have overstepped its jurisdiction. (He also did not reference the actual provisions of the Act in the portions to which I was referred.)

67He quoted a Mowat Centre for Policy Innovation Report that concluded that the Federal government does have a clear regulatory role when it comes to regulation of charities under the Act because charities enjoy tax-free treatment. He says that the Federal government has become the default regulator as a consequence of inadequate Provincial regulation. He cites Monahan’s work and conclusion that to the extent that special tax treatment is provided to charities it is necessary and appropriate for the Federal government to regulate the terms upon which such special treatment is permitted.

68Bourgeois also cites Revenue Canada’s handbook where it indicates that the Federal government’s jurisdiction relating to income tax relief is limited by the Act and extends only to compliance with its provisions. It notes that charities may also be subject to other Federal or Provincial legislation associated with their operations.

69Bourgeois referenced the Federal Court of Appeal’s decision in International Pentecostal Ministry and ultimately concluded that either the Provincial or Federal government could legislate in the area:

The few cases that address the constitutional jurisdiction over charitable and not-for-profit organizations appear to focus on the specific powers exercised by the federal or provincial levels. They also parallel the commentators’ conclusion that, while there is an express provincial jurisdiction over charities within the province, the federal and provincial heads of power provide a constitutional basis for legislation at either level.

Interjurisdictional Immunity

70HR Canada also argues that s. 168(1) of the Act should be rendered unconstitutional based upon the doctrine of interjurisdictional immunity to the extent that it impairs the core of the Provinces’ exclusive jurisdiction over charities: Opsis Airport Services Inc. v. Quebec (Attorney General), 2025 SCC 17 at para 37.

71This doctrine is a narrow, exceptional remedy designed to capture the situation where validly enacted legislation that is intra vires is inapplicable to certain entities or undertakings because it impairs the other branch of government’s core jurisdiction over them.

72In Opsis Airport Services Inc. the court explained that for the doctrine to apply there must be intrusion on the core of an exclusive head of power and the impairment of that core. Further, the core of the power must be seriously or significantly trammelled: paras 37- 40.

73The court also explained that where the doctrine applies, the impugned legislation remains valid but is declared inapplicable to the specific person or undertaking or matter that is governed by the power of the other branch of government: para 35. This doctrine must be applied with restraint: paras 1 & 33.

74It is instructive to consider the facts of Opsis Airport Service Inc and how the court applied the doctrine in that case to appreciate why its application in this case is questionable.

75Opsis Airport Service Inc. involved three entities charged with offences under the Private Security Act, CQLR, c. S-3.5 (the “PSA”) enacted by the Quebec legislature. The PSA provided that anyone carrying on private security activity in Quebec had to have a licence. The PSA established requirements for that licence, and created a self-regulatory body who could conduct investigations and inspections and then charge entities who did not comply with the PSA.

76One of the bodies charged, Opsis, provided airport security services at the Pierre Elliott Trudeau International Airport including the call centre’s computer systems, interpreting signals from surveillance monitors, and answering emergency calls. Its activities were highly regulated by Federal legislation which set out training and other requirements. It was charged with carrying on private security activity without holding a licence issued under the PSA. The Constitution Act, 1867 gives the Federal government jurisdiction over aeronautics.

77Another entity, QSM, worked in international marine transportation. Its activities were similarly heavily regulated by Federal legislation which also set out the requirement for training. It and one of its employees, Mr. Fillian were charged with carrying on private security activity without the required licence under the PSA. The Constitution Act, 1867 gives the federal government jurisdiction over marine security.

78However, the PSA also applied to other entities conducting private security activity in Quebec, many of whom would not be working in the aeronautics or marine security or other industries over which the Federal government had exclusive jurisdiction. And because Quebec has jurisdiction over property and civil rights, it had jurisdiction to enact legislation over the private security industry.

79The Court concluded that there was an intrusion on the core of Federal power. Airports could not be severed from the Federal government’s jurisdiction over aeronautics and airport security which was at the core of this jurisdiction: para 56. Opsis’ role at the airport fell within the aeronautics power because its role related to security of air transportation. Similarly, the security of marine facilities was at the core of the Federal navigation and shipping power: para 60. Since QSM’s activities related to security guard activities of its employees at the marine terminal, the application of the PSA to QSM, and its employee Mr. Fillian, was an intrusion on the core of that head of power: para 65

80The Court concluded that the intrusion was an impairment because in order to carry on security activities in the Province of Quebec, companies had to comply with the PSA. Thus, even though these companies could operate pursuant to Federal legislation if they complied, they could not operate at all without complying with the Provincial PSA. That is, pursuant to the PSA, the Province had the power to suspend, cancel or refuse to renew an agent licence. The Provincial licensing scheme had “the final say” on the manner in which activities “falling within the core of an exclusive federal power must be conducted” and whether they could operate at all in the Province: paras 74-75.

81This is simply not the case here. A charity that does not comply with the Act and becomes deregistered can still continue to carry on with its charitable activities. It simply will not be eligible for the preferential tax treatment.

82Again, HR Canada provided no evidence related to this issue in terms of the impact of the registration scheme on charities. It provided no evidence to support its position that these provisions significantly trammeled the core of Provincial jurisdiction over charities or that in practice charities cannot and do not exist without being tax exempt, although clearly being tax exempt is a tremendous advantage.

83It is unclear why requirements related to whether or not a charity is exempt from taxation derogates from a Province’s core jurisdiction to enact legislation governing their overall management. In that regard, Provinces could still enact such legislation, and such charities could continue to operate pursuant to Provincial legislation even if they were not tax exempt.

84It is also unclear how this doctrine would apply since the Provincial head of power is over charities and all of the Federal provisions of the Act in question relate to charities. What would be the point of declaring only that these provisions did not apply to the core of the Provincial jurisdiction but not declaring the legislation invalid altogether since leaving the legislation valid would mean that it did not apply to anything.

85It seems to me that HR Canada is seeking to apply this doctrine as if it simply provides an easier test to determining whether or not legislation is ultra vires such that all it has to prove is that there is some effect on the Provincial power.

86HR Canada did not cite any law which applied this doctrine to a situation similar to this one and which would result in application of the doctrine to legislation which then remains in force and applies to nothing.

Conclusion on Serious Issue

87Notwithstanding the concerns I have expressed above, because of the low bar, the case Coram Deo and Mr. Aptowitzer’s views, I agree that HR Canada has demonstrated a serious issue to be tried.

88In RJR-MacDonald at p.337 the court explained: “Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests even if of the opinion that the plaintiff is unlikely to succeed at trial.”

Issue 2: Has HR Canada demonstrated irreparable harm if the injunction is not granted?

The Test

89The irreparable harm test is described in RJR-MacDonald as follows:

At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicant’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.

“Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms, or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court’s decision; where one party will suffer permanent market loss or irrevocable damage to its business reputation; or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined: p. 341. [Emphasis added]

90The evidence of harm cannot be inferred but must be clear and compelling, not speculative, and particularized. It cannot be based upon assumptions, speculation, hypotheticals or argumentative assertions unsupported by probative evidence: Fortius at paras 18 & 33; Ahlul-Bayt Centre, Ottawa v Minister of National Revenue, 2018 FCA 61, at para 15; Glooscap Heritage Society v. The Minister of National Revenue, 2012 FCA 255, at para 31. [Emphasis added]

Impact on HR Canada’s Ability to Continue Operations

91He says that HR Canada relies on donations to create, operate and disseminate all of its programming and that these donations are possible because of its ability to issue tax receipts. He references one other organization whose status was revoked who then indicated that it would be winding down its operations.

92However, Mr. Fegelman’s evidence in this regard consist of unsupported assertions. HR Canada has failed to provide evidence of its financial position, including its obligations, available resources and funding requirements. It has provided no evidence on HR Canada’s current financial situation in terms of how much it has currently in donations that have not been spent, how long it could continue with any such funds, how many employees it has, or anything at all about its financial status. Mr. Fegelman simply baldly states that HR Canada will be unable to continue operations without providing any reference to any aspect of its financial circumstances or its operations.

93In Glooscap at para 36, the Court concluded that without a better understanding of the charity’s overall financial situation and fundraising ability, it could not conclude that a loss of donations would result in any irreparable harm.

94In Ahul-Bayt at paras 18-20, the Court also concluded that the applicant charity had not established irreparable harm because it had not produced current budgets, cash-flow statements, or evidence of its future funding requirements that would go unfulfilled, evidence of anticipated funding amounts, committed grants, or projects that would be abandoned. See also Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 265 at para 21; Choson Kallah Fund of Toronto v Minister of National Revenue, 2008 FCA 311 at paras 8-12.

95HR Canada has similarly not provided this evidence here.

96Mr. Fegel’s evidence in this respect is speculative and is not like the evidence in Coram Deo at para 56 or Cheder-Chabad, 2013 FCA 196 at para 30 which was particularized and provided such evidence

97Mr. Fegelman also says there is no realistic prospect that donors will return even if HR Canada is successful on the appeal. He also says this will result in employee attrition as employees may exist on their own and HR Canada will be forced to terminate employees. Again, he provides no particulars such as the number of donors or employees affected. He provides only his conclusion in this regard which is expressed in a few short lines.

98See Holy Alpha at paras 21- 22 where the Court indicated that general evidence that a charity would receive fewer donations would be insufficient to establish irreparable harm:

21In my view, the receipt of a diminished amount of donations would simply mean that the Charity would have less money to give away or to meet any obligations that it may have. I fail to see how the Charity could be harmed simply because it may have less money to give away. However, harm could be demonstrated if there was evidence that specific obligations of the Charity would go unfulfilled because of a shortfall in donations. In the present circumstances, the Charity has provided no evidence of any such obligations. Indeed, the record does not appear to contain any financial statements that would portray the financial circumstances of the Charity insofar as those circumstances may be relevant to the proposed revocation of its status as a registered charity.

22Finally, the argument that the receipt of diminished donations necessarily establishes the irreparable harm element of the RJR-MacDonald test would effectively eliminate that element of the test in relation to each and every application made pursuant to paragraph 168(2)(b) of the ITA. In my view, that result would be unacceptable.

99In Coram Deo, the applicant charity provided concrete evidence of anticipated donor attrition.

100The fact that the Minister did not cross-examine on the vague and unparticularized evidence provided does not assist HR Canada because the burden was on HR Canada. A party is not required to cross examine to assist the opposite party to improve its evidence:

101Further, after the notice of revocation is published in the Gazette, HR Canada will have appeal rights under para 168(4)(a) and 172(3)(a.1) of the Act. If its statutory appeal is successful, the privileges under the Act associated with charitable status will be reinstated: Ahlul-Bayt at para 5.

102In Fortius, the applicant charity argued that it would suffer irreparable harm if the Minister could proceed with publication because it would prematurely eliminate statutory advantages it enjoys as a registered charity. The court concluded that publication of the notice did not foreclose the applicant charity’s appeal rights which would reinstate its status if successful: para 26. It pointed out that the Federal Court of Appeal has rejected assertions of irreparable harm in the context of charitable status revocation on the basis that this would mean in every case a charity could say that its work would be seriously impaired by the Minister’s revocation and reduction in donations: para 29. This would unduly undercut the power Parliament has given the Minister to protect the public interest.

103The Court in Fortius compared this to a parallel situation of proceedings where an individual loses immigration status and where courts have rejected arguments that family separation and emotional hardship arising from the removal are irreparable because they are the usual consequences of removal. This does not result in prejudice beyond the lost status itself: para 30. The court wrote:

31Absent evidence of unique or specific harm or damage, irreparable harm does not encompass the ordinary consequences that flow from an entity losing its registered charity status (such as loss of tax-exempt status, ineligibility to issue donation receipts, and payment of a revocation tax pursuant to section 188 of the ITA) To accept the argument that a reduction in donations, for example, invariably satisfies the second branch of the RJR-MacDonald test in all circumstances would “effectively eliminate that element of the test in relation to each and every application made pursuant to paragraph 168(2)(b) of the ITA (Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 265, [2010] 1 C.T.C. 161 at para. 22 (Holy Alpha))

104While Federal Court of Appeal authority is not binding on me, it is nevertheless is persuasive. I add that both parties referenced Federal Court of Appeal authority.

Reputational Harm of HR Canada and its Directors

105Reputational harm can constitute irreparable harm in appropriate circumstances: Ahul-Bayt, at paras 18-20

106HR Canada argues that revocation would irreparably harm its reputation. However, as noted, if HR Canada wins its appeal before the Federal Court of Appeal, or this Application any outcomes of the revocation will be reversed. This will go a long way to addressing any harm occasioned by the revocation. As noted, RJR-MacDonald references that which is irreparable as that which cannot be cured or which is irrevocable: p. 341.

107There is also no evidence of unique or specific harm related to HR Canada’s reputation. In that regard, all charities whose registration is revoked would be able to say the same thing. Accepting this argument without particulars of specific reputational harm to HR Canada would mean that in every case where there is a notice of intention to revoke, the mere fact of that would entitle the charity to an injunction on the basis of reputational harm.

108I again reference Fortius above. It would mean that the ordinary consequence of a loss of status would constitute irreparable harm. It would render meaningless the provisions of the Act which direct revocation occurs before the appeal is heard and determined. It would also undermine the Federal government’s ability to effectively guard against alleged abuse in the charitable sector. That is, it would mean that charities who the Federal government determined were acting contrary to the Act would continue to have tax exempt status and be able to continue issuing tax receipts for donations pending appeal in circumstances where they were considered ineligible.

109Further, as set out in HR Canada’s materials, and as I will set out further below, there was a press release issued by an organization known as Just Peace Advocates (“JPA”) indicating that it had submitted a formal complaint to the CRA requesting an audit of HR Canada. The press release is detailed and sets out specific criticisms of HR Canada alleging that it has violated Canadian law. JPA is currently sponsoring a petition against HR Canada. Mr. Fegelman indicates that as of March 4, 2026, 15,804 letters appear to have been sent in support of the petition. HR Canada has failed to demonstrate that the alleged revocation would be the cause of any reputational harm as opposed to pre-existing statements from members of the public who have publicly agitated against it.

110HR Canada also argues that this will impact its directors’ reputations by rendering the directors “ineligible individuals” to serve on the Boards of other charities.

111Director Ken Rotman argues that being rendered ineligible to sit on a charitable board pending HR Canada’s appeal would cause him profound personal and professional reputational harm. He has quite an impressive C.V. which includes sitting on both public and private boards, serving on other charitable boards and also his work in business. He is currently the Chief Executive Officer and Managing Director of Clairvest Group Inc., and on its Board of Directors as well as being its controlling shareholder. He says that he is responsible for billions of dollars’ worth of investments and that clients entrust him with large amounts of money precisely because of his reputation as a reliable, honest and astute businessman.

112He says that he has worked tirelessly throughout his entire professional career to build a reputation as a reliable, honest, and astute businessman.

113While his evidence is certainly more specific and particularized, it is difficult to separate the impact of the revocation from his association with a charity which has already been the subject of adverse publicity.

114Further, and again, HR Canada could succeed in this application related to Constitutional issues or on the appeal before the Federal Court of Appeal. In my view, that would go a long way to curing the impact on his reputation if the appeal or this application were successful. If HR Canada does not succeed on the appeal and in this application, then the outcome for him is the ordinary consequence of the application of the Act.

115With respect to Mr. Rotman’s concerns, it is also relevant the Act is clear that upon a notice of revocation being published a Director becomes ineligible. As such, all individuals who agree to become Directors of charities know or have the means to know that if the charity is deregistered, they could become an ineligible individual. Mr. Rotman became a Director with knowledge of this risk or at least had the ability to discover it as it is apparent on a plain reading of the Act.

116It is also relevant there is no evidence that his association with HR Canada is widely or even mildly known although his filing an affidavit in this proceeding has made this association quite public.

117Mr. Rotman also believes that as an ineligible individual he would have to resign from charitable boards to protect them and in fact he has already done so pre-emptively. He intends to and hopes to be able to obtain new opportunities to serve as a director of charitable boards. If HR Canada wins its intended appeal before the Federal Court of Appeal, or wins this application, then he would no longer be ineligible to do so and so his future prospects, in my view are not irreparable. And he has already resigned from the charitable boards on which he sits so that harm has already occurred.

118Mr. Rotman also says that if he is rendered ineligible, it could cause the CRA to refuse or revoke the registration or suspend the receipting privileges of other charitable organizations with which he is associated.

119However, the Minister says that a determination that a person is ineligible does not prohibit that individual from serving as a director of other charities. It also would not automatically render other organizations with whom such Directors may be associated ineligible for charitable registration or continued registration. Rather, the revocation may lead to a review by the CRA and may be a factor that the CRA takes into account to consider that organization’s eligibility for registration: CRA policy, Guidance CG-024, Ineligible Individuals:

Although it does provide authority to do so, the Income Tax Act does not require the CRA to take any administrative measures when an ineligible individual is on the board of, or controls or manages, a registered organization. The CRA will consider each case separately. When the CRA has concerns about an ineligible individual, it will give the organization an opportunity to respond before any action is taken.

120If the CRA were to give notice that it had concerns about an ineligible person, it could determine that the organization’s assets are adequately protected in which case, registration and receipting privileges will not be affected, even if there is an ineligible person on the board.

121There is no evidence before me that the CRA has given any notice that it intended to take any action as against Mr. Rotman or any organization on whose Board he served. As such, the concerns raised at this point are speculative.

122Mr. Rotman also says that it “may jeopardize” his ability to renew certain security clearance which he holds with unspecified governments and international organizations which are important for Clairvest. He also says that Clairvest has made investments in gaming operations and that being an ineligible individual “could impact” its ability to operate in the gaming industry in the United States or “may compromise” his ability to be licensed in the U.S. gaming industry.

123While HR Canada argues that it would be inappropriate to require him to obtain evidence from these entities to corroborate his statement as this could cause him the harm he seeks to avoid, he did provide any of his own corroborative evidence and did not even reference the law or policy guidelines that could apply to these determinations or any details at all that would permit the court to consider these concerns.

Impact on Third Parties

124A court can consider the impact of the failure to grant an injunction on third parties: International Charity Association Network at para 66; Fortius at para 18; Coram Deo at para 53; Holy Alpha and Omega Church of Toronto v. the Attorney General of Canada, 2009 FCA 265 at para 17.

125Mr. Fegelman, provided a summary of the kinds of work that HR Canada does which has included making available resources and programming including podcasts, speaking engagements, webinars, short-form videos, social media posts, workshops, symposia and educational backgrounders.

126He referenced considerable evidence about a surge in antisemitism in Canada including the Annual Report of the Office of the Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism. Jewish day schools have been shot at repeatedly. Synagogues have been fired at and vandalized.

127He argues that HR Canada’s work in spreading awareness of antisemitism to the general public and equipping the Jewish community with knowledge and resources to combat antisemitism has never been more vital and that if the injunction is not granted and it cannot continue its work, this will have an irreparable impact on the Jewish community.

128The evidence certainly supports HR Canada’s assertion that work combatting antisemitism has never been more important. The increasing acts against the Jewish community members fueled by antisemitism he cites is shocking and appalling to say the least.

129However, and again, the evidence on whether HR Canada will be able to continue operations until the intended appeal is determined, or this application is determined is speculative and unsupported. It has provided no particularized evidence at all on its financial circumstances as set out above.

130As well, HR Canada provided no evidence other than a summary of programs. It did not provide any examples of these materials as part of its materials.

131With respect to educational materials, it has already produced, and which are already being provided to Jewish organizations, it is unclear why it would be unable to continue disseminating these materials pending the intended appeal and the final outcome of this application.

132With respect to certain educational materials that it is in the “process of producing”, Mr. Fegelman provided no evidence on how complete they are, what it would take to complete them, what its actual financial position is, and why its current financial condition would not permit it to complete these materials.

133Finally, HR Canada has not provided any evidence from any third parties on any harm they would suffer. In Glooscap, the charity had adduced evidence from third parties. However, even then the court did not consider this evidence compelling because much of the evidence consisted of sweeping, unparticularized assertions, which is also the case here: para 35. See also Holy Alpha at para 18 where the Court referenced a previous decision it had made where irreparable harm had not been established because there was no evidence of harm to a specific person or organization demonstrably dependent on the charity in question.

134Furthermore, in International Charity Association Network at para 67, the Court rejected the same argument that member agencies would be affected by the revocation pending appeal. Even though there was an affidavit filed by the moving party, it had introduced no evidence from member agencies describing how the suspension of privileges would affect them. That is, there were no exhibits from any third-party corroborating that any third party would be adversely and significantly affected. There was no evidence of how much member agencies depend on the moving party charity, or whether the moving party’s contribution to them was modest or substantial.

135HR Canada argues that providing this type of evidence would cause the kind of harm it is seeking to avoid, but it could have still provided its own understanding of how reliant third parties are on its materials with specificity.

136In Coram Deo, the applicant charity particularized identified specific third parties affected and showed the direct consequences for defined programs: para 56. Similarly, in Cheder-Chabad, 2013 FCA 196 at para 30, the applicant charity showed through specific evidence that it would not be able to meet tuition obligations for children enrolled at a religious school.

137There is no such evidence before me.

Damages will Never be Adequate in a Constitutional Case Such that Analysis of Irreparable Harm is Less Important?

138I also reject the argument advanced that it is unclear whether damages can ever be an appropriate remedy in a division of powers case such that injunctions should always be favoured. HR Canada relies on Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 1614 at paras. 1-2 [Québec (Procureur général)]. That case dealt with the destruction of the firearms registry which clearly could not be undone once it occurred and which had to be reconstituted. The sweeping conclusion advanced is inconsistent with considerable caselaw below in respect of the public interest being a special factor weighing in favour of dismissing an injunction that would restrain government action pursuant to its mandate to protect the public.

Issue 3: Who does the balance of convenience favour?

139The balance of convenience relates to which party will suffer more harm from the granting or refusal of an interlocutory injunction pending a decision on the merits: International Charity Association Network, at para 71.

140A relevant consideration here is the public confidence in the CRA’s ability to oversee registered charities: International Charity Association Nework at para 72.

141In RJR-MacDonald, the Supreme court wrote:

The decision in Metropolitan Stores, at p. 149, made clear that in all constitutional cases the public interest is a 'special factor' which must be considered in assessing where the balance of convenience lies and which must be "given the weight it should carry". This was the approach properly followed by Blair J. of the General Division of the Ontario Court in Ainsley Financial Corp. v. Ontario Securities Commission, (1993), , 14 O.R. (3d) 280, at pp. 303-4:

Interlocutory injunctions involving a challenge to the constitutional validity of legislation or to the authority of a law enforcement agency stand on a different footing than ordinary cases involving claims for such relief as between private litigants. The interests of the public, which the agency is created to protect, must be taken into account and weighed in the balance, along with the interests of the private litigants: p. 343 [Emphasis added]

142See also Smith v. Inner London Education Authority, [1978] All E.R. 411 at p. 422 (cited in International Charity Association at para 75) where the court explained:

. . In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

143See also Fortius where the Court held that the public has a legitimate interest in the exercise of the CRA’s statutory mandate to enforce the obligations applicable to registered charities under the Act and that this attracts significant weight in the analysis of the balance of convenience: para 39. See also Cheder Chabad at para 32 which held that the public interest is to be widely construed in matters involving the integrity of the charitable sector and in ensuring that the advantages given under the Act at great expense to the taxpayers are properly managed.

144In The Jewish Community Council of Montreal v. the Attorney General, 2024 FC 1163, the court also acknowledged that in most cases the balance of convenience will favour a public authority exercising its powers under existing regulatory framework in the public interest. That case involved legislation related to the slaughter of animals and animal cruelty and the Applicant’s assertion violated their freedom of religion because they impacted the supply of kosher meat and deprived them of an important tenet of their faith. There was legislation that required animals to be unconscious when slaughtered. There were Guidelines that had three indicators of unconsciousness to prove that animals were unconscious before killed. The court was satisfied that the injunction restraining the use of the three indicators of unconsciousness in the Guidelines would have a low impact on the public interest because animal slaughter would still continue pursuant to legislation that required animals to be unconscious when slaughtered. That is, the evidence established that the legislation had worked in the absence of the three indicators in the Guidelines.

145This is not like the case before me because if the injunction is granted, then the Minister will be stopped from exercising its public duty altogether with respect to HR Canada as set out in the applicable legislation.

146In International Charity Association Network at para 78, the court concluded that the balance of convenience favoured the CRA because postponing the suspension would handcuff the CRA’s capacity to administer charities under the Act, to ensure compliance and protect the public interest. In that regard, the CRA is charged with ensuring that public funds are properly applied and an injunction will stop it from exercising this important function.

147In Cycle Toronto v. Attorney General of Ontario et al, 2025 ONSC 1650, Senior Regional Justice Firestone concluded the balance of convenience weighed significantly in favour of dismissing a motion for injunctive relief because of the public interest:

78The courts’ role on this interlocutory motion is not to second-guess the wisdom of the policy or to question whether it really serves the public interest. It is assumed to do so. Ontario is entrusted with a mandate to determine how bike lanes are to co-exist with vehicular traffic. The applicants must convince the court that granting the interlocutory injunction will do more for the public interest by protecting rights: Harper para. 9, RJR-McDonald para. 68. The assumption of the public interest in enforcing the law weighs heavily in the balance. Only in “clear cases” will interlocutory injunctions against the enforcement of a law on the ground of unconstitutionality succeed: [Harper v. Canada (Attorney General), 2000 SCC 57 at para 9]

148It is also relevant to the balance of convenience and HR Canada’s allegations of irreparable harm that HR Canada sought and obtained charitable status based on the very requirements that it now says are unconstitutional. It also knew or had the means to know, that if it did not comply or the Minister concluded that it did not comply, its registration could be revoked within 30 days. In making this finding I am not concluding that HR Canada will lose its appeal on the merits or that the Minister’s allegations are proven. Rather, this relates only to the provisions that provide that the registration can be revoked within 30 days of the Minister’s conclusion which is something that HRC signed up for when it sought this privileged tax-exempt status.

149I also take into account here the impact on Canadian Jews and the need for resources to combat antisemitism, but as noted, the evidence provided as to whether HR Canada will be unable to continue providing this support is speculative, unparticularized with no specific evidence of its financial circumstances. While Mr. Fegelman baldly states that he is unaware of any Jewish charity delivering the scope of materials that HR Canada provides, he provides no corroboration for this or analysis in support. It is simply his belief.

150As well, it is reasonable to infer that many individuals who will only donate to a charity if they receive a charitable receipt will seek out other similar charities to donate to until the issues with HR Canada are finally determined.

151In Cheder-Chabad at para 25 the court stated:

25In this regard, I note that this Court has repeatedly stated that the loss of the ability to issue tax receipts for gifts and the reduction in the ability of a charity to transfer funds to qualified donnees is not per se proof of irremediable harm: Choson Kallah Fund of Toronto v. Minister of National Revenue, 2008 FCA 311, 383 N.R. 196 at paras. 6 to 10. I agree. Charitable donations may be directed by donors to other charitable organizations, and the charitable work of an affected charitable organization may in many instances be assumed by another charity. [Emphasis added]

152With respect to the arguments about delay, I do not consider the Minister’s delay a significant factor. The Minister began the audit in 2024, provided its administrative fairness letter on July 14, 2025, which was lengthy, (almost 36 pages long) and contained detailed findings. It gave HR Canada an opportunity to respond which it did on September 12, 2025, which response was also detailed (17 pages long). The Minister then issued the letter of revocation in January 2026. The materials are voluminous. The issues raised were not insignificant and HR Canada’s response was also lengthy. Based on the issues in these documents, I conclude that it would have taken significant time to do this audit, significant time to assemble the materials, significant time to review HR Canada’s response and then make a decision. Indeed, because of the nature of the outcome it was appropriate for the Minister to take its time in considering the matter, HR’s responding position, and then deliver a appropriate response.

153I also wish to comment on some aspects of the materials before me that I did not find very relevant to this proceeding:

• HR Canada references the fact that it was not given an opportunity to meet with a representative of the CRA to address its submission responding to the Minister’s concerns or take corrective actions or enter into a compliance agreement or suffer less punitive sanctions with respect to non-compliance. Again, while this might be relevant to an appeal of the revocation, it is unclear how this is relevant to the Constitutional issues.

• It also expresses the belief that there is an organized campaign to challenge the charitable registration of entities devoted to countering antisemitism to undermine the interests of the Jewish community. HR Canada references a petition submitted to the Government of Canada related to “Canadian charities providing charitable tax receipts for Israeli organizations actively supporting what the International Court of Justice deems ‘plausible’ genocide in Gaza’”. This petition requested the investigation of charities that operate in violation of the Act. It is unclear what the relevance is to the Constitutional issues as opposed to the merits of the decision revoking HR Canada’s registration.

• It expresses the belief that there appears to be a pattern of the CRA pursuing the revocation of Jewish charities citing a National Post article referencing 8 such examples. This article is not evidence admissible for its truth. Further, there is no context in respect of how many other organizations have had their status revoked during the same period. Again, this alleged bias does not relate to the Constitutional issues but to the underlying merits which is relevant to an appeal before the Federal Court of Appeal.

• HR Canada references the fact that the Minister has not provided it with a copy of the audit file or answered its request under the Access to Information Act, R.S.C. 1985, c. A-1. However, the audit file relates to the merits of the reasons why HR Canada was deregistered. Indeed, Mr. Fegelman says that his concern is that because of this nonproduction, he does not know “the extent to which the CRA relied on complaints from or solicited from JPA and the contents of those complaints in initiating and undertaking the compliance audit of HR Canada as well as the CRA’s conclusions.” I draw no adverse inference as requested by HR Canada because it is unclear how the audit file would be relevant to the Constitutional issue and part of the test involves consideration of whether the evidence of the witness, or in this case the documents, is key: Parris v. Laidley, 2012 ONCA 755 at para 2; Tiwari v Chevalier, 2022 ONSC 3071 at paras 27-29; Block Developments Inc. v. Brewers Retail Inc., 2024 ONSC 1401 at para 22. The Minister indicates that it will provide the audit file for the purposes of the appeal before the Federal Court of Appeal which is the venue where the audit file matters.

• HR Canada also objected to Minister’s filing of certain government documents which it has asserted are admissible for their truth. These documents certainly are admissible for their truth pursuant to established caselaw cited. However, I do not consider them because the Minister did not give any notice that it would be relying on these until it served its factum. If these are to be admissible as evidence, HR Canada should have been given notice so it could have responded to these materials if it wished.

Balancing All Factors

154As noted above, the three criteria are not watertight compartments. Balancing all factors, in my view it is not in the interests of justice that an injunction be granted restraining the Minister from publishing the notice in the Gazette.

Issue 4: Should this court decide the application at this time and dismiss it or decline jurisdiction?

Dismissal?

155As a final matter, HR Canada asked this court to dismiss this application at this time.

156It referenced the statement in RJR-MacDonald that a court should proceed to the second and third aspects of the test unless there was a question of constitutionality which presented itself as a simple question of law alone: p. 337. The court noted that this second exception is rare and gave a theoretical example where a parliament enacted a law that would impose a state religion. See also Gaetan Chip Stand Inc. v The Corporation of the Township of North Glengarry, (O.N.S.C.) at para 20 where the court cautioned against determining a Constitutional issue with finality at the motion stage on the basis that it presents as a pure issue of law.

157This case does not fall within that narrow exception. As well, the Minister did not give HR Canada notice in advance that it would be seeking this relief.

Jurisdiction?

158The Minister has argued that this court either does not have jurisdiction or should decline jurisdiction as this matter should be heard by the Federal Court of Appeal as part of its stay application or as part of the appeal HR Canada intends to launch before the Federal Court of Appeal.

159There is an argument that it is preferable for one court to deal with all issues. There could conceivably be inconsistent findings if HR Canada proceeds before different courts.

160The Federal Court of Appeal has particular expertise regarding the interpretation and application of the Act’s registered charity provisions. In R v. Zolotow, , aff’d 2008 ONCA 163 at paras 8-10, this court declined to exercise its jurisdiction to hear an action for the return of goods seized under the federal Customs Act, RSC, 1985, c. 1, citing the Supreme court decision in Reza v. Canada, where the court stated:

14Even if a court has jurisdiction, it may decline to exercise that jurisdiction under section 106 of the Courts of Justice Act. On its own initiative or on a motion by any person, the court may stay any proceeding in the court on such terms as are considered just on its own.

16Where a statute provides a comprehensive code for challenging actions under its provisions and the Federal Court is an effective and appropriate forum, the provincial court should decline its jurisdiction to hear the case: In Reza v. Canada, , [1994] 2 S.C.R. 394 at para. 21, Justice Abella pointed out in her dissent at the Ontario Court of Appeal, adopted subsequently by the Supreme Court, failing to decline to exercise jurisdiction raises concerns over forum-shopping, inconsistency and multiplicity of proceedings. While this principle was established in the context of immigration, it is equally applicable to the customs context.

161Given the argument being made that the Federal Court of Appeal’s decision in International Pentecostal Ministry Fellowship was wrong and does not accord with recent caselaw, there is an argument that it should be given an opportunity to consider this and HR Canada’s argument afresh.

162Although HR Canada questions whether the Federal Court of Appeal has jurisdiction to decide the Constitutional issues raised, the Federal Court of Appeal has already done so in an appeal under s. 172(3) in International Pentecostal Ministry Fellowship.

163Indeed, Constitutional issues have been specifically raised in the context of appeals of revocation of charitable status under subsection 172(3): Opportunities for the Disabled Foundation v. Canada (National Revenue), 2010 FCA 51; Church of Atheism of Central Canada v. Canada (National Revenue), 2019 FCA 296.). See also Canadian Transit Company v. Windsor (City), 2015 FCA 88, [2016] 1 F.C.R. 265 which held that the Federal Court of Appeal has jurisdiction to make declarations on constitutional issues like paramountcy and interjurisdictional immunity: paras 20, 47-70.

164See however the dicta in Canadian Transit Company v. Windsor (City), 2015 FCA 88, reversed 2016 SCC 54 where the Supreme Court did not conclude that the Federal Court of Appeal did not have jurisdiction to declare legislation constitutionally invalid but did decline to comment on the issue of whether it had such jurisdiction because it was not necessary for the decision at hand.

165Permitting HR Canada to proceed in respect of this issue before this court when there is a clear Federal Court of Appeal authority to the contrary may also permit forum shopping.

166In Apotex Inc. v. Abbott Laboratories, 2013 ONSC 2958, aff’d 2013 ONCA 555 the Court concluded that the applicant had brought the proceeding to the Superior Court “to circumvent determinations that have already been made by the Federal Court that would seem plainly to bind it, thus leaving itself open to an allegation that it is engaging in forum shopping” (at para. 24). The court took into account the fact that the arguments made were strikingly similar to an unfavourable previous decision of the Federal Court (at para 27).

167In Neira (Guardian of) v. Canada (Secretary of State) (1994), , 98 B.C.L.R. (2d) 344 (C.A.) the B.C. Supreme Court declined to exercise its jurisdiction on an immigration matter because the Federal Court was a more appropriate forum to decide the issues. The Court of Appeal held that:

Applicants should not be permitted to forum shop, and allowing the appellant's application would encourage that. The Neira matter is already before the Federal Court of Appeal. The Marinas matter can be dealt with on application to that court if applicants so choose. It is not appropriate to circumvent the Federal Court in cases such as is being attempted here. (At para. 31).

168Although the Minister did ask in its further written submissions that this court determine that it does not have jurisdiction, or that it decline jurisdiction, there is no formal motion brought by the Minister.

169HR Canada has raised a host of complicated arguments about the Federal Court of Appeal’s jurisdiction notwithstanding its decision in International Pentecostal Ministry Fellowship, the possible inability of HR Canada to file any materials related to the Constitutional issues as part of its appeal, and its argument that it would be inappropriate to decide the Constitutional issues in a summary manner under ss. 180(3) of.

170There are also complicated arguments about whether HR Canada could have raised the Constitutional issues as part of its s. 168(2)(b) stay application before the Federal Court of Appeal.

171The Minister has provided responses to these but in my view, the Court should not consider or decide these issues on the fly without giving the parties the opportunity to properly brief them, and I have not taken any of these into account in my consideration of the injunction.

172The pressing issue here is the request for the interlocutory injunction.

173As such, I am permitting the Minister to bring a formal motion for a stay at a later date to address any jurisdictional concerns it wishes to raise.

Conclusion

174The motion is dismissed.

175HR Canada has asked for a ten-day interim stay to permit it to seek an expedited appellate review if the injunction is not granted for ten days.

176The Minister opposes this interim stay on a number of bases, primarily that it would undermine the integrity of the Act’s registered charity regime and the Minister’s authority to publish.

177I agree.

178In any event, the Minister also submitted that it does not intend to publish within the next ten days. This is more than sufficient time for HR Canada to launch an appeal of this decision or seek interim relief from the Federal Court of Appeal within its stay application.

179As well, as noted, if the Minister wishes it can bring a formal motion for a stay. I am seized.

180The parties agreed at the outset that no costs would be payable regardless of who won.

Papageorgiou J.

Released: April 24, 2026

Corriegendum.

1. In paragraph 130, the statement “It provided no evidence as to how many bodies receive and use its materials or who they are” was deleted. It was the intention of the court to delete this sentence prior to release but through administrative error this was not done.

2. The date immediately above was changed from “March 24, 2026” to “April 24, 2026”. This was also a clerical error.

Footnotes

1. 1Monahan is cited by Donald J. Bourgeois in The Law of Charitable and Not-for-Profit Organizations, 6th Ed