Beaubier,
T.C.C.J.:—This
matter
was
heard
in
Regina,
Saskatchewan,
on
14
October
1992.
It
is
an
appeal
pursuant
to
the
General
Procedure
of
this
Court.
At
issue
is
whether
sums
paid
to
the
appellant
as
housing
allowances
in
accordance
with
her
employment
by
Wesley
United
Church
of
Regina,
a
pastoral
charge
of
the
United
Church
of
Canada,
are
deductible
pursuant
to
subparagraph
8(1)(c)(ii)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
for
the
years
1986
and
1987.
In
1986
this
amounted
to
$4,000;
in
1987
to
$2,663.
The
appellant
called
as
witnesses
herself;
the
Reverend
Doctor
J.
M.
Ryan,
retired,
a
former
President
of
Conference
of
the
United
Church
of
Canada;
the
Very
Reverend
Doctor
Walter
Farquharson,
who
stepped
down
as
Moderator
of
the
United
Church
of
Canada
in
August
of
1992;
and
the
Reverend
W.R.
Wall
who
is
the
Executive
Secretary
of
the
Saskatchewan
Conference
of
the
United
Church
of
Canada,
and
has
been
for
the
last
seven
years.
The
Crown
did
not
call
any
witnesses.
All
of
the
witnesses
were
completely
credible
and
cross-
examination
merely
served
to
clarify
certain
topics.
The
appellant
went
to
university
and
has
extensive
training
in
music.
She
possesses
a
teaching
certificate.
She
has
also
been
a
homemaker
and
mother
for
fifteen
years.
She
has
been
very
active
in
the
United
Church
of
Canada
and
has
chaired
a
number
of
church
committees.
The
appellant
applied
for
the
position
of
“
Christian
education
staff
associate"
in
the
United
Church
of
Canada.
Upon
application
she
was
interviewed
by
an
interview
board
of
ten
ordained
and
lay
people
in
the
church.
She
was
given
a
psychological
examination.
After
this
she
received
Conference
approval
as
being
qualified
for
the
position.
Once
the
appellant
was
approved
by
Conference
she
was
recommended
to
presbytery
and
she
was
appointed
by
Wesley
United
Church
of
Regina
to
the
position
of
“Christian
education
staff
associate"
and
paid.
It
was
a
one-half-
time
position.
Part
of
her
remuneration
in
1986
and
1987
constituted
the
housing
allowances
in
question.
Her
appointment
was
resolved
at
a
meeting
of
the
Regina
Presbytery
on
24
September,
1985
at
the
same
time
and
by
the
same
procedure
as
were
the
appointments
of
another
“Christian
education
staff
associate"
and
four
ordained
ministers
of
the
United
Church
of
Canada
(Exhibit
A-3,
page
85-81).
Exhibit
A-4,
at
page
6,
describes
the
salary
schedule
and
categories.
The
categories
are
as
follows:
Ordained
minister
Diaconal
Minister
Trained
Lay
Supply
Minister
Untrained
Lay
Supply
Minister
and
Staff
Associate
The
first
two
sentences
of
the
paragraph
preceding
this
Schedule
read
as
follows:
The
salary
schedule
for
an
ordained
minister
and
diaconal
minister
is
set
by
the
executive
of
general
council.
The
salary
schedule
for
a
trained
lay
supply
minister,
an
untrained
lay
supply
minister
and
a
staff
associate
are
set
by
the
division
of
mission
in
Canada.
Exhibit
A-5
was
filed
by
the
appellant.
The
typed
portion
details
the
tasks
set
for
her
by
Wesley
United
Church.
Its
typed
contents
are
best
described
by
its
heading:
A)
LEAD
ROLE—Christian
Education
The
appellant
and
Reverend
Ryan,
who
was
at
Wesley
United
Church
while
the
appellant
was
employed
there,
described
other
tasks
performed
by
the
appellant
in
the
course
of
her
employment.
They
were
part
of
a
team
of
ministers
with
Reverend
David
Iverson
which
ministered
to
Wesley
United
Church
and
which
met
together
regularly
to
review
and
direct
their
mutual
duties.
Reverend
Iverson
preached
three
sermons
out
of
four.
Reverend
Ryan
preached
the
other
one.
The
appellant
conducted
Christian
education
including
Sunday
school,
youth
programs,
and
attendances
upon
Sunday
school
teachers
and
potential
Sunday
school
teachers.
Reverend
Iverson
visited
the
hospitals
and
Reverend
Ryan
visited
senior
citizen
homes.
The
appellant
also
assisted
in
worship.
On
one
occasion
she
led
worship
and
at
other
times
she
assisted
in
communion
and
baptism.
Reverend
Ryan
testified
that
on
June
21,
1987,
the
appellant
and
the
Reverend
Ryan
together
conducted
a
communion
service
when
the
Reverend
Iverson
was
absent.
In
that
service
the
appellant
did
exactly
the
same
tasks
as
Reverend
Iverson
would
have,
had
he
been
there.
While
she
was
employed
by
Wesley
United
Church,
the
appellant
had
no
other
tasks
than
the
ones
which
she
performed
for
Wesley
United
Church,
excepting
for
her
duties
in
her
home.
Exhibit
A-7
was
introduced.
It
is
a
letter
by
Reverend
Wall
which
states
“,
.
.that
a
staff
associate
is
regarded
as
“clergy”
within
the
United
Church
of
Canada
”
Testimony
was
given
that
in
her
position
the
appellant
could
be
authorized
to
give
all
of
the
sacraments
of
the
United
Church
of
Canada.
Ordinary
lay
people
cannot
be
so
authorized.
The
appellant
was
never
so
authorized
and
such
authority
was
never
asked
for.
The
evidence
is
that
all
of
the
persons
in
the
categories
described
in
the
quotation
from
Exhibit
A-4,
page
6,
can
be
so
authorized
in
the
United
Church
of
Canada.
Even
the
ordained
ministers
require
some
authorization.
In
cross-examination
the
appellant
stated
that
an
ordained
minister
of
the
United
Church
of
Canada
has
a
university
degree,
the
approval
of
presbytery
and
of
Conference
and
is
ordained
by
a
ceremony
at
the
Conference
level
by
the
President
of
Conference.
Diaconal
ministers
are
trained
and
are
not
subordinated
to
ordained
ministers.
The
evidence
of
various
witnesses
is
that
the
ordained
minister
is
called
"Reverend"
and
is
of
the
order
of
"word,
sacrament
and
pastoral
care"
and
usually
does
the
preaching.
The
ordained
minister
is
assisted
by
lay
pastoral
ministers.
A
diaconal
minister
is
"commissioned",
not
ordained,
and
is
of
the
order
of
"education,
service
and
pastoral
care".
The
diaconal
minister
is
assisted
by
a
staff
associate
such
as
the
appellant.
It
is
noteworthy
that
in
Wesley
United
Church
there
were
two
ordained
ministers,
one
staff
associate
(the
appellant)
and
no
lay
pastoral
minister.
The
Very
Reverend
Doctor
Farquharson
stated
in
cross-examination
that
upon
proper
authorization
a
staff
associate
such
as
the
appellant
may
perform
all
the
tasks
of
an
ordained
minister
within
a
limited
time
frame.
This
was
confirmed
by
Reverend
Wall.
The
provision
of
the
limited
time
frame
applies
to
all
Ministers
excepting
ordained
ministers.
However,
Reverend
Wall
testified
that
in
the
United
Church
of
Canada
presbytery
of
Prince
Albert,
a
Diaconal
Minister
has
been
appointed
to
administer
the
sacraments
without
any
limita-
tion
whatsoever.
The
Very
Reverend
Doctor
Farquharson
filed
Exhibit
A-14
which
contained
resolution
number
19
of
the
General
Council
of
the
United
Church
of
Canada.
This
was
passed
in
August
of
1992
while
he
was
Moderator
of
the
United
Church
of
Canada,
the
highest
office
of
the
United
Church
of
Canada.
It
reads:
RESOLUTION
NO.
19
Title:
Definition
for
"Ministry
Personnel”
Origin:
Division
of
Ministry
Personnel
and
Education
Financial
Implications:
none
WHEREAS
the
term“
ministry
personnel”
is
used
frequently;
and,
WHEREAS
the
term
has
not
been
defined,
THEREFORE
BE
IT
RESOLVED
THAT
1.
The
34th
General
Council
approve
the
definition
of
the
term,"ministry
personnel"
and
its
addition
to
The
Manual,
Section
1,
Definitions:
Ministry
Personnel
shall
mean
those
persons
who
are
members
of
the
order
of
ministry,
those
lay
persons
under
appointment
as
lay
pastoral
minister,
lay
pastoral
minister
in
training,
staff
associate,
student
supply,
intern
supply,
candidate
supply,
and
those
persons
from
other
denominations
under
appointment
as
ordained
or
diaconal
supply.
The
Very
Reverend
Doctor
Farquharson
stated
that
this
passed
without
debate
and
that
it
represents
the
consensus
of
the
United
Church
of
Canada
and
the
understanding
of
the
United
Church
of
Canada
before
that
date
regarding
the
status
of
a
"staff
associate"
such
as
the
appellant.
He
specifically
testified
that
the
appellant
would
have
been
a
Minister
of
the
United
Church
of
Canada
in
1986
and
1987
and
that
it
was
so
understood
in
1986
and
1987.
He
stated
that
only
such
recognized
Ministers
are
responsible
to
presbytery,
which
is
the
equivalent
to
a
bishop
in
some
other
Christian
churches.
The
Very
Reverend
Doctor
Farquharson
went
on
to
state
that
the
result
of
the
process
of
selection
of
a
staff
associate
is
that
that
person,
once
chosen,
is,
in
his
words,
"covenanted
for
the
ministry”.
He
stated
that
ultimately
presbytery
decides
who
is
going
to
be
a
minister
of
the
United
Church
of
Canada
and
presbytery
and
the
persons
in
charge
decide
the
tasks
of
each
minister;
thus
the
ministry
is
not
exclusive
to
ordained
ministers
although
they
are
preferred
in
most
cases.
Reverend
Ryan
stated
that
this
role
of
a
staff
associate
has
come
to
pass
because
of
the
shortage
of
ordained
clergy,
although
authorization
of
a
staff
associate
to
give
sacraments
occurs
even
where
there
is
not
a
shortage
of
ordained
ministers.
Paragraph
8(1)(c)
of
the
Income
Tax
Act
reads
as
follows:
8.
Deductions
allowed
(1)
In
computing
a
taxpayer's
income
for
a
taxation
year
from
an
office
or
employment,
there
may
be
deducted
such
of
the
following
amounts
as
are
wholly
applicable
to
that
source
or
such
part
of
the
following
amounts
as
may
reasonably
be
regarded
as
applicable
thereto:
(c)
Clergyman's
residence.—
where
the
taxpayer
is
a
member
of
the
clergy
or
of
a
religious
order
or
a
regular
minister
of
a
religious
denomination,
and
is
in
charge
of,
or
ministering
to
a
diocese,
parish
or
congregation,
or
engaged
exclusively
in
full-time
administrative
service
by
appointment
of
a
religious
order
or
religious
denomination,
an
amount
equal
to
(i)
the
value
of
the
residence
or
other
living
accommodation
occupied
by
him
in
the
course
of
or
by
virtue
of
his
office
or
employment
as
such
member
or
minister
so
in
charge
of
or
ministering
to
a
diocese,
parish
or
congregation,
or
so
engaged
in
such
administrative
service,
to
the
extent
that
such
value
is
included
in
computing
his
income
for
the
year
by
virtue
of
section
6,
or
(ii)
rent
paid
by
him
for
a
residence
or
other
living
accommodation
rented
and
occupied
by
him,
or
the
fair
rental
value
of
a
residence
or
other
living
accommodation
owned
and
occupied
by
him,
during
the
year
but
not,
in
either
case,
exceeding
his
remuneration
from
his
office
or
employment
as
described
in
subparagraph
(i);
Paragraph
8(1)(c)
was
last
amended
in
1956.
The
case
law
has
established
that
there
is
a
two-fold
test
to
determine
whether
or
not
the
appellant
can
fall
within
the
ambit
of
this
paragraph.
Applying
these
tests
to
the
appellant,
she
must
establish
that
she
is:
1.
a
regular
minister
of
a
religious
denomination,
and
is
2.
ministering
to
a
congregation.
There
is
no
question
that
in
1986
and
1987
the
appellant
was
employed
by
and
was
a
member
of
the
United
Church
of
Canada
which
is
a
religious
denomination.
She
was
ministering
to
the
congregation
of
Wesley
United
Church
in
Regina,
Saskatchewan,
in
the
manner
in
which
she
was
directed
by
presbytery.
The
question
remains
as
to
whether
or
not
the
appellant
was
a
"regular
minister".
In
Re
Penner
and
Schreyer,
[1974]
5
W.W.R.
500,
47
D.L.R.
(3d)
462
(Man.
Q.B.),
Mr.
Justice
Nitikman
stated
at
page
464
he
was
in
full
agreement
with
the
reasoning
of
his
brother
Mr.
Justice
Solomon
contained
in
the
same
case.
Mr.
Justice
Solomon
specifically
stated
that
in
dealing
with
the
meaning
of
the
term
“Minister”
in
that
case,
he
was
interpreting
the
word
"Minister"
strictly
(pages
510-11
(D.L.R.
471)).
At
page
512
(D.L.R.
473)
Mr.
Justice
Solomon
stated
as
follows:
This
Court
is
satisfied
that
the
Legislature
intended
to
disqualify
pastors
and
professional
spiritual
leaders
in
charge
of
the
spiritual
well-being
of
their
congregations
from
becoming
returning
officers
because
of
their
inherent
influence
on
members
of
their
congregations.
The
term
minister”
as
used
in
the
Act
refers
to
persons
in
charge
of
congregations,
to
pastors
or
spiritual
leaders
who
guide
the
spiritual
welfare
of
their
flocks.
It
is
used
along
with
the
terms
“
priests”
and
"ecclesiastics"
to
denote
persons
who,
in
some
churches,
occupy
positions
similar
to
priests
or
ecclesiastics
in
other
church
organizations.
In
hierarchical
churches
such
as
the
Roman
Catholic
and
High
Anglican,
a
pastor
of
a
congregation
is
called
a
priest,
a
clergyman
or
an
ecclesiastic,
but
a
pastor
or
spiritual
head
of
the
Protestant
Church
is
called
a
minister.
The
evidence
before
the
Court
is
that
the
appellant
was
one
of
those
in
charge
of
the
Congregation
of
Wesley
United
Church
and
was
a
spiritual
leader
who
guided
the
spiritual
welfare
of
her
flock.
She
was
specifically
appointed
by
presbytery
to
that
position
and
was
hired
by
Wesley
United
Church
and
employed
in
that
position.
To
obtain
this
appointment
she
had
passed
the
various
tests
required
of
her
by
the
various
hierarchical
authorities
of
the
United
Church
of
Canada.
The
evidence
before
the
Court
is
that
she
did
this
daily
without
fail
at
Wesley
United
Church
in
Regina
and
at
such
other
places
as
her
duties
required
her
to
be.
Unlike
lay
members
of
her
Church,
the
appellant
could
be
authorized
by
the
United
Church
of
Canada
to
give
all
of
its
sacraments
to
its
members.
Judge
Goetz
of
this
Court
in
Small
and
McRae
v.
M.N.R.,
[1990]
2
C.T.C.
2286,
89
D.T.C.
663
at
page
2295
(D.T.C.
669)
examined
a
similar
matter
and
in
the
course
of
his
judgment
quoted
as
follows
from
a
judgment
of
Lord
MacDermott,
Walsh
v.
Lord
Advocate,
[1956]
3
All.
E.R.
129
(H.L.)
at
page
135:
In
my
opinion
the
words"a
regular
minister”
connote
a
class
which
forms
but
a
part
of
the
denomination
in
question
and
is
acknowledged
by
that
denomination
as
having
a
superior
and
distinct
standing
of
its
own
in
spiritual
matters.
.
.Lord
MacKintosh
puts
this
requirement
very
clearly
when,
speaking
of
the
“regular
minister”,
he
says:
.
.
.he
must
have
by
virtue
of
his
appointment
as
a
minister
what
might
be
called
"a
clergyman
status”
which
sets
him
apart
from
and
places
him
over
the
laity
of
his
denomination
in
spiritual
matters.
As
Goetz,
T.C.J.
stated
at
page
2295
(D.T.C.
670):
.
.
at
least
some
degree
of
appointment
must
be
conferred,
be
it
by
an
individual
congregation
or
an
aggregate
thereof,
to
act
as
a
minister.
In
the
instant
case,
that
degree
of
appointment
was
in
fact
conferred.
From
the
evidence
before
it,
the
Court
finds
that
the
appellant
was
a
regular
Minister
of
Wesley
United
Church
at
Regina,
Saskatchewan,
during
1986
and
1987.
The
appeal
is
allowed
and
the
matter
is
referred
to
the
Minister
of
National
Revenue
for
reconsideration
and
reassessment
accordingly.
The
appellant
is
awarded
her
party
and
party
costs.
Appeal
allowed.
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