Docket: 2010-3808(CPP)
BETWEEN:
NUCLEAR WASTE MANAGEMENT ORGANIZATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
____________________________________________________________________
Appeal
heard on April 26, 2012 at Toronto, Ontario
Before: The Honourable
Justice J.E. Hershfield
Appearances:
|
Counsel for the Appellant:
|
Dominic
C. Belley
Patrick Moran
|
|
Counsel for the Respondent:
|
Thang Trieu
|
____________________________________________________________________
JUDGMENT
The
appeal is dismissed, without costs, and the decisions of the Minister of
National Revenue are confirmed, in
accordance with and for the reasons set out in the attached Reasons for
Judgment.
Signed
at Ottawa, Canada this 18th day of June 2012.
"J.E. Hershfield"
Citation: 2012 TCC 217
Date: 20120618
Docket: 2010-3808(CPP)
BETWEEN:
NUCLEAR WASTE MANAGEMENT ORGANIZATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Hershfield J.
[1] This is an appeal by
Nuclear Waste Management Organization (the “NWMO”), a corporation constituted
pursuant to the Nuclear Fuel Waste Act
and Part II of the Canada Corporations Act, against decisions of the Minister of
National Revenue (the “Minister”).
[2] The decisions of the
Minister being appealed confirmed rulings that members of the Appellant’s
Advisory Council were in the tenure of an office and therefore were in
pensionable employment pursuant to paragraph 6(1)(a) of the Canada
Pension Plan (the “Plan”).
[3] The Appellant contends that
the Advisory Council members did not hold an office with the Appellant and that
there was no employment relationship between the Appellant and the Advisory
Council members.
[4] The persons affected by the
Minister’s rulings of the employment status of members of the Appellant’s
Advisory committee are:
|
Advisory Council members affected by the
ruling
|
Relevant Periods
|
|
Helen C. Cooper
|
January 1, 2005 to December 31, 2007
|
|
David Cameron
|
January 1, 2006 to December 31, 2009
|
|
Marlyn Cook
|
January 1, 2008 to December 31, 2009
|
|
Frederick Gilbert
|
January 1, 2006 to December 31, 2009
|
|
Rudyard Griffith
|
January 1, 2008 to December 31, 2009
|
|
Donald Obonsawin
|
January 1, 2006 to December 31, 2009
|
Background
[5] The background facts set
out in the Appellant’s Amended Notice of Appeal are attached to these Reasons
as Appendix 1 and the background assumptions of fact relied on by the Minister
are attached to these Reasons as Appendix 2.
[6] In general terms, the
factual background described in the pleadings and relied on by each of the
parties are not materially different. Indeed, no witnesses were called at the
hearing and counsel for each party acknowledged that the facts relied on by the
other were in all material respects admitted.
Issues
[7] The sole basis for the
Minister’s confirmation of the rulings that the members of the Advisory Council
were engaged in pensionable employment is the definition of employment in
subsection 2(1) of the Plan which provides as follows:
“employment” means the state of being
employed under an express or implied contract of service or apprenticeship, and
includes the tenure of an office; [Emphasis Added.]
[8] Further the term “office”
is defined in subsection 2(1) of the Plan as follows:
“office” means the position of an
individual entitling him to a fixed or ascertainable stipend or remuneration
and includes a judicial office, the office of a minister of the Crown, the
office of a lieutenant governor, the office of a member of the Senate or House
of Commons, a member of a legislative assembly or a member of a legislative or
executive council and any other office the incumbent of which is elected by
popular vote or is elected or appointed in a representative capacity, and also
includes the position of a corporation director, and “officer” means a person
holding such an office;
[9] The sole issue then in this
appeal is whether or not the members of the Appellant’s Advisory Council held
an office during the relevant periods.
Facts and Submissions
[10] Perhaps the most important
fact upon which the Respondent relies is the method of compensation which is
set out in paragraphs 9 (u) and (v) of the Reply to the Notice of Appeal (the
“Reply”). They provide for the remuneration to be paid to the members of the Advisory
Council. Such remuneration is as follows:
…
(u)
the Appellant paid
members of the Advisory Council $10,000 per year – […] – on a quarterly basis;
(v)
the Appellant paid
members of the Advisory Council a per diem of $850 – […] – for each day the
member attended a meeting of the Advisory Council; and
…
[11] Essentially, the
Respondent’s argument comes down to the assertion that the Advisory Council
members were entitled to a fixed or ascertainable stipend or remuneration and
therefore by definition held an “office” pursuant to subsection 2(1) of the Plan
and thereby fell within the definition of “employment” pursuant to that same
subsection.
[12] The Appellant submitted two
books of documents including the appointment instruments, schedules, agendas and
minutes of meetings of the Advisory Council and the Triennial Report of the
NWMO for the period 2008 to 2010 (the “Report”).
[13] The appointment letters and
schedules, agendas and minutes of meetings of the Advisory Council confirm that
the Council members were expected to meet three to six times a year, that the
number of times the Council met during the period in question varied between
four and seven and that not all members attended all meetings.
[14] The Appellant argues that
since the number of Advisory Council meetings varies and its members do not
attend all meetings and since a portion of their remuneration is based on the
number of meetings attended, their remuneration, which is just an honorarium,
is neither fixed nor ascertainable and therefore not remuneration contemplated
in the definition of “office”. Clearly, this position is contrary to the recent
decisions of M.N.R. v. The Queen in Right of Ontario and M.N.R. v. Real Estate Council
of Alberta,
where the Federal Court of Appeal unequivocally ruled that remuneration
which is fixed in hourly or per diem amounts is “fixed or
ascertainable”, even if the number of hours or days for which the office holder
will be paid is uncertain. In light of these cases, the decisions relied on by
the Appellant are no longer authoritative.
[15] Other submissions made by
the Appellant require my setting out briefly additional facts. They are not in any material way
different from the facts set out and relied upon in Appendix 1:
·
the
Appellant is a non-profit corporation established by Canada’s nuclear
electricity producers in accordance with the Nuclear Fuel Waste Act to
provide recommendations on the long-term management of used nuclear fuel;
·
the
Appellant recommended an approach known as Adoptive Phased Management. The
Appellant is responsible for its implementation. That is, it is responsible for
the long-term management of Canada’s used nuclear fuels;
·
the
Appellant provides annual reports to the Minister of Natural Resources and every three years the report (“the
Triennial Report”) must include a strategic plan and budget forecast for the
next five years.
The Advisory Council is tasked with examining and commenting on the triennial
reports;
·
the
Appellant established the Advisory Council and appoints its members in
accordance with the Nuclear Fuel Waste Act which sets out the
requirement for its composition to reflect a broad range of expertise related
to the management of nuclear fuel waste and nuclear energy matters as well
being knowledgeable in public affairs, other social sciences and traditional
aboriginal matters. It must include nominees from local and regional governments
and aboriginal organizations which are affected by the organization’s
activities;
·
The
Advisory Council, holds its own meetings, comments on the Appellant’s plans and
budgets, meets regularly with the Appellant to observe, follow and report on the
Appellant’s activities and provides guidance and ongoing advice on proposed
approaches for managing nuclear waste;
·
The
Advisory Council is distinct from the Appellant’s Board of Directors who manage
the affairs of the Appellant; and
·
The
Advisory Council has no decision making authority; it gives advice and makes
recommendations, neither of which have to be followed.
[16] The Appellant argues that
the Advisory Council members are volunteers receiving an honorarium who do not
fit in with the list of persons enumerated in the definition of “office”. The
Appellant contends that the list is specific in its inclusion of elected or
appointed persons in an authoritative governance position or public service
role and cannot be taken to include persons in a mere advisory capacity.
[17] Appellant’s counsel
referred me to several authorities on statutory construction that might readily
be found to support his argument. One
of the more compelling references was to Louis-Philippe Pigeon’s “Drafting and
Interpreting Legislation” where under the heading “Defining By Enumeration” he
mentions not only the ejusdem generis rule but also the expressio
unius est exclusio alterius rule. The latter takes on some life when viewed
in the light of comments made at a meeting of the Special Joint Committee of
the Senate and of the House of Commons as recorded in the Minutes of
Proceedings and Evidence, No. 2, Tuesday, December 1, 1964.
[18] At that meeting Mr. Thorson
(the then Assistant Deputy Minister of Justice) explained the difference
between the definition of “office” in the Unemployment Insurance Act (as
it then was) and its corresponding definition in the taxing statutes
(presumably the Income Tax Act) was that in the former there is no
mention of the office of Governor General. Mr. Thorson went on to say at page
117: “The office of Governor General therefore will not be regarded as being
included as pensionable employment.” This suggests that Parliament intended the
expressio unius est exclusio alterius rule to apply to the provision
under scrutiny here.
[19] Appellant’s counsel reasons
that if I find the Advisory Council members to be engaged in pensionable
employment, then I must find the Governor General to be so engaged. Applying
the expressio unius est exclusio alterius rule to one position requires
me to apply it to others, or, not applying it to one, requires that I not apply
it to others. Needless to say, he wants me to apply that rule.
[20] While I compliment counsel
for his excellent research and well-crafted argument, I am not inclined to
purport to make a finding here that impacts on the Governor General. He is not
here to make representations. The question of his engagement status for CPP
purposes is not before me.
[21] Nonetheless, it strikes me
that while the definition of “office” may reflect a less than precise drafting
style, it does not invite the construction advanced by the Appellant.
[22] The definition of the term
“office” starts off with the word “means”. Generally, if a definition is
introduced by the word “means” then that which is enumerated is exhaustive. On
the other hand, if a definition is introduced by the word “includes” it is
simply illustrating examples and an enumerating list is not exhaustive.
[23] The problem with the
definition of “officer” here is that it uses both terms “means” and “includes”.
There are two different components to the definition of an officer. The first
component is far reaching and broad but is exhaustive in terms of the criterion
for inclusion: “a position of an individual entitling him to a fixed or
ascertainable stipend or remuneration”. Under that definition the Advisory
Council members hold an “office”. While, generally at least, that might be the
end of the construction exercise, we are faced with a further, more specific, type
of position that Parliament seemingly meant to be applied using the expressio
unius est exclusio alterius rule.
[24] The inclusion in the
definition of “office” of this more specific group, limited in its membership
to those expressly enumerated, appears to be redundant since its members appear
to fall into the broader group embraced by the first part of that definition.
However, the presumption against tautology dictates that their secondary
inclusion cannot be seen as redundant.
To eliminate the redundancy, the more specific group, a special public service
group, must, by virtue of special mention, be seen as effectively divorced from
the broadly defined group and brought back in as, and only as, specifically
included in that special public service group. Hence, the Governor General is
carved out because that position is not included in the list of “offices”
within the additional group. This result is achieved by applying the limiting ejusdem
generis rule to the list but not to the broader group that precedes it.
[25] One might also find support
for this construction under the microscope of the noscitur a sociis or associated meaning rule of
construction.
There is something about the “colour” of the enumerated list that strikes me as
narrowing the broader definition of “office” in respect of a particular category
of person without undermining the broadness of the broader definition in
respect of persons not in that particular category.
[26] Lest this reasoning appears
too tortured, I suggest that this special public service group is simply added
for greater certainty to include specific persons that due to their public
service or somewhat unique way of attaining their position may have been seen as
falling outside the initial broad definition of “office”. This conclusion is in
conformity with giving the words “means” and “includes” used in sequence their
ordinary meaning. Regardless, the effect is the same – the Advisory Council
members hold an “office”.
[27] Having said that, I note
that a suggestion was also made that the Advisory Council members did not have
or occupy a “position” which is a pre-requisite in the definition of “office”.
No authority was cited for this proposition.
[28] The simplest meaning of
“position” in the context of the definition of “office” is that found in The
Living Webster Encyclopedic Dictionary of the English Language where it is defined as a “post or
job”. Similarly, the Oxford English Dictionary defines “position” as “A
post as an employee; a paid office, a job.”
“Post” in turn is defined as “a position of duty, employment or trust, to which
one is assigned or appointed.” Other
meanings of “position” ascribed in The Canadian Oxford Dictionary speak
of “paid employment”. Since defining “office” in terms of employment begs the
question, the definition or meaning that seems most appropriate is: a position
of duty to which one is assigned or appointed. That is, I conclude that the
word “position” in the context of the subject section is a “post” in respect of
which duties have been assigned by virtue of an appointment. In any event, I
have little doubt that the Advisory Council members occupy a “position” in
performing the role they were appointed to perform.
[29] It also needs to be
mentioned that the Appellant’s counsel took me through various enactments in
the attempt to persuade me that a purposive construction of the definition of “office”
in the Plan would require my finding that the Advisory Council members
were not meant to be included as persons having a role that made them persons
having pensionable employment. The argument is rooted, however, in the fact that
the role played by the Advisory Council members was not similar to that of the
listed inclusions in the definition of “office”. The enumerated positions were
descriptive of persons such as judges, Ministers of government departments and
corporate directors who all have real authority. That is, their “office”
reflects an “officer” as a person with authority. The Advisory Council members
do not enjoy any authority.
[30] With respect, that
argument, even coupled with capable submissions on the difficulties of working
with words such as “means” and “includes” does not persuade me to find in
favour of the Appellant.
[31] The Advisory Council
members have a role to perform and receive remuneration for performance of that
role. I am satisfied that in their appointed position, being entitled to such
remuneration, they enjoyed the tenure of an office. They were, therefore,
engaged in pensionable employment throughout the subject periods.
[33] In Guyard v. M.N.R., Angers J. at paragraphs 27
to 32 provides an analysis of the concept of “continuity and permanence of
office” as discussed in Guérin
and MacKeen.
At paragraph 33 of his judgment, Justice Angers concludes, consistent with the
previous case law, that what matters is that an office must exist independently
of their incumbents. Unlike the facts in Guyard where the position in
question was set up for a temporary duration, the Advisory Council in the
present case is tasked with reviewing and commenting on triennial reports on an
ongoing basis. Given the very long lifespan of nuclear waste, absent
legislative intervention to remove the Advisory Council, the “office” held by
its members is of a very permanent nature.
[34] As an addendum or corollary
to that aspect of the meaning of “office”, it can be said that the duration of
the term that a particular person occupies or holds it, should not, as a
general rule at least, be relevant to either the determination of whether an
office exists or whether the holder of it has the “tenure of an office”. Still,
as a finder of fact, I note that one assumption in the Reply that I have not
mentioned (see Appendix 2) is that the Advisory Council members were appointed for
a four year term with the possibility of reappointment.
[35] While I may be bound to
accept that as an admitted fact, I note that the appointment letters included
in the Agreed Book of Documents do not mention a term. The Respondent’s
assumption seems to derive from 2006 letters to each member of the Advisory
Council reminding them of a recent meeting where it was discussed that their
appointment in 2002 was for a four year term. The letters also seek
confirmation of the extension of their term through to June 30, 2007.
[38] Accordingly, for
all these reasons, the appeal is dismissed, without costs.
Signed at Ottawa, Canada this 18th
day of June 2012.
"J.E. Hershfield"
Appendix 1
Material Facts Relied Upon
Background about the
Appellant
1.
The Appellant was established in
2002 by Canada’s nuclear electricity producers in accordance with the Nuclear
Fuel Waste Act to assume responsibility for the long-term management of
Canada’s used nuclear fuel.
2.
The organization operates on a
not-for-profit basis.
3.
The Nuclear Fuel Waste Act
required the Appellant to provide recommendations to the Government of Canada
on the long-term management of used nuclear fuel, based on a three year study
and public consultation process.
4.
The Appellant initiated this study
in 2002 and in 2005, submitted to the Minister of Natural Resources the results
of the study and public consultation along with its recommendation for an
approach.
5.
In June 2007, the Government of
Canada, authorized by the Nuclear Fuel Waste Act to decide on a management
approach, selected the Appellant’s recommended approach, known as “Adaptive
Phased Management”.
6.
Under the Nuclear Fuel Waste
Act, the Appellant is now responsible for implementing Adaptive Phased
Management, subject to all necessary regulatory approvals.
7.
The Nuclear Fuel Waste Act
requires the Appellant to make annual reports to the Minister of Natural
Resources. Every three years, the annual report must include comments made by
the Advisor Council on the Appellant’s work (the Triennial report).
The Appellant’s Advisory Council
8.
Section 8 of the Nuclear Fuel
Waste Act specifically required the Appellant to create an Advisory
Council:
8.(1)
The waste management organization shall create an Advisory Council, which shall
(a) examine
the study referred to in subsection 12(1) and the triennial reports referred to
in section 18 that are to be submitted to the Minister; and
(b) give
written comments on that study and those reports to the waste management
organization.
(2) The
members of the Advisory Council shall be appointed by the governing body of the
waste management organization. The governing body shall make all reasonable
efforts to ensure that the Advisory Council’s membership
(a) reflects
a broad range of scientific and technical disciplines related to the management
of nuclear fuel waste;
(b)
reflects expertise, in matters of nuclear energy,
(i)
in public affairs, and
(ii) as
needed, in other social sciences;
(b.1)reflects
expertise in traditional aboriginal knowledge; and
(c) includes
representatives nominated by local and regional governments and aboriginal
organizations that are affected because their economic region is specified for
the approach that the Governor in Council selects under section 15 or approves
under subsection 20(5).
9.
As required by the Nuclear Fuel
Waste Act, the Appellant’s Board of Directors established an Advisory
Council in 2002.
10.
The Advisory Council is authorized
by the Nuclear Fuel Waste Act to comment every three years on the
previous three years’ of the Appellant’s activities. The Advisory Council also
comments on the Appellant’s five-year plans and budget forecasts.
11.
These independent statements,
which include observations on the results of the Appellant’s public
consultations and analysis of any significant socio-economic effects of the
Appellant’s activities, are published in the Appellant’s Triennial reports. The
first such Triennial report will be issued for the year 2010.
12.
The Advisory Council meets
regularly with the Appellant, following closely the development of the
organization’s plans and activities and providing ongoing advice.
13.
Typically, the Advisory Council
will hold approximately four meetings per year.
14.
Agendas for these meetings are set
by the Advisory Council and incorporate areas of interest which members
themselves have identified as topics for discussion.
15.
The Advisory Council produces its
own minutes of their meeting, which are made available to the public on the
Appellant’s website.
16.
The Advisory Council is distinct
from the Appellant’s Board of Directors, which manages the affairs of the
organization as required by law.
17.
Essentially, the Advisory Council
is a statutorily-mandated peer review group that provides the Appellant with
independent advice on its efforts to find a long-term solution to manage
Canada’s used nuclear fuel, but it has no decision-making authority and its
recommendations are not binding on the Appellant.
18.
Membership on the Advisory Council
is voluntary; members are invited to participate by the Appellant’s Board of
Directors.
19.
Advisory Council members have a
diverse background in government, education, public service, aboriginal
affairs, engineering, environmental sustainability and the not-for-profit
sector.
20.
The Appellant pays Advisory
Council members an honorarium for their participation.
Appendix 2
Assumptions
1.
In determining the Workers were
employed in pensionable employment by the Appellant during the Period, the
Minister made the following assumptions of fact:
Background
– General
(a)
the Appellant is a non-profit
organization established in 2002 by Canada’s nuclear electricity producers in
accordance with the Nuclear Fuel Waste Act (the “NFWA”);
(b)
the Appellant was responsible for
the long-term management of Canada’s used nuclear fuel;
(c)
the NFWA required the
Appellant to provide recommendations to the Government of Canada on the
long-term management of used nuclear fuel;
(d)
the Appellant was required under
the NFWA to make annual reports to the Minister of Natural Resources and
triennial reports to the Governor in Council;
Advisory
Council
(e)
the Appellant’s Board of Directors
established an Advisory Council in 2002, as required under the NFWA;
(f)
the Advisory Council provided
general guidance and advice to the Appellant on proposed approaches for the
management of nuclear fuel waste, particularly relating to public and
stakeholder consultations;
(g)
the Advisory Council was required
to observe and report on the Appellant’s activities;
The Workers
(h)
the Workers were members of the
Advisory Council;
(i)
members of the Advisory Council
were appointed by the governing body of the Appellant, as required under the NFWA;
(j)
the Appellant’s Board of Directors
was responsible for ensuring that the members of the Advisory Council
represented certain disciplines and expertise and stakeholders, as required
under the NFWA;
(k)
the Workers signed acceptances of
appointment;
(l)
the Workers were engaged by the
Appellant for a four-year term, with the possibility of re-appointment;
(m)
the Advisory Council met regularly
with the Appellant, closely followed the development of the Appellant’s plans
and activities, and provided ongoing counsel and advice;
(n)
the Advisory Council held three to
six meetings each year;
(o)
the Advisory Council set the
meeting agendas;
(p)
the Advisory Council meetings were
usually conducted at the Appellant’s offices;
(q)
based on their availability, the
Workers decided whether or not to attend the Advisory Council meetings;
(r)
the Workers could participate in
the meetings in person or by conference call;
(s)
the Appellant did not supervise
the Advisory Council or the Workers;
(t)
the Advisory Council submitted
written reports to the Appellant;
(u)
the Appellant paid members of the
Advisory Council $10,000 per year – except the Chair who was paid $15,000 per
year – on a quarterly basis;
(v)
the Appellant paid members of the
Advisory Council a per diem of $850 – except the Chair who was paid $1,000 –
for each day the member attended a meeting of the Advisory Council; and
(w)
the Appellant reimbursed the
Workers for travel expenses related to the Advisory Council and the Appellant’s
Board meetings.
CITATION: 2012 TCC 217
COURT FILE NO.: 2010-3808(CPP)
STYLE OF CAUSE: NUCLEAR WASTE MANAGEMENT ORGANIZATION AND M.N.R.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 26, 2012
REASONS FOR JUDGMENT BY: The
Honourable Justice J.E. Hershfield
DATE OF JUDGMENT: June 18, 2012
APPEARANCES:
|
Counsel for the
Appellant:
|
Dominic C. Belley
Patrick Moran
|
|
Counsel for the
Respondent:
|
Thang Trieu
|
COUNSEL OF RECORD:
For the Appellant:
Name: Dominic C. Belley
Firm: Norton
Rose Canada LLP
1,
Place Ville-Marie, Suite 2500
Montreal,
QC, H3B 1R1
Name: Patrick
Moran, General Counsel
Firm: Nuclear
Waste Management Organization
22
St. Clair Ave., 6th Floor
Toronto,
Ontario, M4T 2S3
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
The omitted portion relates to the chair who was not assessed due to his age
disqualifying him from having pensionable employment.
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