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Citation: 2004TCC674
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Date: 20041006
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Docket: 2002-340(IT)I
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BETWEEN:
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REGINALD REIMER,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Miller, J.
[1] Mr. Reginald Reimer is an Official
Worker and career missionary of the Christian and Missionary
Alliance in Canada (CMAC). He was employed by the Evangelical
Fellowship of Canada (EFC) in full-time administrative service in
1996. For that year, he claimed a deduction in accordance with
paragraph 8(1)(c) of the Income Tax Act (the
Act) (commonly referred to as the clergyman's
residence deduction) in the amount of $13,200. The Respondent
denied the deduction on the basis that Mr. Reimer met neither the
status or the function test set out in paragraph 8(1)(c).
I find that Mr. Reimer did meet both the status and function
test.
Facts:
[2] The Appellant called as his
witnesses four current or retired members of the CMAC: Mr. David
Irwin, retired minister; Mr. David Freeman, Vice President
of Advancement for the CMAC; Dr. Arnold Cook, President of the
CMAC from 1992 to 2000; and Dr. Brian Stiller, President of
Tyndale University College and Seminary and President of the EFC
from 1983 to 1997. Each of these gentlemen personally knew Mr.
Reimer and gave evidence of their relationship. However, before
reviewing the specifics of Mr. Reimer's activities in 1996, I
shall, based on what I heard from these witnesses, describe in
general terms the structure and membership of the CMAC, and how
the CMAC is connected to the EFC and to the World Evangelical
Fellowship (WEF).
[3] The CMAC is a religious,
evangelical denomination. It recognizes three stages of
participation:
(i) accreditation;
(ii) licensing; and
(iii) ordination.
Individuals are first accredited or approved for placement,
though not yet placed. This requires the completion of formal
training at a Canadian bible college, Canadian theological
seminary or other Christian and Missionary Alliance Bible
Colleges or Seminaries. Only accredited individuals can become
licensed, which, for a missionary, requires further Bible School
studies as well as practical training. Training at a Bible
College covered both marriage and funeral services and
performance of sacraments generally.
[4] An individual is licensed as an
Official Worker, lay pastor, Christian Worker or Vocational
Worker. There are several categories of Official Worker, some of
whom are licensed by the national authority of the CMAC and some
of whom are licensed by the district authority of the CMAC. So,
for example, pastors and associates pastors of churches,
ministers of music and ministers in women's ministries are
licensed by a district, while missionaries and faculty of
officially related post-secondary educational institutions are
licensed at a national level. The missionary and pastor otherwise
go through the same licensing process. I note that the manual of
the CMAC states that women are eligible for a variety of
ministries with the exception of senior pastor and ordination.
The certificate of Christian Worker and Vocational Worker does
not include clergy privileges, which are included for the
Official Worker.
[5] Ordination requires further study,
though, according to Mr. Freeman, it is just confirmation that
the Church did the right thing in licensing this particular
individual as an Official Worker. He suggested that the rights
and privileges of an Official Worker and ordained individual are
the same; indeed, an Official Worker can perform all the same
functions as an ordained individual. The manual describes
ordination in the following terms:[1]
Ordination is the solemn observance whereby representatives of
the church corporate, together with the Elders representing the
local congregation, set apart and charge those men whom God has
called already and equipped for ministry, through the laying on
of hands and the offering of prayer for spiritual enduement.
Senior pastors are either ordained or going through the
ordination process.
[6] The CMAC is currently a member of
the EFC and was also a member in 1996. The EFC can best be
described as an umbrella organization for over 100 denominations
with the following mission:[2]
In order to promote Christian mission in life and society, the
Evangelical Fellowship of Canada is a national movement that
purposes to engage an increasingly inclusive participation of
evangelicals to accomplish together mission, ministry and
witness.
It is overseen by a council. The CMAC had representation on
the council as well as on the Executive Committee of the EFC. Dr.
Stiller, former president of the EFC, described evangelism as a
Protestant religious community on the renewal side, with a high
reliance on the Holy Scriptures, the divinity of Jesus Christ,
personal conversion and the responsibility to carry Jesus
Christ's deeds into the world.
[7] The EFC links to the rest of the
world through the WEF, the worldwide umbrella organization for
evangelical denominations.
[8] Mr. Reimer described the
missionary, the CMAC, the EFC and the WEF as an "organic
unity" in terms of their main beliefs, as well as
organizationally connected, given members of the CMAC sat on the
executive of both the EFC and the WEF.
[9] I turn now to the specifics of Mr.
Reimer's involvement with the CMAC. As indicated at the
outset, Mr. Reimer was an Official Worker and career missionary
of the CMAC. He has not been ordained in the CMAC. Mr. Reimer has
worked extensively as a missionary in South-east Asia.
[10] According to Dr. Stiller, issues were
surfacing in the mid-1990s for the WEF and a candidate was
required to assist the WEF. Mr. Reimer, with his relevant
missionary background in South-east Asia, was available to fill
this assignment, specifically as the Director of the Department
of Church and Society for the WEF. It is not clear how this
position for Mr. Reimer came to be. Dr. Stiller suggested
Mr. Reimer became an employee of the EFC to be seconded to this
role with the WEF in cooperation with the appointment by the
CMAC. Mr. Reimer was paid by the EFC. Dr. Stiller described the
assignment as consistent with the values of the EFC. In a memo of
January 21, 1994 Dr. Stiller wrote to the Executive
Committee as follows:[3]
Mr. Reginald Reimer has been assigned to serve the World
Evangelical Fellowship under the auspices of EFC.
His assignment to assist on the world scene flows out of, and
is consistent with, section four of our Mission Statement,
"Assist individuals and groups in proclaiming the Gospel and
advancing Christian values in our nation and around the
world".
EFC has as its purpose in this arrangement, to assist our
world body [of which we are a member]. Thus, EFC has designated
him, as a staff member to WEF. In this seconding role he will be
under the authority of EFC but with specific assignments as per
his job description. This ministry project of EFC will report to
our Executive Committee as do all other projects.
[11] Dr. Cook described the
"appointment" by the CMAC of Mr. Reimer to the EFC,
with an ongoing secondment to the WEF, as of some benefit to the
CMAC, to maintain the relationship with other churches of the
world, specifically in South-east Asia. He indicated that Mr.
Reimer did not report to the CMAC but to the EFC, who appointed
him along with the Church.
[12] Mr. Freeman described how
"appointment" works in the CMAC; for example, a local
church may interview a candidate for pastor and invite the
individual to be pastor: the CMAC then makes the appointment.
Similarly, with respect to other organizations, an organization,
such as the EFC, may approve and then invite an individual, who
is then appointed by the CMAC. Mr. Freeman indicated that in this
context Mr. Reimer was appointed to serve the EFC.
[13] There is no dispute Mr. Reimer's
function was in full-time administrative service. Mr. Reimer
reported to the EFC with respect to the WEF work, and the EFC
would report back to the CMAC. Mr. Reimer also described how he
maintained an accountability to the local church in which he was
rooted.
[14] As a missionary, Mr. Reimer's
primary focus had always been outside Canada. He had never been
asked to perform a marriage or funeral service in Canada, though
believed he was licensed as an Official Worker to do so, along
with communions and baptisms.
[15] The EFC and the WEF entered into an
Agency Agreement in August 1996 which stated in part:[4]
1. WEF agrees
that:
(a) it will continue
to devote all of its resources, and conduct all of its
activities, for the purpose of promoting, advancing and fostering
the historic, evangelical doctrines of the Christian faith and
Christian values;
(b) it will use all
funds received from EFC and other regional and national
evangelical fellowships and associate member bodies for such
purposes;
(c) in particular,
if EFC shall provide funding designed as support for any WEF
employee engaged in such activities, WEF shall apply such funds
toward the salary/benefits of such person, except when otherwise
specifically authorized by EFC.
Analysis
[16] There are two issues in this appeal:
one pertains to Mr. Reimer's status and the other pertains to
his function.
[17] Paragraph 8(1)(c) read as
follows for 1996:
8(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) 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
[18] With respect to status, there are two
elements in Mr. Reimer's case. First, is there a religious
denomination? Second, is Mr. Reimer a regular minister of the
religious denomination? There is no issue with respect to the
CMAC being a religious denomination - it is. The issue is whether
Mr. Reimer was, in 1996, a regular minister of the CMAC.
[19] With respect to function, again there
are two elements in Mr. Reimer's case. First, was he engaged
exclusively in full-time administrative service? The Respondent
admits that Mr. Reimer was so engaged in 1996. Second, was
Mr. Reimer appointed by the CMAC to that role?
Status
[20] The Respondent argues that Mr. Reimer
was not a regular minister of the CMAC in 1996 as, although he
was an Official Worker, the status of Official Worker does not,
in and of itself, bestow all the privileges of a regular
minister, such as performing all sacraments. The Respondent
reasoned that because women can be Official Workers, but cannot
become ordained, Official Worker status does not fall within the
definition of regular minister. I am not convinced.
Mr. Reimer underwent the same training as an Official Worker
who serves as a pastor, and can perform all the same functions.
Why is he not to be considered a regular minister because he
chose a missionary role, as opposed to a pastor, a minister of
music or superintendent role? All these individuals are Official
Workers, but are licensed for different purposes. All, however,
are intended to be in a full-time capacity in their chosen
ministry.
[21] Was Mr. Reimer, as a missionary of the
CMAC, a regular minister? It is helpful to consider some of the
case law in this regard. Firstly, it is unnecessary that an
individual be ordained to be considered a regular minister (see a
good summary in the case of Noseworthy v. The Queen,[5] which cited
Justice Rip in Hardy v. The Queen,[6] and Associate Chief Justice Bowman in
Austin v. The Queen[7]). What is most useful and telling is the practice of
the CMAC itself. It is clear from the testimony of all witnesses
that Official Workers with missionary status are set apart for
placement in ministry and are considered regular ministers.
[22] Mr. Reimer was not ordained but he was
certainly placed in the ministry of the Church in his role as a
career missionary. In the case of Hardy, Justice Rip
concluded that: "Without the authority to perform all the
sacraments or rites of her Church she cannot be said to be a
'regular' minister". Justice Rip did not state the
individual must perform all the sacraments, but was more
concerned with the authority to do so. Notwithstanding the
evidence suggested that women in the CMAC may not have such full
authority, and notwithstanding Mr. Reimer did not actually
perform all the sacraments in Canada, I find, based on the
testimony of the leaders of the Church, that Mr. Reimer had such
authority. He did not exercise it in Canada as his duties were
primarily overseas in the form of missionary work.
[23] Although in McGorman et al. v.
M.N.R.[8] Associate Chief Justice Bowman was dealing
with the issue of whether an organization was a religious order,
once he found that it was, he had no hesitation in finding a
missionary with such an order qualified for the deduction. I
recognize that the issue of status in this case is framed in
terms of "a regular minister of a religious
denomination", as opposed to a "member of a religious
order", but I have difficulty denying a missionary of a
religious denomination the qualifying status, if a missionary of
a religious order qualifies, even though the former must meet
some higher standard of a "regular minister" and not
just a "member". I am swayed by the evidence of the
Church leaders that, in the CMAC, the licensing of a man as an
Official Worker is akin to the designating of a minister in other
denominations. I find Mr. Reimer meets the status
requirement.
Function
[24] As indicated earlier, the issue with
respect to function is whether Mr. Reimer was appointed by
the CMAC to his role with the EFC, working with the WEF. The
Respondent does not deny the CMAC was involved in
Mr. Reimer's getting the full-time administrative
position, but objects to its being viewed as an
"appointment". On occasion, judges, lawyers and
administrators of the tax system engage in interpretative hair
splitting that leaves taxpayers scratching what little hair they
have left on their collective head. Mr. Reimer may have been
recommended, commended, designated, placed, selected, allotted,
chosen, nominated, seconded or positioned - but was he
appointed?
[25] What exactly does appointment entail?
In the case of Fitch et al. v. The Queen,[9] Associate Chief Justice Bowman
was clear that a religious denomination can appoint to another
organization. Justice Bowman elaborated in considerable
detail the connection between the appointing denomination and the
recipient organization and concluded that one was "an
integral part" of the other. Justice Bowman again raised
this requirement of a connection between the denomination
appointing and the recipient organization in Kraft et al. v.
M.N.R.,[10]
where he indicated at paragraph 44:
I do not think that Mr. Nielsen meets the function test
because the administrative service performed by him was not
"by appointment of a religious denomination". There is
an insufficient nexus between his religious denomination and his
appointment to do administrative work by Intercom.
Is there sufficient connection between the CMAC, the
denomination, and the EFC, the entity employing Mr. Reimer? The
situation is murky as the full-time administrative position was
with the WEF pursuant to what was described as the secondment
from the EFC. Should then the nexus extend further to the WEF?
There is not the same intimate relationship amongst the three
organizations as there was between the two organizations in the
Fitch case. While it cannot be said that the CMAC is an
integral part of the EFC or the WEF or vice versa, there is
definitely a connection. The CMAC is a member of the EFC, an
umbrella organization, and clearly had some influence in that
organization given the standing of the CMAC officers on the
executive of the EFC. Similarly, the EFC was a member of the
world organization, the WEF. These organizations shared the
beliefs and mission of evangelism.
[26] There is a further connection between
the EFC and the WEF beyond the simple organizational structure of
one being an umbrella organization for the other; there was the
Agency Agreement of August 15, 1996. This was tendered as
evidence of the arrangement pursuant to which Mr. Reimer was
seconded to the WEF from the EFC. From a review of paragraphs
(a), (b) and (c) of the Agency Agreement (see paragraph 15 of
these reasons), it appears that the EFC, by providing the funding
for Mr. Reimer to be the Director of Church and Society for the
WEF, could demand that the WEF use the funds for that purpose. In
effect, the WEF could not decline the services of Mr. Reimer. I
find this would constitute sufficient nexus to find the placement
by the EFC of Mr. Reimer with the WEF amounted to an
appointment. However, the EFC is not the religious denomination -
the CMAC is. I must, therefore, explore the nexus between the
CMAC and the EFC. There is certainly a connection between the
two: the EFC is the umbrella organization, the two organizations
share the same beliefs, and there are opportunities for members
of the CMAC to serve on the executive of the EFC. But the
connection, or nexus, must be something more; it must be one
whereby the denomination's choice of an individual to serve
the other organization must be paramount. Appointment by a
denomination means it is the denomination's call. This does
distinguish the appointment from the recommendation, which
implies the right of the recipient organization to reject the
recommendation. An appointment is final.
[27] The actual specifics surrounding Mr.
Reimer's being put in the position of Director of Church and
Society for the WEF, albeit as an employee of the EFC, are just
not clear. There was no appointment letter as such, though there
was the January 21 memo from Dr. Stiller to the Executive
Committee indicating that: "Mr. Reimer has been assigned to
serve the WEF under the auspices of the EFC". The memo does
not mention how Mr. Reimer came from the CMAC.
[28] My impression is that the evangelical
community of the CMAC, the EFC and the WEF involved individuals
who knew one another and worked together. Dr. Stiller, as
President of the EFC, testified that Mr. Reimer was available and
that he agreed to receive Mr. Reimer's appointment from the
CMAC. But it was the CMAC that made the placement. After the CMAC
made the appointment, would the EFC have said "no, we do not
want Mr. Reimer to fill this position"? No, because the EFC
and the CMAC were jointly involved in the process of getting Mr.
Reimer. Mr. Reimer was an Official Worker of the CMAC. It
was for the CMAC to appoint Mr. Reimer. The EFC might say it
wanted Mr. Reimer, but without the CMAC making the
appointment, Mr. Reimer would not have been the Director of
Church and Society. I conclude that there was sufficient nexus
between the CMAC and the EFC. The circumstances were such that
Mr. Reimer obtained his full-time administrative position as a
result of the appointment by the CMAC, a religious
denomination.
[29] For these reasons, I allow the
appeal.
Signed at Ottawa, Canada, this 6th day of October, 2004.
Miller J.
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