Date: 19990413
Docket: 98-981-IT-I
BETWEEN:
MARGARET M. NOSEWORTHY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
Hamlyn, J.T.C.C.
[1] This appeal arises from a Notice of Reassessment dated
December 22, 1997, in which the Minister of National Revenue
(the "Minister") denied the clergyman's residence
deduction claimed by the Appellant in the 1996 taxation year,
pursuant to paragraph 8(1)(c) of the Income Tax
Act (the "Act"). In response, the Appellant
filed a Notice of Objection. The reassessment was later confirmed
by the Minister via a Notice of Confirmation dated
February 23, 1998.
[2] During the 1996 taxation year, the Appellant held the
position of Interfaith Chaplain of the Nova Institution for
Women, in Truro, Nova Scotia. She states that she was appointed
and commissioned for this position by the Roman Catholic
Archdiocese of Halifax. In this position, amongst other things,
the Appellant conducted regular Sunday and holiday worship
services, memorial and special prayer services. Further, the
Appellant was called upon to offer sacramental and pastoral care
to the inmates.
[3] The Appellant possesses extensive education and experience
to qualify her for the position of interfaith chaplain including
university bachelor of arts and bachelor of educational degrees,
a master's degree in Divinity and a master's degree in
Religious Education. The Appellant has been certified as a
specialist practitioner in pastoral care or counselling by the
Canadian Association for Pastoral Practice and Education and is a
Clinical Member of the American Association of Individual,
Marriage and Family Therapists.
[4] She also has held several other chaplain positions within
the justice and correction systems in Ontario. At present, the
Appellant is the Roman Catholic chaplain at the Springhill penal
institution in Nova Scotia.
[5] Her appointment as interfaith chaplain at the Nova
Institution for Women arose as a result of a contractual
relationship between Her Majesty The Queen in the right of Canada
and the Roman Catholic Episcopal Corporation of Halifax to
provide services to Nova Institution for Women. The Interfaith
Committee on Chaplaincy in The Correctional Service of Canada
(hereinafter called "CSC") prescribed the criteria for
appointment and conducted the search for the interfaith
chaplain.
[6] One of the primary qualifications for interfaith chaplains
was ecclesiastical status that is endorsement by the
ecclesiastical authority to do the work of the chaplain.
[7] After the Appellant's selection as an interfaith
chaplain candidate the Roman Catholic Archbishop of Halifax
confirmed her appointment to the position of chaplain. In the
confirmation of appointment letter (exhibit A-1, tab 3)
the Archbishop states:
As Chaplain, you are entrusted with the pastoral care of the
population of the Truro Federal Correctional Institution for
Women. You are also authorized to offer a reflection and
instruction on the Word of God during the Sunday celebration of
the Eucharist and at other celebrations as required.
[8] The Archbishop goes on to say in relation to work related
benefits:
The Archdiocese has a benefit package that includes long term
disability, medical and pension benefits.
[9] The Archbishop in this letter refers to information he
received from Fr. Bernard Pinet, O.M.I.
[10] Exhibit A-1, tab 4 is a post-appointment letter
signed by Rev. Bernard Pinet, O.M.I., Canadian Conference of
Catholic Bishops' representative on the Interfaith Committee
on Chaplaincy. In that letter he states:
... Margaret (Peg) Noseworthy is a Roman Catholic Chaplain
regularly serving as a minister of religion at Nova Institution
for Women, August 1995-1998 ...
Margaret (Peg) Noseworthy has been duly appointed by the
Correctional Service of Canada and the Interfaith Committee ...
She is also authorized under a letter of ecclesiastical authority
by the local diocese.
[11] Exhibit A-1, tab 2 is a letter
(November 21, 1997), from John K. O'Donnell, Director of
Administration, Catholic Pastoral Centre Archdiocese of Halifax
to Revenue Canada who states:
... Ms. Margaret Noseworthy has been working full-time as a
regular minister in the service of the Archdiocese of Halifax
since August, 1995. ...
[12] Two witnesses were called by the Appellant, John
O'Donnell, the author of the above-noted letter, and the
Appellant, Margaret Noseworthy, the Nova Institution for Women
Roman Catholic Chaplain.
[13] Mr. O'Donnell advised that the Appellant was an
employee of the archdiocese and that the CSC funded her
employment one year at a time. The employment was considered to
be permanent employment with entitlement to health and pension
benefits. He further advised that the provision of prison
chaplains was not contingent on funding from CSC. He said the
archdiocese could seek other means to fund the chaplaincy if CSC
funding was lost.
[14] He stated that he viewed the Appellant as a regular
minister of the Roman Catholic Church. She carries a significant
responsibility that sets her apart from the other laity in the
Roman Catholic Church and he emphasized that her appointment from
the Archbishop with its prescribed duties confirms this
conclusion. He considered the distribution of Communion to the
inmates as part of providing one of the Church's sacraments.
While she could not consecrate the Communion she received the
consecrated Communion and carried-on from there in terms of
distribution.
[15] He indicated that the role of a chaplain within the Roman
Catholic Church as performed by the laity instead of a priest, is
directly related to the decline in the Roman Catholic priest
population. The Church has developed this procedure because, as
he stated, "the Church must go on".
[16] Ms. Noseworthy outlined her extensive educational
background and work experience leading to her appointment to the
Nova Institution for Women. She indicated that she sees herself
as a minister and that she has, within the Roman Catholic Church,
ecclesiastical authority to minister.
[17] The Appellant stated that from the Church's point of
view she is not a member of the clergy but she stated that from a
reality point of view, and also from the Church's point of
view, she is the regular minister to the confined inmates of the
Nova Institution for Women 100% of the time and that with
ecclesiastical backing from the Archbishop she had the
authoritative right to provide pastoral care to all members of
prison population.
[18] Specifically, the Appellant, on a continuing and regular
basis in terms of worship and sacrament, offered and led worship
services on Sunday, including opening prayers, penitential
rights, prayers of the faithful, prayer of confession, liturgy on
the Word including reflection and instruction on the Word,
prayers on behalf of the Church, prayers on behalf of the
congregation, a rite of thanksgiving, the distribution of
Communion and a benediction and closing.
[19] In relation to other duties, she also offered pastoral
care, counselling and mediation as a part of crisis intervention
when required. She was on call 24 hours a day and mandated
to respond to emergency and crisis situations. In particular, she
counselled inmates who found themselves in dissociation or
segregation or in hospital. She also performed committal,
memorial or other services as needed.[1]
[20] It is clear from the role of the Appellant she was the
spiritual leader within the institution. Within her mandate, she
decided what and how the work was to be done. Her appointment was
all encompassing and was not limited as to time. She was always
present and seen within the institution.
[21] In her relationship with Roman Catholic
"clergy" while she distinguished herself on the basis
of ordination and canon law, she confirmed she was treated by the
clergy as a minister to the incarcerated group of people with the
ecclesiastical authority to minister. She said she was seen as a
peer and she liased with them on a collegial basis.
ISSUE
[22] Is the Appellant a "regular minister of a religious
denomination" for the purposes of
paragraph 8(1)(c) of the Act?
ANALYSIS
[23] Paragraph 8(1)(c) of the Act reads as
follows:
8.(1) In computing a taxpayer's income for a taxation year
form an office or employment, there may be deducted such of the
following amounts as are wholly applicable to that source of such
part of the following amounts as may be 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 ....
[24] For the purposes of this hearing the counsel for the
Respondent at the outset advised the Court only the status
qualification was in dispute.
[25] Thus, the evidence and argument in the hearing as it
developed was focussed specifically on whether the Appellant
was:
... a regular minister of a religious denomination ...
REGULAR MINISTER OF A RELIGIOUS DENOMINATION
[26] The primary basis of the Minister's denial of the
clergyman's residence deduction is that the Appellant is not
an ordained member of the clergy of the Roman Catholic religion
and not a regular minister of the Roman Catholic Church.
[27] The meaning of "regular minister of a religious
denomination" and "member of the clergy" has been
judicially considered a number of times by this Court. Hardy
v. R., [1998] 2 C.T.C. 2013 (T.C.C.), was decided
based on facts that have some similarities with those in the
instant case. Ms. Hardy, the Appellant, was a Lay Pastoral
Minister appointed by the Bishop of London of the Roman Catholic
Church. She was responsible for assisting with the distribution
of Holy Communion at mass and taking Communion to the sick and
shut-ins of the parish. She was also authorized to conduct
funerals and could perform marriages with the permission of the
Bishop. The Court found that the Pastor of her parish held
greater responsibilities, as he was responsible for the
administration of the parish and could lead Mass and hear
confessions. Based on this and the finding that her religion does
not ordain women, Rip J. concluded that the Appellant was
not a "member of the clergy".
[28] Rip J. then continued to examine if she was a
regular minister of the Roman Catholic Church. He considered and
quoted the decision of Greenless v. Canada (Attorney
General), [1945] O.R. 411 (Ont. H.C.), aff'd
[1946] O.R. 90 (Ont. C.A.), leave to appeal refused
[1946] S.C.R. 462, wherein Hogg J. referred to a
decision of the High Court of Justiciary of Scotland in
Saltmarsh v. Adair, [1942] S.C. 58. Rip J.
observed at paragraph 21:
Thus, Lord Justice-General Normand and Lord Moncrieff appear
to infer that a “regular minister” is one who
i) performs spiritual duties, the conduct of religious
services, the administration of sacraments and the like;
ii) is appointed by a body or person with the legitimate
authority to appoint or ordain ministers on behalf of the
denomination; and
iii) is in a position or appointment of some permanence.
In the absence of a legitimate appointment, the mere
performance of the duties of a minister will not suffice, in
their view, to constitute a “regular minister”.
[29] After reviewing these elements, Rip J. found that
the Appellant was not a regular minister of the Roman Catholic
Church because her appointment was made at the pleasure of the
Bishop and was therefore not permanent as required by the above
criteria. Moreover, her performance of certain sacraments of the
Roman Catholic Church was limited to that of Church laity. Thus,
he concluded she was not a regular minister of a religious
denomination.
[30] More recently, Bowman J. in Kraft v. Canada,
[1999] T.C.J. No. 31 (T.C.C.), commented on the role
that ordination takes with respect to defining the term
"clergy" for the purpose of
paragraph 8(1)(c). He stated at paragraph 9
that:
Whether one is a member of the clergy or a regular minister of
a religious denomination depends upon the practices of the
particular denomination. There seems to be an assumption,
unwarranted in my view, that to be a member of the
"clergy" the particular denomination must call the
ceremony whereby the person is set apart spiritually
"ordination". This faith in the power of words to
create reality is misplaced. I should have thought that what
matters to whether a person is a member of the clergy is what he
or she is, not what the particular denomination calls the
ceremony whereby the person gets there. The ritual whereby one
becomes a minister or a person set apart from the laity as a
spiritual leader in a particular church may not in all cases be
called ordination. The argument for restricting the term
"clergy" to persons who are "ordained" seems
to be premised on a requirement not only that there be a formal
ceremony investing the person with the trappings and
accoutrements, tangible and intangible, of spiritual superiority
appropriate to the particular church, but also that the church
call the ritual "ordination".
[31] He continued at paragraph 13:
Whether one is member of the clergy in a particular church
depends upon the procedures and rituals of that church. It
requires a formal act of recognition whereby that person is set
apart from the other members of the church as a spiritual leader.
It does not require necessarily that it be done by someone higher
up the ecclesiastical hierarchy. Some churches recognize no such
hierarchy. It may be done by the congregation. It requires a
formal, serious and long-term commitment to the ministry. If
these elements exist, whether or not the particular denomination
calls the formal ritual "ordination", the person
accorded that status by the church is in my view a member of the
clergy.
[32] In Austin v. Canada, [1999] T.C.J. No.
126 (T.C.C.), Bowman J. held that a Minister of Music
qualified for the residence deduction although he was not
ordained and was a member of a religious denomination which
provided for ordination of its clergy. At paragraphs 33
through 36 of his Reasons for Judgment, he adopted the criteria
quoted by Rip J. in Hardy (supra) and his
comments concerning the term "regular minister":
33 ... Rip J. in Hardy v. Canada, [1997] T.C.J. No. 1191,
discussed at some length the jurisprudence relating to the words
"regular minister". His comments are most instructive.
At paragraph 8:
[para 8] I agree with respondent’s counsel that a
regular minister need not necessarily be one who is ordained to
qualify for the cleric’s residence deduction.
...
36 I am satisfied that the appellant here was a "regular
minister" of the Pentecostal Church. He meets all of the
criteria set out by Rip J. His appointment was made in accordance
with formal procedures and was permanent so long as he remained
in the function.
[33] Hence, it is apparent that one need not be ordained, even
if ordination is practiced within one's religious
denomination in order to qualify for the deduction if one meets
the criteria.
[34] While somewhat similar, the distinctions between
Hardy (supra) and the Appellant's case are
significant. The Appellant in this case was appointed a Roman
Catholic chaplain, she was not an assistant to another church
official. She herself held the designated office. In terms of
spiritual Roman Catholic duties, she was authorized to offer all
the prayers and rites and gave a reflection and instruction on
the Word of God during the Sunday services and performed other
duties and celebrations as required. Her appointment was broad,
extensive and permanent with accompanying health, pension and
other benefits. Even if funding was withdrawn, the evidence is
the Roman Catholic chaplain's work would continue.
[35] She was the spiritual leader and had the primary
responsibility for the ministry at the Nova Institution for Women
and she performed the duties of this spiritual leadership herself
with the appropriate ecclesiastical authority to do so.
CONCLUSION
[36] I find the Appellant was set apart from the other members
of the Church laity. She was designated in the closed confined
prison environment a prison chaplain by the Interfaith Committee
and by the act of appointment by the Archbishop, the
appropriate Roman Catholic authority. She has undertaken a
formal, serious, long-term commitment to her ministry.
[37] She performs spiritual duties, gives pastoral care,
conducts religious services (including prayers and Sunday
worship) and she administers to this confined population as much
as possible the rituals, rites and sacraments of the Church.
[38] Her appointment was continuing and permanent. This
position, from the perspective of the Roman Catholic Church, is
that the chaplain services will carry on whether the CSC funding
is in place or not. She is looked upon by her confined
congregation as their spiritual leader and she is in fact
described by her Church as a minister.
[39] In essence, I find the Appellant is a "regular
minister" of the Roman Catholic Church for the purposes of
paragraph 8(1)(c) of the Act.
DECISION
[40] The appeal is allowed and the assessment is referred back
to the Minister for reconsideration and reassessment on the basis
that the Appellant is a regular minister of the Roman Catholic
Church for the purposes of paragraph 8(1)(c).
[41] The Appellant being fully successful in her appeal and
being represented by counsel in the hearing, costs are fixed in
the amount of $500 and are awarded to the Appellant.
Signed at Ottawa, Canada, this 13th day of April 1999.
"D. Hamlyn"
J.T.C.C.
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