REASONS FOR JUDGMENT
Masse D.J.
[1]
Does a person who sits on an advisory committee
hold an office included as insurable employment within the meaning of the Employment
Insurance Act, S.C. 1996, c. 23?
[2]
In this case, this is an appeal from a decision
of the Minister of National Revenue (the Minister) dated May 23, 2012, under
the Employment Insurance Act, S.C. 1996, c. 23, as amended (the Act),
concerning the insurability of employment for the period from January 1, 2010,
to February 7, 2011 (the period).
[3]
The appellant is appealing that decision.
Factual background
[4]
The salient facts are undisputed. The payer is
the Government of Canada, Treasury Board Secretariat (the Secretariat). The
appellant has been a lawyer since 1986 and is self-employed. She operates a law
firm under the name “Marie‑Andrée Mallette, Avocate‑Lawyer”. The
firm is located in Châteauguay, Quebec. The appellant specializes in commercial
and corporate law, international transactions, real-estate law, agricultural
law and civil litigation.
[5]
Under section 16.21 of the Financial Administration
Act, R.S.C. 1985, c. F‑11 (FAA), the Secretariat appointed the
appellant as a member of the Treasury Board Secretariat of Canada’s Audit
Committee (the Committee) as of April 10, 2008. The Committee’s role is to
[Translation] “provide independent and objective advice and recommendations to
the deputy head with regard to the completeness, quality and results of
assurance on the adequacy and functioning of the Department’s risk management,
control and governance frameworks and processes (including accountability and auditing
systems)” (see Exhibit A‑1, tab 5). The Committee is a
strategic resource for the deputy head. At the deputy head’s request, the
Committee may provide advice and recommendations and prepare reports on
departmental priorities, concerns, and risks with a view to improving the
responsible management of public funds and accountability. The deputy head may
use this information to manage risks and improve the department’s performance. The
committee members are recruited from outside federal public administration. The
Committee has no decision-making power. The Committee’s role is strictly
advisory. The Committee may make recommendations and draft legal opinions on
the risks to be identified in the Deputy Minister’s internal audit reports. Those
recommendations are not binding on the Deputy Minister. The Committee members do
not represent anybody, and they are not accountable to anybody.
[6]
The appellant was not governed by the collective
agreement of Crown employees, and she was not an employee. During the period,
the appellant continued to practise as a lawyer. The appellant and the
Secretariat considered the appellant’s appointment as a member of the Committee
to not be insurable.
[7]
The Committee members are appointed by the
Treasury Board through an Order in Council on the recommendation of the
Treasury Board President. The appointees hold their positions “at pleasure”,
but it is a four-year term, renewable only once. The appointment may be
terminated at any time without prior notice and without any further
compensation. The Treasury Board’s appointees are deemed to be government
officials for the purposes of the Policy on Legal Assistance and
Indemnification. Audit Committee members’ fees are established at $1,500
per day or $200 per hour. Travel and related expenses are reimbursed. Appointees
must attend and participate in audit committee meetings, which are usually held
in the National Capital region, a minimum of four times per year, as arranged
by the President of the Treasury Board. Appointees must also attend and
participate in other meetings or teleconferences as needed. Appointees must
also prepare written presentations, reports and analyses; participate in
presentations, information sessions and evaluations; and perform other related functions
as needed.
Statutory provisions
[8]
The statutory provisions of the Act read as
follows:
5. (1) Subject
to subsection (2), insurable employment is
. . .
(d) employment included by regulations made
under subsection (4) or (5); and
. . .
(4) The Commission may, with the approval of the Governor in Council,
make regulations for including in insurable employment
. . .
(g) the tenure of an office as defined in
subsection 2(1) of the Canada Pension Plan.
[9]
The relevant provisions in the Regulations read
as follows:
6. Employment in any of the following employments, unless it is
excluded from insurable employment by any provision of these Regulations, is
included in insurable employment:
(f) employment of a person who holds an office, as defined
in subsection 2(1) of the Canada Pension Plan,
(i) in or under any department or other portion
of the federal public administration set out in Schedule I, II, III, IV or V to
the Financial Administration Act,
[10]
The Plan defines an office as follows:
2(1) In this Act,
. . .
“office” and “officer” “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;
[11]
The relevant provisions of the FAA read as
follows:
16.1 The
deputy head or chief executive officer of a department is responsible for ensuring
an internal audit capacity appropriate to the needs of the department.
16.2 Subject
to and except as otherwise provided in any directives issued by the Treasury
Board under paragraph 7(1)(e.2), the deputy head or chief executive
officer of a department shall establish an audit committee for the department.
16.21 (1) A
person who does not occupy a position in the federal public administration but
who meets the qualifications established by directive of the Treasury Board may
be appointed to an audit committee by the Treasury Board on the recommendation
of the President of the Treasury Board.
(2)
A member of an audit committee so appointed holds office during pleasure for a
term not exceeding four years, which may be renewed for a second term.
(3)
A member of an audit committee so appointed shall be paid the remuneration and
expenses fixed by the Treasury Board.
[12]
The Treasury Board is listed in Schedule I of
the FAA.
Position of the parties
[13]
The appellant maintains that she does not hold
an office within the meaning of paragraph 5(4)(g) of the Act. She
stated that paragraph 6(f) of the Employment Insurance
Regulations SOR/96-332 (the Regulations), which refers to the definition of
“office” in subsection 2(1) of the Canada Pension Plan, R.S.C. 1985,
c. C‑8 (the Plan) does not refer to the mandate of the Committee
members. The members are not elected or appointed to an authoritative
governance position, a public service position, a position of director of a corporation
or a position of a representative. The Committee members represent nobody,
assume only an advisory role and have no decision-making or administrative
power. The list of mandates in subsection 2(1) of the Plan is more similar to a
board of directors’ position. In addition, the appellant argues that her
mandate is not insurable employment because it is casual employment for
purposes other than the employer’s business. Her mandate is not the employer’s
main activity. Therefore, according to the appellant, the appeal should be
allowed.
[14]
The respondent argues that the appellant, as a
member of the committee, held a position entitling her to a fixed or
ascertainable stipend or remuneration within the meaning of the definition of “office”
in subsection 2(1) of the Plan. The respondent also argues that this office was
held with a department listed in Schedule I of the FAA, in this case, the
Treasury Board. Therefore, the respondent correctly decided that the appellant
held an office included as insurable employment, in accordance with paragraphs
5(1)(d) and 5(4)(g) of the Act because the conditions in
subparagraph 6(f)(i) of the Regulations have all been met. Thus, the
respondent submits that the appeal should be dismissed.
Analysis
[15]
It cannot be disputed that there is no relationship
of subordination between the appellant and the Secretariat. The appellant and
the Secretariat were not bound by a contract of employment under the common law
or the civil law. The appellant is not an employee of the Secretariat.
[16]
The central issue to be determined is whether
the appellant held an office within the meaning of subsection 2(1) of the Plan.
If she held an office within the meaning of subsection 2(1) of the Plan, she
held pensionable employment under the Plan.
[17]
In Vachon Estate v. R., 2009 FCA 375,
[2009] F.C.J. No. 1630 (QL), 2010 D.T.C. 5032, Justice Noël of the Federal
Court of Appeal had to discuss the meaning of the word “office” within the
meaning of subsection 248(1) of the Income Tax Act, R.S.C. 1985, c.
1 (5th Supp.) (the ITA). The wording of subsection 248(1) of the ITA is
very similar to that of subsection 2(1) of the Plan. Justice Noël
explained at paragraph 36 that the legal tests underlying the existence of
an office are two-fold:
[36] In this
case, the relevant legal tests underlying the existence of an office are
twofold: first, the individuals involved must hold an “office, the incumbent
of which is elected by popular vote or is elected or appointed in a
representative capacity” and, second, the position in question must
entitle the individual to a fixed or ascertainable stipend or remuneration.
[Emphasis
added.]
[18]
In Ontario v. Canada (Minister of National
Revenue - M.N.R.), 2011 FCA 314, [2011] F.C.J. No. 1616 (QL), 427 N.R. 357,
the Minister had determined that two members of the Ontario Judicial
Appointments Committee, established by the government of Ontario in accordance
with the Courts of Justice Act, R.S.O. 1990, c. C.43, held
pensionable employment under the Plan. Ontario succeeded before the Tax Court
of Canada, and the Minister appealed to the Federal Court of Appeal. The
mandate of the Committee is to recruit, interview and recommend to the Attorney
General candidates who are qualified and suitable to be appointed as judges of
the Ontario Court of Justice. The Committee reviews applications for such appointments,
conducts reference checks and interviews, and provides the Attorney General
with a ranked list of qualified candidates. Appointments must be made from that
list. The Committee is independent of the Ministry of the Attorney General and
the provincial government. The Committee’s tasks were strictly advisory, not
administrative. They received a daily rate set by Order in Council. The two
members of the Committee were not employees of Ontario. Rather, they were
holders of an office. The question before the Court was whether an entitlement
to remuneration based on a stated amount of money for each day of service is “fixed
or ascertainable”. The Federal Court of Appeal, per Justice Sharlow,
decided that an entitlement to remuneration based on a pre‑established
daily rate is sufficiently “fixed or ascertainable” to meet regulatory
criteria. The Court therefore allowed the Minister’s appeal. The Federal Court
of Appeal came to the same conclusion in Real Estate Council of Alberta v.
Canada (Minister of Revenue), 2012 FCA 121, [2012] F.C.J. No. 680 (QL), 434
N.R. 32.
[19]
In this case, the appellant received a daily
rate of pay of $1,500 per day or $200 per hour. The rate was known in advance. Therefore,
I agree with the respondent that the conditions of the stipend or remuneration
established or known in advance were “fixed or ascertainable”. Thus, one of the
legal tests to which Justice Noël referred in Vachon, supra, was
fulfilled.
[20]
In Ontario, supra, and Real
Estate Council of Alberta, supra, the first criterion of an “. . .
office the incumbent of which is elected . . . or appointed in a representative
capacity” was not disputed. The Federal Court of Appeal examined only the
second criterion, that is, “entitling him to a fixed or ascertainable stipend
or remuneration”.
[21]
However, the other criterion characterizes the
definition of “office” in a significant way. It is to be noted that the Federal
Court in Ontario, supra, and Real Estate Council of Alberta,
supra, did not rule on the scope of the following wording found in
section 2 of the Plan:
. . . 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, . . . .
[Emphasis added.]
[22]
If I understand correctly, the appellant’s
argument is based on the second criterion. The appellant argues that the
Committee members are not part of the list of people found in the definition of
the word “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 as the Committee members are. More specifically, the
appellant argues that the Committee members were not appointed in a
representative capacity. She is relying on the definition of “representative”
found in various dictionaries in support of this claim. The Dictionnaire de
Droit Québécois et Canadien, 4th edition, defines “représentant, (ante)” as
“Personne qui accomplit un acte au nom, à la place et pour le compte d’une
autre personne, le représenté, en vertu d’un pouvoir qui lui a été conféré par
la loi, par une décision du tribunal ou par une convention”. “Représentatif,
(ive)” is defined as “Se dit d’un organe qui exprime l’opinion de l’ensemble de
la population ou d’un groupe de personnes déterminé. Ex. Le Barreau est
représentatif de ses membres.” Black’s Law Dictionary, Fifth Edition, an
American dictionary, defines “representative” as “One who represents or stands
in the place of another. One who represents others or another in a special
capacity, as an agent, and term is interchangeable with “agent”. A person
chosen by the people to represent their several interests in a legislative
body; e.g. representative elected to serve in Congress from a state
congressional district. “Representative” includes an agent, an officer of a
corporation or association, and a trustee, executor or administrator of an
estate, or any other person empowered to act for another”.
[23]
Unfortunately, this argument cannot help the
appellant. In my view, there is nothing in the wording of subsection 2(1) of
the Plan that leads to the conclusion that advisory committee members are
excluded from the definition of “office”. Based on the normal rules of
interpretation, the definition given in legislation is not exhaustive when it
is followed by the word “includes”: Zellers Inc. v. New Brunswick (Minister
of Finance), [1998] 3 C.T.C. 55 (B.R.N.B.); Séguin v. R., [1996] T.C.J.
No. 1643 (QL), [1998] 1 C.T.C. 2453 (T.C.C.).
[24]
My learned colleague, Justice Hershfield,
considered the same argument in Nuclear Waste Management Organization v.
Canada (Minister of National Revenue – M.N.R.), 2012 TCC 217, [2012] T.C.J.
No. 167 (QL). Justice Hershfield had to decide whether members of the
advisory council of the Nuclear Waste Management Organization held an office. As
in this case, it was an advisory committee, not a board of directors. The
committee members did not hold an authoritative governance position or a public
service position. Justice Hershfield observed that the definition of the
word “office” in subsection 2(1) of the Plan starts off with a broad
definition followed by some expressly enumerated examples. Acknowledging that the
presumption against tautology dictates that Parliament avoids meaningless words,
Justice Hershfield concluded that the list of positions specifically enumerated
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’”
(see paragraphs 24 to 26).
[25]
Justice Hershfield referred to the words “means”
and “includes”, found in the English version of subsection 2(1) of the Plan,
which reads as follows:
2(1) In this
Act,
. . .
“office” means
the position of an individual entitling him to a fixes 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.
[Emphasis
added.]
[26]
Justice Hershfield expressed himself with such
eloquence and concision in his Reasons for Judgment that I can do no better
than to repeat his dictum. Justice Hershfield explains as follows:
[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”.
. . .
[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.
. . .
[38] Accordingly,
for all these reasons, the appeal is dismissed, without costs.
[27]
In my view, Justice Hershfield’s analysis in Nuclear
Waste Management Organization, supra, provides a complete and
determinative response to the appellant’s arguments.
Conclusion
[28]
I find that the appellant, as a member of the
Committee, held an office within the meaning of subsection 2(1) of the Plan
and, thus, held insurable employment within the meaning of subparagraph 6(f)(i)
of the Regulations, in accordance with paragraphs 5(1)(d) and 5(4)(g)
of the Act.
[29]
For these reasons, the appeal is dismissed.
Signed at Kingston, Ontario, this 22nd
day of July 2014.
“Rommel G. Masse”
Translation certified true
on this 5th day of September 2014
Margarita Gorbounova, Translator
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