Date: 20111116
Dockets: A-72-11
A-73-11
Citation:
2011 FCA 314
CORAM: NADON
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
MINISTER OF NATIONAL REVENUE
Appellant
and
HER MAJESTY THE QUEEN
IN RIGHT OF ONTARIO
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on November 16, 2011)
SHARLOW J.A.
[1]
In
two decisions dated January 10, 2010, the Minister of National Revenue
determined that Roger Davidson and Gail Stiffler were engaged in pensionable
employment under the Canada Pension Plan, R.S.C. 1985, c. C-8, while
they were members of the Ontario Judicial Appointments Committee (the
“Committee”) established by the Government of Ontario pursuant to the Courts
of Justice Act, R.S.O. 1990, c. C43. For Mr. Davidson, the relevant period
is January 1, 2005 to December 31, 2007. For Ms. Stiffler, the relevant period
is January 1, 2006 to December 31, 2008.
[2]
Ontario, as the
party responsible for paying the remuneration to which members of the Committee
were entitled, appealed the Minister’s decisions to the Tax Court of Canada,
and succeeded in obtaining judgments vacating the Minister’s decisions. The
Minister has appealed to this Court. The two appeals were heard together.
[3]
For
the following reasons, and despite the able submissions of counsel for Ontario, we have
concluded that these appeals should be allowed.
[4]
The
facts are undisputed. They are set out in the reasons for decision of the judge
(reported as Ontario v. Canada (Minister of
National Revenue), 2011 TCC 23). For the purposes of these
appeals, only a summary is necessary.
[5]
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 listed of qualified candidates. Appointments
must be made from that list.
[6]
The
Committee is independent of the Ministry of the Attorney General and the
provincial government. Mr. Davidson and Ms. Stiffler, as members of the
Committee, were not employees. Rather, they were holders of an office. Their
remuneration consisted of an amount paid for each day on which they rendered
the services required of them as members of the Committee. Their days of
service were recorded by invoices submitted to the Ontario Office of Judicial
Support Services. The daily rate, as set by Orders in Council, was $100 until
May 9, 2007, when it was increased to $355.
[7]
The
number of days on which Mr. Davidson and Ms. Stiffler rendered services as members
of the Committee varied with the number of judicial vacancies, which was
unpredictable. In 2005, 2006 and 2007, Mr. Davidson worked 124 days, 135 days
and 91 days respectively. In 2006, 2007 and 2008, Ms. Stiffler worked 132, 96
and 118 days respectively.
[8]
It
is common ground that, by the combined operation of section 6 of the Canada
Pension Plan, the definition of “office” in section 2 of the Canada
Pension Plan, and section 24 of the Canada Pension Plan Regulations,
C.R.C. c. 385, a member of the Committee is engaged in pensionable employment if
that position carries the entitlement to a “fixed or ascertainable stipend or
remuneration” (« lui donnant droit à un traitement ou à une rémunération
déterminée ou constable »).
[9]
The
question before this Court is whether an entitlement to remuneration based on a
stated amount of money for each day of service is “fixed or ascertainable”. The
judge concluded that because it was not possible to determine, at the beginning
of a particular year, how many days of service would be required of a member of
the Committee, the member’s remuneration was neither fixed nor ascertainable. He
reached this conclusion after considering the case law, which he acknowledged was
inconsistent, and adopting the approach taken on similar facts in Payette v.
Canada (Minister of
National Revenue), [2002] T.C.J. No. 386 (QL).
[10]
We
are all of the view that this conclusion is not correct. We see nothing in the
language of the definition of “office” in section 2 of the Canada Pension
Plan read in its statutory context, that justifies the Court in
interpreting the phrase “fixed or ascertainable” to require an advance
determination of the total remuneration for a particular year. We agree with
the Minister that a legal entitlement to a per diem rate of remuneration
established in advance is sufficiently “fixed or ascertainable” to meet the
statutory test.
[11]
We
see nothing in any of the decisions of this Court, including Rumford v.
Canada (1993), 164 N.R. 315, [1994] 1 C.T.C. 239, 94 D.T.C. 6121 (F.C.A.)
and Vachon Estate v. Canada, 2009 FCA 375, that is inconsistent with
this conclusion. In those cases, the “fixed or ascertainable” test was held to
be met for an office holder who was entitled to a fixed amount of remuneration
for a year. Such an advance annual determination normally will be sufficient to
meet the test, but that does not mean that it is necessary.
[12]
The
appeals will be allowed with one set of costs, the judgments of the Tax Court
of Canada will be set aside, and Ontario’s appeals of the
Minister’s decisions dated January 10, 2010 will be dismissed.
"K. Sharlow"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-72-11
and A-73-11
(APPEAL FROM THE AMENDED JUDGMENT OF THE
HONOURABLE G.J. RIP, OF THE TAX COURT OF CANADA DATED JANUARY 18, 2011, DOCKET
NO. 2010-1087 (CPP) )
STYLE OF CAUSE: MINISTER
OF NATIONAL REVENUE v. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 16, 2011
REASONS FOR JUDGMENT OF THE COURT BY: (NADON, SHARLOW & DAWSON JJ.A.)
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
|
Arnold H. Bornstein
Thang Trieu
|
FOR THE APPELLANT
|
|
Omar Shahab
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE APPELLANT
|
|
Ministry of
Government Services
Legal Services Branch
Toronto, Ontario
|
FOR THE
RESPONDENT
|
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