Dockets:
A-484-08, A-485-08, A-486-08, A-487-08,
A-488-08,
A-489-08, A-490-08, A-491-08,
A-492-08,
A-493-08, A-494-08, A-495-08,
A-496-08,
A-498-08, A-499-08, A-500-08
Citation:
2009 FCA 375
CORAM: BLAIS C.J.
LÉTOURNEAU J.A.
NOËL J.A.
A-484-08
BETWEEN:
MINISTER OF NATIONAL REVENUE
Appellant
and
CONSEIL
CENTRAL DES SYNDICATS NATIONAUX
DU SAGUENAY/LAC ST-JEAN (CSN)
Respondent
A-485-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
DANY VIGNEAULT
Respondent
A-486-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
PIERRE BHERER
Respondent
A-487-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
MARYSE BOUDREAULT
Respondent
A-488-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
ALAIN THERRIEN
Respondent
A-489-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
GUY GINGRAS
Respondent
A-490-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
JEANNINE GIRARD
Respondent
A-491-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
LILIANE DUFOUR
Respondent
A-492-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
VALOIS PELLETIER
Respondent
A-493-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
PIERRE MOREL
Respondent
A-494-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
YVES TREMBLAY
Respondent
A-495-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
DENISE
VACHON, EXECUTOR OF THE
ESTATE
OF ROGER VACHON
Respondent
A-496-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
RÉJEANNE GRAVEL
Respondent
A-498-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
CHANTAL CÔTÉ
Respondent
A-499-08
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
GILLES BELZILE
Respondent
A-500-08
BETWEEN:
MINISTER OF NATIONAL REVENUE
Appellant
and
CONSEIL
CENTRAL CÔTE-NORD INC.
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1]
The Minister of National Revenue (the Minister) and
Her Majesty the Queen (collectively, the appellants) are appealing 16 decisions
rendered by Justice Archambault of the Tax Court of Canada (the TCC judge)
allowing, on the basis of common evidence and the same set of reasons, each of
the respondents’ appeals and vacating the assessments issued against them for
the 2002, 2003 and 2004 taxation years, or one or more of those years, as
the case may be.
BACKGROUND
[2]
The respondents (appellants before the TCC) are the Conseil central Côte‑Nord
Inc. and the Conseil central des syndicats nationaux du Saguenay/Lac Saint-Jean
(CSN) (the central councils), as well as the 14 individuals identified as
such in the style of cause, who are all union officials working for one of the
two central councils (the union officials).
[3]
The issue involves the tax treatment of certain
allowances paid by the central councils to the union officials in the course of
their union activities. The Minister originally determined that these
allowances were taxable under sections 5 and 6 of the Income Tax
Act, R.S.C. 1985, c. 1 (5th Supp.) (the Act), and considered them
to be insurable earnings within the meaning of the Employment Insurance
Regulations, SOR /96-332 (the EIR).
[4]
After the Minister’s decision was challenged in
court, the TCC judge found that the allowances in question were neither taxable
nor insurable, since they were paid not in the course of an office or employment
but, rather, for the performance of union duties on a volunteer basis.
Consequently, he ordered that the assessments be vacated.
[5]
The appellants are asking this Court to reverse
that decision. They submit that, in rejecting their position, the TCC judge unduly restricted the definition of
office and employment, and made several errors of law.
[6]
An order was made by this Court on
November 28, 2008, consolidating the 16 appeals and designating file A‑484‑08
as the lead file. In accordance with that order, these reasons will be filed in
A‑484‑08, and a copy hereof will be entered in each of the 15 related
files (A‑485‑08 to A‑496‑08 and A‑498‑08 to
A‑500‑08) to stand as reasons in those cases. A formal judgment
will also be entered in each file.
FACTS
[7]
Each of the union officials was elected to a
position within the union as president, treasurer, executive secretary or
representative on one of the central councils for a three‑year term (reasons,
para. 2). Each union official is also employed by a regular employer, for
which a local affiliated with the Confédération nationale (CSN) was certified.
[8]
Local unions are grouped together in a
federation under a regional central council such as the ones in this case, and the
regional central councils themselves are grouped together under the CSN (reasons,
para. 6).
[9]
When elected, union officials undertake to comply
with their respective central councils’ constitution
and by‑laws, which provide in particular for the powers and duties of
each elected union officer. According to the undertaking form in this
constitution, the union officers must, among other things, promise to fulfill
the duties of their office, promote the interests of the central council and
remain in their position until a successor is appointed (constitution and by‑laws,
appeal book, Vol. I, pp. 254 to 268).
[10]
To carry out their union duties, the union officials
had to present in advance a written request for union leave to their regular employers
according to the terms of the applicable collective agreement (reasons, para.
2). Although the agreements are worded differently, the leave mechanism is
essentially the same.
[11]
With their regular employers’ approval, the union
officials could take time off work and, depending on the position, obtain two
to five days’ leave per week to carry out their union activities and duties.
[12]
The collective agreements provided that, during
this absence, the regular employers would continue to pay the union officials an
amount equal to the amount which they would have received had they remained at
work. According to the collective arguments, this payment was conditional upon the
local reimbursing the regular employer for this remuneration as well as all of
the fringe benefits and the regular employer’s share of the benefit plan. The
local would then be reimbursed by the central councils (appeal book, Vol. I,
pp. 293, 304, 305 and 310; appeal book, Vol. II, pp. 505,
531, 547, 559 and 567).
[13]
Each year, the regular employers would produce on
behalf of the union officials the required T4 forms reflecting the remuneration
paid to each union official during the period of union leave (reasons, para.
43). The union officials duly declared this remuneration in their tax returns, and
the assessment for those amounts is not in dispute.
[14]
In addition, the union officials would also
receive from the central councils allowances for the meal, travel and child
care expenses that they incurred in the course of their union work (reasons,
para. 2). These allowances were paid in accordance with union regulations upon
a claim being filed. The allowance paid was a fixed amount, and was payable regardless
of the expense incurred, and proof of the expenditure was not required (appeal
book, Vol. II, p. 426; appeal book, Vol. I, p. 269).
[15]
For the relevant period, the Minister issued
assessments against the officials in which these allowances were included in
their income as benefits from an office or employment, under sections 5 and 6
of the Act. The Minister also considered these allowances to be insurable earnings
within the meaning of the Employment Insurance Act, S.C. 1996, c. 23
(EIA), and determined, by way of assessments, the amounts owed by the central
councils as payers of these insurable earnings.
[16]
These assessments were challenged and eventually
appealed to the Tax Court of Canada. As noted above, on August 29, 2008, the
TCC judge allowed the 16 appeals on the basis that the union officials did
not hold an office or employment which could be connected to the allowances
that they were paid. That is the decision under appeal.
TCC DECISION
[17]
At the very beginning of his reasons, the TCC
judge identifies the issue as follows (reasons, para. 3):
Whether the Minister’s
assessments are well‑founded depends to a great extent on the answer to
the following question: Did the 14 officials hold, for the purposes of
sections 5 and 6 of the Income Tax Act (ITA), an “office” as
defined in subsection 248(1) of the ITA, and, for the purposes of the
definition of “insurable employment” in the EIA and the purposes of section 6
of the Employment Insurance Regulations (EIR), within the meaning of
subsection 2(1) of the Canada Pension Plan (CPP)? To put it more
precisely, the question is whether the elected officials’ positions on the
central councils entitled them to “a fixed or ascertainable stipend or
remuneration” under subsection 248(1) of the ITA or subsection 2(1)
of the CPP.
[18]
After carrying out an exhaustive review of the
facts (reasons, paras. 4 to 31), the TCC judge reproduces the relevant statutory provisions (reasons, para.
32). Among these provisions, the only ones that are contentious are the definitions
of the term “office” at subsection 248(1) of the Act and subsection 2(1)
of the Canada Pension Plan, R.S.C. 1985, c. C‑8 (CPP). These
definitions read as follows:
|
248(1) “office” means
the position of an individual entitling the individual 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 member of the Senate
or House of Commons of Canada, 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;
|
248(1) « charge »
Poste qu’occupe un particulier et qui lui donne droit à un
traitement ou à une rémunération fixe ou vérifiable, y compris une charge
judiciaire, la charge de ministre de la Couronne, la charge de membre du
Sénat ou de la Chambre des communes du Canada, de membre d’une assemblée
législative ou de membre d’un conseil législatif ou exécutif et toute
autre charge dont le titulaire est élu au suffrage universel ou bien choisi
ou nommé à titre représentatif, et comprend aussi le poste
d’administrateur de société; « fonctionnaire » ou
« cadre » s’entend de la personne qui détient une charge de ce
genre, y compris un conseiller municipal et un commissaire d’école.
|
|
2(1) “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;
|
2(1) « fonction »
ou « charge » Le poste qu’occupe un particulier, lui
donnant droit à un traitement ou à une rémunération déterminée ou constatable.
Sont visés par la présente définition une charge judiciaire, la charge de
ministre, de lieutenant-gouverneur, de membre du Sénat ou de la Chambre des
communes, de membre d’une assemblée législative ou d’un conseil législatif ou
exécutif et toute autre charge dont le titulaire est élu par vote
populaire ou est élu ou nommé à titre de représentant, y compris le poste
d’administrateur de personne morale; « fonctionnaire » s’entend
d’une personne détenant une telle fonction ou charge.
|
[Emphasis added by the TCC judge.]
[19]
After describing the parties’ respective positions
(reasons, paras. 33 to 49), the TCC judge begins his analysis by returning to these definitions (reasons,
para. 50):
… in order for the officials to
hold an office within the meaning of the two provisions, it is important that
their position entitle them to a “fixed and ascertainable stipend or
remuneration”. Here, the evidence as a whole clearly shows that the CSN central
council policy is not to remunerate union officials who agree to serve in various
elective positions on central councils. Being committed union activists, the
members agree to engage in the CSN’s various activities as volunteers, notably
in their capacity as elected union officials on central councils.
[20]
The TCC judge continues by explaining that the central
councils’ policy, when reimbursing salaries (reasons, para. 51), or paying
allowances for travel expenses (reasons, para. 52) or child care expenses (reasons,
para. 53), is not to remunerate the officials but, rather, to ensure that
the union officials incur no losses from their union work (ibidem).
[21]
The TCC judge adds (para. 54):
… the legal source of the
remuneration received by the various union officials is their respective
employment contracts, combined with the terms and conditions of their
collective agreements, even though their respective employers are reimbursed an
amount equal to the applicable salary and fringe benefit costs for the periods
of absence on union leave. Consequently, the union officials are not entitled,
under any contractual relationship or any central council constitution or by‑laws,
to a fixed or ascertainable stipend or remuneration under subsection 248(1) of
the ITA or subsection 2(1) of the CPP.
[22]
The TCC judge adds that the remuneration earned
by the union officials during the period on union leave is based on the contractual
relationship between the union officials and their regular employers, which
accounts for the fact that a treasurer can receive more money for his or her
union activities than a president (reasons, para. 56). According to the TCC judge, this shows that the objective is
not to remunerate the union officials but, rather, to compensate them (ibidem).
[23]
In addition, the TCC judge found that two of the
three elements essential to the existence of a contract of employment are not
present. First, since the union officials provide the central councils with
their services on a volunteer basis, there is no remuneration for the services provided.
Second, in the performance of their union duties, the union officials are not
subject to the control of the central councils (reasons, para. 56). The TCC judge concludes his analysis by
repeating that there is no office either, since the union officials’ activities
within the union do not entitle them to a fixed or ascertainable remuneration.
POSITION OF
THE PARTIES
[24]
The appellants submit first that, based on the
evidence, the TCC judge could not conclude that the union officials were acting
on a volunteer basis during their union leave. It is clear that they were
entitled to the salary owed to them by their regular employers by reason of
their union activities.
[25]
Since the central councils bore the cost of the
remuneration paid to the respondents for the period during which they were
attending to their union duties, the TCC judge had to find that it is the union officials’ activities within
the union that entitled them to this remuneration. According to the appellants,
the regular employers were acting as agents when they continued to pay the union
officials their remuneration during this period.
[26]
The appellants also submit that the remuneration
in question was “fixed or ascertainable” as required by the statutory definitions
of the term “office”. According to the evidence, the union officials knew the
exact amount that they were entitled to receive for their union activities when
they were elected. Therefore, they held a position within the meaning of the
Act.
[27]
In any event, the appellants maintain that the union
officials held employment within the meaning of paragraph 6(a) of the
EIR, according to which “is included in insurable employment … employment of a
union member by the member’s union in conducting union business”.
[28]
The respondents rely essentially on the TCC
judge’s reasoning. In their opinion, the TCC judge correctly concluded that the union officials are not
entitled, under any contractual relationship or any central council
constitution or by‑laws, to a fixed or ascertainable remuneration (reasons,
para. 54, as cited at para. 34 of the respondents’ memorandum).
[29]
According to the respondents, the Minister had
to respect [translation] “the
characterization of the parties’ legal relationships” (respondents’ memorandum,
para. 22). On this point, they rely on the following passage from the decision
of the Supreme Court in Shell Canada Ltd. v. Canada, [1999] 3 S.C.R. 622
(Shell) (para. 39):
This Court has repeatedly held
that courts must be sensitive to the economic realities of a particular
transaction, rather than being bound to what first appears to be its legal
form: Bronfman Trust, supra, at pp. 52-53, per Dickson
C.J.; Tennant, supra, at para. 26, per Iacobucci J. But
there are at least two caveats to this rule. First, this Court has
never held that the economic realities of a situation can be used to
recharacterize a taxpayer’s bona fide legal relationships. To the
contrary, we have held that, absent a specific provision of the Act to the
contrary or a finding that they are a sham, the taxpayer’s legal relationships
must be respected in tax cases. Recharacterization is only permissible if the
label attached by the taxpayer to the particular transaction does not properly
reflect its actual legal effect: Continental Bank Leasing Corp. v. Canada, [1998] 2 S.C.R. 298, at para. 21, per
Bastarache J.
[Emphasis
added]
[30]
Also according to the respondents, the TCC judge
rightly concluded that the union officials were not entitled to remuneration by
virtue of their union activities. The TCC judge was also correct in finding that this remuneration was not fixed
or ascertainable.
[31]
The respondents conclude that the officials did
not hold employment either, since there is no relationship of subordination between
the central councils and the union officials.
ANALYSIS AND
DECISION
[32]
Before proceeding with the analysis, one point
should be made. In addition to the arguments I have outlined, counsel for the
respondents suggested that the allowances paid by the central councils were not
allowances in a legal sense but, rather, reimbursement for expenses, other than
personal expenses, which were without tax consequences (respondents’ memorandum,
para. 10 c)). This argument cannot be considered at this stage of the
proceedings.
[33]
First, given the terms and conditions under
which the amounts were paid (fixed sum, regardless of the expense incurred and
with no need of proof of the actual payment), these amounts constitute taxable
allowances under the Act. Second, counsel for the respondents agreed before the
Tax Court of Canada that, if the officials held an office, the taxability of
the allowances would not be disputed. In this regard, the TCC judge writes the following (reasons,
para. 36):
Consequently, the question of whether the 14 officials received a
taxable benefit within the meaning of paragraphs 6(1)(a) and 6(1)(b)
of the [Act] was not disputed …
It is obviously too late to change the basis on which the issue was
argued before the Tax Court of Canada.
[34]
The only issue is therefore the one that the TCC
judge identified at the beginning of his reasons: “whether … the [union]officials
held an office within the meaning of subsection 248(1) of the [Act and] … subsection 2(1)
of the CPP”. If so, the appeals should be allowed; if not, they should be
dismissed (reasons, para. 36).
[35]
The TCC judge’s identification of the legal tests underlying the existence
of an office gives rise to a question of law subject to the standard of
correctness. However, the TCC judge’s conclusion that these tests were not met
based on the evidence raises a question of mixed fact and law, and cannot be
overturned absent a palpable and overriding error (Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R.
235).
[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.
[37]
The first test seems to have been met, since the
union officials were all elected to the positions that they hold on the central
councils. It is the second test that was not met, according to the TCC judge.
[38]
There are two requirements for meeting this
second test. The office or position held must “entitle” the individual to remuneration,
and this remuneration must be “fixed or ascertainable”. The fixed or
ascertainable aspect of the remuneration seems to have been met, since the union
officials knew exactly what the monetary conditions associated with their union
leave were when they applied for a union position (Testimony of Pierre Morel, appeal
book, Vol. III, p. 707).
[39]
However, in the TCC judge’s opinion, the requirement that the position or office must
“entitle” the individual to this remuneration was not met. The TCC judge drew
this conclusion mainly because “the union officials are not entitled, under any
contractual relationship or any central council constitution or by-laws, to a
fixed or ascertainable stipend or remuneration” (reasons, para. 54).
[40]
With respect, that the union officials are not
entitled to this remuneration under any contractual relationship or any central
council constitution or by‑laws is immaterial. The only issue is whether the
union officials were paid for their activities as union officers during their
union leave (on this point, see Justice Lamarre Proulx’s decision in Duguay v.
Canada, [2000] T.C.J. No. 381 (QL) at paragraph 37, where she
identifies this issue in the same way in a comparable context).
[41]
In my humble opinion, the answer is evident. The
union officials received their full salaries and all of the fringe benefits set
out in their collective agreement, despite the fact that they performed no
services for their regular employers. The regular employers were reimbursed by
the respective unions, and the cost of this remuneration was ultimately borne
by the central councils. Only the services that the union officials rendered as
in that capacity can explain why they received their usual remuneration during
their union leave, and only the fact that the regular employers were reimbursed
explains why they agreed to pay the remuneration even though they received no
services.
[42]
That the remuneration was paid through the regular
employer does not change the analysis. Contrary to the submissions of counsel
for the respondents, this is not a case of recharacterization of the legal
relationships between the parties (Shell, above, para. 39) but,
rather, of recognizing these relationships for what they are. It is clear that
the regular employers were acting on behalf of the respective unions and,
ultimately, the central councils when they agreed to remunerate the union officials
during their union leave.
[43]
Based on this analysis, the TCC judge’s finding that the union officials
were acting as volunteers is unfounded and even contrary to the evidence. A
volunteer acts [translation] “voluntarily
and without pay” (Le Petit Robert, French language dictionary). However,
the evidence shows that, once elected, the union officials undertook to assume
the powers and duties associated with their union positions (union constitution
and by‑laws, appeal book, Vol. I, pp. 254 and 268), for
which they were entitled to their usual remuneration. This is not volunteering.
[44]
For these reasons, I would allow the appeals with
one set of costs, set aside the decisions of the TCC judge and, rendering the decisions
that should have been rendered, dismiss the appeals with one set of costs.
“Marc Noël”
“I agree.
Pierre Blais
C.J.”
“I agree.
Gilles Létourneau J.A.”
Certified true
translation
Tu-Quynh Trinh
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