Date: 20051129
Docket: A-426-04
Citation: 2005 FCA 398
CORAM: LINDEN J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
REGINALD REIMER
Respondent
Heard at Toronto, Ontario, on November 29, 2005.
Judgment delivered from the Bench at Toronto, Ontario, on November 29, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
Date: 20051129
Docket: A-426-04
Citation: 2005 FCA 398
CORAM: LINDEN J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
REGINALD REIMER
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on November 29, 2005)
NOËL J.A.
[1] The issue in this appeal is whether Miller J. of the Tax Court of Canada properly found that the respondent was entitled to the clergyman's residence deduction provided by paragraph 8(1)(c) of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, as amended.
[2] Paragraph 8(1)(c) provides:
| 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, in the year, the taxpayer
(i) is a member of the clergy or of a religious order or a regular minister of a religious denomination, and
(ii) is
(A) in charge of a diocese, parish or congregation,
(B) ministering to a diocese, parish or congregation, or
(C) engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination,
the amount, not exceeding the taxpayer's remuneration for the year from the office or employment, equal to
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8.(1) Sont déductibles dans le calcul du revenu d'un contribuable tiré, pour une année d'imposition, d'une charge ou d'un emploi ceux des éléments suivants qui se rapportent entièrement à cette source de revenus, ou la partie des éléments suivants qu'il est raisonnable de considérer comme s'y rapportant:
. . .
c) lorsque le contribuable, au cours de l'année:
(i) d'une part, est membre du clergé ou d'un ordre religieux ou est ministre régulier d'une confession religieuse,
(ii) d'autre part:
(A) soit dessert un diocèse, une paroisse ou une congrégation,
(B) soit a la charge d'un diocèse, d'une paroisse ou d'une congrégation,
(C) soit s'occupe exclusivement et à plein temps du service administratif, du fait de sa nomination par un ordre religieux ou une confession religieuse,
le montant, n'excédant pas sa rémunération pour l'année provenant de sa charge ou de son emploi, égal:
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[3] The appellant concedes that the respondent was engaged in full-time administrative service, but argues that he was not so engaged by appointment of a religious denomination as contemplated by paragraph 8(1)(c).
[4] It is common ground that the Christian and Missionary Alliance of Canada ("CMAC") is a religious denomination and that the Evangelical Fellowship of Canada ("EFC") and the World Evangelical Fellowship ("WFC") are not.
[5] The Tax Court Judge noted that the evidence surrounding the appointment was unclear (Reasons, paragraphs 25 and 27). However, after reviewing the evidence and the underlying relationship between the CMAC, the EFC and the WFC, he concluded that the appointment had been made by the CMAC.
[6] While the appeal has been framed by reference to alleged errors of law, the issue in our view is whether it was open to the Tax Court Judge, on the evidence before him to hold that the appointment had effectively been made by the CMAC.
[7] The appellant contends that in the absence of an express agreement showing that EFC had waived its right to appointment it was not open to the Tax Court Judge to hold that the CMAC had made the appointment.
[8] We disagree. In our view, it was open to the Tax Court Judge to find from his analysis of the evidence and the relationship between the parties that the EFC abandoned its right of appointment to the benefit of the CMAC and that the CMAC effectively exercised this right.
[9] This is a conclusion that was open to the Tax Court Judge on the facts before him and the appellant has been unable to show that he made a palpable or overriding error in reaching it.
[10] The appeal will be dismissed, and the respondent will be entitled to reasonable and proper costs.
"Marc Noël"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-426-04
STYLE OF CAUSE: HER MAJESTY THE QUEEN
Appellant
and
REGINALD REIMER
Respondent
DATE OF HEARING: NOVEMBER 29, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: (LINDEN, NOËL & SEXTON JJ.A.)
DELIVERED FROM THE
BENCH BY: NOËL J.A.
APPEARANCES:
Franco Calabrese FOR THE APPELLANT
Craig Maw
Amanda Stacey (Assistant)
Patrick J. Boyle FOR THE RESPONDENT
Robert B. Hayhoe
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPELLANT
Deputy Attorney General of Canada
Toronto, Ontario
Fraser Milner Casgrain LLP &
Miller Thomson LLP FOR THE RESPONDENT
Toronto, Ontario
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