REASONS
FOR JUDGMENT
Lamarre A.C.J.
[1]
This is an appeal against a decision,
made by the Minister of National Revenue (Minister) on December 21,
2015, that the Appellant’s employment during the period from January 1,
2014 to April 21, 2015 was excepted from pensionable employment within the
meaning of paragraph 6(2)(i) of the Canada Pension Plan (CPP)
and section 24 of the Canada Pension Plan Regulations (Regulations).
Relevant
provisions
[2]
The relevant provisions of the CPP and the
Regulations read as follows:
CPP
CONTRIBUTIONS PAYABLE
Pensionable employment
6 (1) Pensionable employment is
(a) employment in Canada that is not
excepted employment;
. . .
(c) employment included in
pensionable employment by a regulation made under section 7.
Excepted employment
6 (2) Excepted employment is
. . .
(i)
employment by Her Majesty in right of a province or by an agent of Her Majesty
in right of a province;
. . .
(k)
employment excepted from pensionable employment by a regulation made under
section 7.
Regulations respecting employment to be included in pensionable
employment
7(1) The Governor
in Council may make regulations for including in pensionable employment
. . .
(e)
pursuant to an agreement with the government of a province, employment in Canada
by Her Majesty in right of the province or by an agent of Her Majesty in right
of the province;
Regulations
Employment by
a Province or an Agent of a Province
24(1) Employment
by Her Majesty in right of a province set out in Schedule III and employment by
an agent of Her Majesty in right of that province, except employment by an
agent thereof who is specified in Schedule IV and any employment by Her Majesty
in right of the province that is set out in that Schedule, is included in
pensionable employment.
SCHEDULE III
(Section 24)
1. Province of Ontario
SCHEDULE IV
(Section 24)
1 Province of
Ontario
. . .
(b)
Employment by appointment of Her Majesty in right of Ontario, or of an agent of
Her Majesty in right of Ontario, as a member of an agency, board, commission,
committee or other incorporated or unincorporated body, who is paid fees or
other remuneration on a per diem basis, or a retainer or honorarium, and who is
not in the full-time employment of Her Majesty in right of Ontario or of an
agent of Her Majesty in right of Ontario.
General Issue
[3]
In sum, employment by Her Majesty in right
of a province or by an agent of Her Majesty in right of a province is not
pensionable employment, except if the Governor in Council includes that
employment in pensionable employment pursuant to an agreement with the
government of a province. The Province of Ontario has elected to include in
pensionable employment employment by Her Majesty in right of Ontario or by an
agent of Her Majesty in right of Ontario, except for employment specified in
Schedule IV.
[4]
The issue in the present appeal is
whether the Appellant’s employment is caught by the exception found in item 1(b)
of Schedule IV, referred to above, such that her employment would not be
pensionable employment.
Factual Background
[5]
In June 2007, by Order in Council, the Appellant
was appointed by the Lieutenant Governor of Ontario to the position of “part-time
vice-chair” of the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
Since her initial appointment she has been reappointed to the same position, by
Order in Council, for fixed terms of three years (Exhibit R‑1), and
she still holds that position.
[6]
The WSIAT is “an Adjudicative Agency
within the Ontario administrative justice system”, a branch of the Ontario
Ministry of Labour (Exhibit A‑3, Government of Ontario, Public
Appointments Secretariat, “All Agencies List”).
[7]
The WSIAT is the final level of appeal to
which workers and employers may bring disputes concerning workplace safety and
insurance matters in Ontario (Exhibit A‑1, “Tribunal Report Caseload
Processing”).
[8]
According to the Appellant, when she was
first appointed the “part‑time vice‑chairs” were viewed as
self-employed. She was also told that her employment was pensionable and that
she would receive annually a T4A issued by the WSIAT.
[9]
In 2010, the Canada Revenue Agency (CRA)
determined that the part‑time appointees to the WSIAT were “in tenure of
office and employed by the Province of Ontario.” It was also determined that
their “employment was not insurable under the Employment Insurance Act,
but was pensionable under the Canada Pension Plan.”
[10]
This decision was initially appealed to
the Tax Court of Canada by the WSIAT, but the appeal was withdrawn on
February 24, 2015.
[11]
On December 5, 2013, following a request
from the province of Ontario, the Regulations were amended to except from
pensionable employment certain employment by the Province of Ontario or by an
agent thereof.
[12]
On February 20, 2015, following the
amendment of the Regulations and after receiving from the WSIAT a T4 stating
that she was “Exempt” with regard to the Canada Pension Plan, the Appellant
requested a ruling from the CRA on the pensionability of her employment.
[13]
On July 21, 2015, the CRA informed
the Appellant that the following decision had been made:
. . . the
Appellant was engaged in the tenure of an office with the Tribunal, however her
employment was excepted from pensionable employment within the meaning of
paragraph 6(2)(i) of the CPP and section 24 of the Canada
Pension Plan Regulations (C.R.C., c. 385) (the “Regulations”)
during the Period (the “Ruling”).
[14]
On August 29, 2015, the Appellant
filed an appeal with the Chief of Appeals. The ruling was confirmed by the
Minister on December 21, 2015, and it was reiterated that the Appellant’s employment
was “excepted from pensionable employment”.
[15]
It is acknowledged by the parties that
the Appellant is employed by the WSIAT through the tenure of an “office” within
the meaning of subsection 2(1) of the CPP.
[16]
In her testimony, the Appellant stated that
since 2013 she has been working full‑time for the WSIAT (following her
decision to assume such a workload and with the approval of the WSIAT) even
though she was appointed as a part‑time vice‑chair. She described
the change in her schedule from part-time to full-time as having been “fairly
casual” as “[i]t wasn’t formalized in any way”.
She said she was being paid on a per diem basis as well as on an hourly basis
for certain functions. In cross‑examination, she acknowledged that her hourly
rate was in fact the per diem rate to which she was entitled divided by the
maximum number of hours that she could bill (eight hours), which gave an hourly
rate of $83.
[17]
In fact, according to the billing
guidelines for a part‑time vice‑chair filed by the Appellant (Exhibit A‑2),
her remuneration from the Tribunal is based on an eight‑hour day per diem
and the maximum daily payment is $664, which also corresponds to her per diem according
to the Ontario Public Appointments Secretariat’s “Agency Details” regarding
Ontario Government appointees to the WSIAT (Exhibit R‑2,
page 2).
[18]
Since her first appointment in 2007, the Appellant
has been contributing annually to the CPP. Contributions were also paid by the WSIAT
from 2007 to 2009. However, for the period starting in 2010 those contributions
were described as being “pending” (Exhibit A‑3, “Canada Pension Plan
contributions since appointed to WSIAT”.)
Specific Issues
[19]
The issue is whether the Appellant was engaged
in pensionable employment with the WSIAT during the period from January 1,
2014 to April 21, 2015, or whether the employment was excepted pursuant to
item 1(b) of Schedule IV of the Regulations.
[20]
Specifically, the parties raise two questions
in relation to the applicability of the exception: (1) was the Appellant
paid on a “per diem” basis? and (2) was she in the full-time employment of
the WSIAT?
[21]
If I conclude that the Appellant was paid
on a per diem basis and that she was not in the full‑time employment of the
WSIAT, then I will have to find that her employment with the WSIAT was not
pensionable employment and the appeal will be dismissed.
[22]
For the reasons that follow, the Court finds
that the Minister correctly ruled that the Appellant’s employment was excepted
from pensionable employment.
Positions of the Parties
(1) The
Appellant’s Position
[23]
The Appellant submits that, for the
period at issue, she held “pensionable employment” with the WSIAT for the
purposes of subsection 24(1) of the Regulations because she did not fall
within the exception established by Schedule IV of the Regulations, as she
was not paid solely on a per diem basis and was working full-time for the WSIAT.
[24]
The Appellant argues that, in order to
establish the terms of her appointment to the WSIAT, the Court should look
beyond the wording of the Order in Council (Exhibit R‑1) and give
weight to the substance of her employment.
Not in the
full‑time employment
[25]
To support her argument, she referred to
the cases of Town Properties Ltd. v. The
Queen, 2004 TCC 375 and Woessner
v. R., [1999]
4 C.T.C. 2337, in which the issue was whether certain individuals were
engaged in full‑time employment with the employer for the purpose of the
small business deduction under the Income Tax Act.
[26]
At the hearing, the Appellant indicated
that the Minister had admitted that she had in fact been working full-time for the
WSIAT during the period at issue. Hence, she submitted, in light of her
situation there is nothing to justify this Court’s reaching a conclusion contrary
to that admission by determining that she was not in full‑time employment
within the meaning of the CPP Regulations.
[27]
The Appellant acknowledged that she could
refuse work assigned to her by the WSIAT. She also admitted that, if she did so,
there would be no consequences except possibly with regard to reappointment, as
the recommendation for reappointment is based on performance. However, she
mentioned that once she had accepted an assignment she could not subsequently decline it.
[28]
Therefore, in response to the suggestion
of the Minister’s counsel that she was voluntarily working full-time, she stated
that, if indeed it was her choice to take on such a workload, it could not
possibly have been a unilateral decision, as it was the WSIAT that assigned
hearings to her each month and approved her schedule.
[29]
The Appellant also stated that her
decision to work full-time was made in the context of the WSIAT encouraging its
"‘part-time’ vice-chairs" to work full-time in order to deal with the
exponential growth of active caseloads (Exhibit A‑1, “Tribunal
Report, Caseload Processing”).
[30]
The Appellant also quoted the following
passage from the “Regulatory Impact Analysis Statement” issued regarding the
amendment of Schedule IV of the Regulations and published in the Canada
Gazette Part II (Exhibit A‑3):
Rationale
The Minister of National Revenue entered into an agreement on behalf
of the Government of Canada with the Government of Ontario, whereby the
Minister would recommend to her colleagues in Cabinet that Schedule IV to the
CPP Regulations be amended to exempt the employment of approximately 4 000
part-time, provincial appointees from pensionable employment. Since Ontario
and its agents have always considered these individuals to be in employment
that is not pensionable, the amendment codifies an existing practice.
[Emphasis added.]
[31]
In the Appellant’s view, Parliament’s
intention was not to exclude “part-time vice‑chairs” of the WSIAT, as
their employment had been considered to be pensionable in the past.
[32]
The Appellant argued that, in order to
avoid any injustice or punitive effect, the scope of the exception ought not to
be broadened to exclude employees working full‑time from participating in
the CPP.
[33]
On the basis of the “Regulatory Impact
Analysis Statement”, supra, the Appellant submitted that the amendment
of Schedule IV of the Regulations was intended by Parliament to have a
neutral effect and to codify an existing practice, and that it was not meant to
deprive taxpayers who were actually contributing to the Canada Pension Plan.
[34]
In support of her position, the Appellant
argued, referring to the broader context, that the purpose of the CPP and the Regulations
is to give the population access to a social program, subject to only a few
limited exceptions. Thus, considering her situation, there would be no legitimate
reason to broaden the exception found in Schedule IV of the Regulations
and to deprive her of the benefits of which she should be entitled to avail
herself.
[35]
Moreover, the Appellant raised the
argument that the “not in the full-time employment” criterion of item 1(b)
of Schedule IV of the Regulations does not specifically include taxpayers who,
while really working full-time, have nonetheless been appointed to a part-time
position.
[36]
Consequently, on the basis of the
interpretation set out above and the fact that she had contributed to the Canada
Pension Plan since her first appointment in 2007, the Appellant claimed that
the exception in question is not meant to apply to her situation, as it would
have a punitive effect, especially for the period at issue that is now being
looked at retrospectively.
Per diem remuneration
[37]
With respect to remuneration on a per
diem basis, the Appellant noted that the expression “per diem” is not defined
in the relevant legislation.
[38]
In her view, an hourly rate of pay is not
a per diem rate.
[39]
In that regard, she relied on the
directive issued by the Management Board of Cabinet (MBC) (Exhibit A‑2,
“Government Appointees Directive”),
which defines the expression “per diem” in the following way:
Payments for
part-time appointees must be on a per diem basis. Per diem is to be interpreted
as the amount payable for work periods in excess of three hours; when less than
three hours of work is involved, one half of the established per diem must be
paid.
[40]
In her testimony, the Appellant pointed
out that the per diem remuneration is mainly paid for hearings.
[41]
For the other items invoiced by the
Appellant (such as preparation, additional time for decision writing, interim
decisions, travel time and training), she was paid at an hourly rate (Exhibit A‑2,
“Summary of Per Diem Billing” and the WSIAT “Administrative Guideline:
Part-Time Vice-Chair Remuneration”).
[42]
On that basis, the Appellant argued that
her remuneration does not constitute a “per diem” as defined in the MBC’s
directive, as a per diem is not automatically paid to her for any period of
work exceeding three hours.
[43]
That was the basis on which the Appellant
distinguished her situation from that described in the guidelines established
by the MBC.
[44]
The Appellant further submitted that, to
the extent that I find that a broader view should be taken of the expression
“per diem” when it comes to determining whether the per diem remuneration criterion
has been met, the remuneration would have to have been paid solely or primarily
on a per diem basis. However, she claimed that this was not her situation, as
she is paid mainly at an hourly rate for her work at the WSIAT and that the
criterion is thus not met.
(2) The Minister’s Position
[45]
The Minister’s position is that this
appeal should be dismissed as the Appellant’s employment was excluded from
pensionable employment on the basis that it was excepted employment pursuant to
subsection 24(1) and Schedule IV of the Regulations.
[46]
The Minister argues that the Appellant
was appointed as a part‑time vice‑chair who was to be remunerated
on a per diem (calendar day) basis in accordance with the Order in Council
(Exhibit R‑1).
Per diem
remuneration
[47]
Regarding the per diem remuneration criterion,
counsel for the Minister indicated that item 1(b) of Schedule IV
of the Regulations does not refer to remuneration based on a yearly salary
(which was how the WSIAT’s full-time vice-chairs were remunerated).
[48]
The Appellant, as a “part-time vice-chair”,
did not receive a yearly salary. She was paid on a per diem basis (Exhibit
R-2). The Minister emphasized that the portion of the Appellant’s remuneration
categorized by the Tribunal as hourly remuneration was in fact a portion of the
per diem allowed for the position of “part-time vice-chair”. Thus, regardless of
how the WSIAT or its billing software characterized her remuneration, the
Appellant was in fact paid entirely on a per diem basis. Only for some tasks was
her remuneration processed on the basis of an hourly rate.
[49]
Finally, the Minister’s counsel pointed
out that nothing in the wording of item 1(b) of Schedule IV of
the Regulations indicates that, in order for the criterion to be met, the
Appellant needed to be paid entirely on a per diem basis.
Not in the full-time employment
[50]
With respect to the “not in the full-time
employment” criterion, the Minister took the position that the modern approach
to statutory interpretation should be applied to ascertain what was intended by
Parliament, that is, the relevant provision should be analyzed through a
textual, contextual and purposive approach.
[51]
The Minister argued that the number of
hours worked by the Appellant is irrelevant to the resolution of this issue under
item 1(b) of Schedule IV of the Regulations.
[52]
In support of this position, the
Minister’s counsel applied a textual approach, submitting that item 1(b)
must be interpreted in its entirety. In his view, the expression “not in the
full-time employment” should be read in conjunction with the expression “employment
by appointment” found at the beginning of that provision.
[53]
The Minister accordingly argued that, to
determine whether the Appellant was in the full-time employment of the WSIAT,
the Court needed to consider the terms of her appointment instead of the number
of hours she worked.
[54]
Referring to the contextual approach, the
Minister’s counsel stressed that, according to the CPP and the Regulations, it
is the prerogative of the Government in Council and the Government of Ontario
to decide which type of employment should be excluded from “pensionable employment”.
[55]
As to the purposive approach, the
Minister’s counsel also cited the above‑mentioned “Regulatory Impact
Analysis Statement” regarding the amendment of Schedule IV of the Regulations
(Exhibit A‑3) in support of the position that the purpose of the
amendment of Schedule IV at the request of the Government of Ontario, was
to except from pensionable employment, on the basis of the status of their
positions, the employment of part-time appointees.
[56]
To support this approach, the Minister’s
counsel cited as well section 12 of the Interpretation Act, which reads as follows:
Enactments deemed remedial
12 Every
enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects.
[57]
Finally, the Minister’s counsel outlined
the difficulty that could arise from the application of the item 1(b)
of Schedule IV of the Regulations if the method of analysis chosen were to
take into account the number of hours worked by a part‑time appointee,
given that, in this particular case, those hours are extremely variable since changes
to the work schedule are made “casually”, according to the wishes of the
appointees or their employer.
(3) Appellant’s
Rebuttal
[58]
In her rebuttal argument, the Appellant
replied to the argument of the Minister regarding the expression “not in the
full‑time employment” by saying that the expression “employment by
appointment” (in French « emploi à titre de ») only refers to one
aspect of the employment and should not colour the interpretation of the entire
provision.
[59]
In accordance with her interpretation,
the Appellant indicated that “employment by appointment” should rather be seen
as one separate criterion that has to be met in order for item 1(b)
of Schedule IV of the Regulations to apply, and this is distinct from the
full‑time employment criterion.
[60]
Lastly, the Appellant invoked a textual
argument based on the fact that if Parliament has used different expressions,
it is because they were not intended to have the same meaning. Thus, a
distinction needs to be made between the terms “appointment” and “employment”.
Analysis
Notion of
“Employment”
[61]
It was not argued by the parties that the
Appellant was in the employment of the WSIAT. Nevertheless, it is relevant for
the purpose of this appeal to consider the applicable governing principles.
[62]
The term “employment” is defined in
subsection 2(1) of the CPP as follows:
Employment means the state of being
employed under an express or implied contract of service or apprenticeship, and
includes the tenure of an office.
[63]
The expression “tenure of an office” is
directly relevant to the issue in this appeal. Hence, in order to determine if
the Appellant was engaged in employment with the WSIAT, it is necessary to
analyze the meaning of the term “office”, which is also defined in
subsection 2(1) of the CPP:
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;
[Emphasis added.]
[64]
The Appellant did not occupy during the
period at issue any position listed in the definition of “office”.
[65]
As a result, in order to establish if the
Appellant falls within the definition of “office”, it needs to be determined whether
she was entitled to a “fixed or ascertainable stipend or remuneration”.
[66]
In Minister of National Revenue v. Ontario, the Federal Court of
Appeal held that a “legal entitlement to a per diem rate of remuneration
established in advance is sufficiently ‘fixed or ascertainable’ to meet the
statutory test”.
[67]
In the present case, since the Appellant
was entitled to a per diem rate of remuneration, the fixed or ascertainable
remuneration criterion is met. Hence, as the Appellant had “tenure of an
office”, she was consequently also in the employment of the WSIAT.
“Pensionable Employment” & “Excepted Employment”
[68]
Given the conclusion that the Appellant
fits within the definition of “employment” in the CPP, it must now be determined
whether it was “pensionable employment” or “excepted employment”.
[69]
The expression “pensionable employment”
is defined in subsection 6(1) of the CPP as follows:
Pensionable employment
6(1) Pensionable employment is
(a) employment in Canada that
is not excepted employment;
(b) employment
in Canada under Her Majesty in right of Canada that is not excepted employment;
or
(c) employment
included in pensionable employment by a regulation made under section 7.
[70]
In the following sections of these
reasons, the requirements for “pensionable employment” and “excepted
employment” will be analyzed in light of paragraphs 6(1)(a) and
6(1)(c) of the CPP.
“Pensionable
Employment” under Paragraph (6)(1)(a) of the CPP
[71]
Under paragraph 6(1)(a) of
the CPP, pensionable employment is “employment in Canada that is not excepted
employment”.
[72]
What can be gleaned from this provision
is that any “employment” (within the meaning of subsection 2(1) of the
CPP) in Canada can be characterized as “pensionable employment”, unless it is
caught by one of the exceptions outlined in subsection 6(2) of the CPP,
which establishes what falls under the expression “excepted employment”.
[73]
In this appeal, the situation of the
Appellant, unfortunately for her, is covered by the exception enunciated in
paragraph 6(2)(i) of the CPP:
Excepted
employment
6(2) Excepted
employment is . . .
(i) employment by Her Majesty
in right of a province or by an agent of Her Majesty in right of a province.
[74]
Therefore, the employment of the
Appellant does not qualify as “pensionable employment” pursuant to
paragraph 6(1)(a) of the CPP.
“Pensionable Employment” under
Paragraph 6(1)(c) of the CPP
[75]
Under paragraph 6(1)(c) of
the CPP, employment may also be included in pensionable employment by a
regulation made under section 7.
[76]
As referred to in paragraph 6(1)(c)
of the CPP, the Governor in Council is given the power, under section 7 of
the CPP, to decide which “employment” he believes should be qualified as
“pensionable employment”.
[77]
The relevant provision for the purpose of
this analysis is paragraph 7(1)(e) of the CPP, which reads as
follows:
Regulations
respecting employment to be included in pensionable employment
7(1) The Governor
in Council may make regulations for including in pensionable employment . . .
(e) pursuant
to an agreement with the government of a province, employment in Canada by Her
Majesty in right of the province or by an agent of Her Majesty in right of the
province;
[78]
Paragraph 7(1)(e) of the CPP
gives the Governor in Council the power to determine, jointly with the
government of a province, which employment will be included in the definition
of “pensionable employment” in the context of “employment in Canada by Her
Majesty in right of the province”.
[79]
By the enactment of subsection 24(1)
and Schedule IV of the Regulations, the Governor in Council exercised with
regard to the province of Ontario the power discussed above:
Employment by a Province or an Agent of a
Province
24 (1) Employment
by Her Majesty in right of a province set out in Schedule III and employment by
an agent of Her Majesty in right of that province, except employment by an
agent thereof who is specified in Schedule IV and any employment by Her Majesty
in right of the province that is set out in that Schedule, is included in
pensionable employment.
[80]
What can be gleaned from subsection 24(1)
of the Regulations is that being employed by Her Majesty in right of a province
set out in Schedule III generally qualifies an individual as being in
“pensionable employment”, unless the employment is specifically excluded by
Schedule IV of the Regulations.
[81]
Ontario is one of the provinces set out
in Schedule III of the Regulations.
[82]
Therefore, the matter at the heart of
this appeal is whether the Appellant’s employment qualified as “excepted
employment” under item 1(b) of Schedule IV of the Regulations,
which was, as mentioned earlier, amended on December 5, 2013. That provision reads as
follows:
|
SCHEDULE IV
(Section 24)
|
ANNEXE IV
(article 24)
|
|
1 Province
of Ontario
|
1 Province d’Ontario
|
|
. . .
|
. . .
|
|
(b) Employment
by appointment of Her Majesty in right of Ontario, or of an agent of Her
Majesty in right of Ontario, as a member of an agency, board,
commission, committee or other incorporated or unincorporated body, who is
paid fees or other remuneration on a per diem basis, or a retainer
or honorarium, and who is not in the full-time employment of Her
Majesty in right of Ontario or of an agent of Her Majesty in right of
Ontario
|
b) Emploi à titre de membres d’une agence, d’un
conseil, d’une commission, d’un comité ou de tout autre organisme, doté ou
non de la personnalité morale, nommés par Sa Majesté du chef de l’Ontario
ou par un de ses mandataires, qui touchent une rétribution ou une
autre rémunération à la journée, des avances, des honoraires ou des
allocations, mais qui ne sont pas employés à plein temps de Sa Majesté du
chef de l’Ontario ou d’un de ses mandataires.
[Emphasis added.]
|
[83]
An examination of item 1(b)
of Schedule IV of the Regulations shows that a test comprising three criteria
needs to be met in order for it to be determined that the employment of the
Appellant was excepted from “pensionable employment”:
(1) The
Appellant must have been employed by appointment of Her Majesty in right of
Ontario as a member of an agency (or a board, commission, committee or other
incorporated or unincorporated body);
(2) The Appellant must
have been paid fees or other remuneration on a per diem basis, or a retainer or
honorarium; and
(3) The
Appellant must not have been in the full time employment of Her Majesty in
right of Ontario.
[84]
The use of the conjunction “and” in item 1(b)
is of great consequence in that it suggests that these three criteria should be
applied as cumulative requirements.
[85]
Consequently, as long as even one of
these criteria is not satisfied this appeal ought to be allowed since, in that
case, the Appellant would not fall within the exception set out in Schedule IV of the Regulations; hence she would qualify as having
“pensionable employment” for the purposes of the CPP, pursuant to
subsection 24(1) of the Regulations.
[86]
In the following sections, the three
criteria making up the test set out above will be analyzed in greater detail
and an analysis of the interpretive approach that ought to be taken will be
made.
Interpretive Approach
to the Provisions
[87]
Although it is clear that the provisions
of the CPP are intended to benefit workers, the restrictive interpretation of item 1(b)
of the Schedule IV of the Regulations suggested by the Appellant cannot be
applied, as a decision on that basis would be, in my view, inconsistent with
the intention of Parliament and would not allow a consistent, predictable and
fair application of the legislation.
[88]
In Canada Trustco Mortgage, supra,
at paragraphs 10 and 11, it is established that the interpretation of a statutory provision
requires a textual, contextual and purposive approach:
[10] It has
been long established as a matter of statutory interpretation that “the words
of an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament”: see 65302 British Columbia Ltd. v.
Canada, [1999 CanLII 639 (SCC),] [1999] 3 S.C.R. 804, at para. 50. The
interpretation of a statutory provision must be made according to a textual,
contextual and purposive analysis to find a meaning that is harmonious with the
Act as a whole. When the words of a provision are precise and unequivocal,
the ordinary meaning of the words play [sic] a dominant role in the
interpretive process. On the other hand, where the words can support more than
one reasonable meaning, the ordinary meaning of the words plays a lesser role. The
relative effects of ordinary meaning, context and purpose on the interpretive
process may vary, but in all cases the court must seek to read the provisions
of an Act as a harmonious whole.
[11] As a result
of the Duke of Westminster principle (Commissioners of Inland Revenue v.
Duke of Westminster, [1936] A.C. 1 (H.L.)) that taxpayers are entitled to
arrange their affairs to minimize the amount of tax payable, Canadian tax
legislation received a strict interpretation in an era of more literal
statutory interpretation than the present. There is no doubt today that all
statutes, including the Income Tax Act, must be interpreted in a
textual, contextual and purposive way. However, the particularity and detail of
many tax provisions have often led to an emphasis on textual interpretation.
Where Parliament has specified precisely what conditions must be satisfied to
achieve a particular result, it is reasonable to assume that Parliament
intended that taxpayers would rely on such provisions to achieve the result
they prescribe.
[Emphasis added.]
[89]
In Bell Express Vu, the Supreme Court
of Canada reiterated that the modern approach to statutory interpretation
should be applied:
[26] In Elmer
Driedger’s definitive formulation, found at p. 87 of his Construction
of Statutes (2nd ed. 1983):
Today there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
Driedger’s modern approach has been repeatedly cited by this Court
as the preferred approach to statutory interpretation across a wide range of
interpretive settings: see, for example, Stubart Investments Ltd. v. The
Queen, [1984 CanLII 20 (SCC),] [1984] 1 S.C.R. 536, at p. 578, per
Estey J.; Québec (Communauté urbaine) v. Corp. Notre-Dame
de Bon-Secours, [1994 CanLII 58 (SCC),] [1994] 3
S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998 CanLII 837 (SCC),] [1998] 1
S.C.R. 27, at para. 21; R. v. Gladue, [1999 CanLII 679 (SCC),] [1999] 1
S.C.R. 688, at para. 25; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65,
at para. 26; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per
McLachlin C.J.; Chieu v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 84, 2002 SCC 3, at para. 27. I note as well that, in the
federal legislative context, this Court’s preferred approach is buttressed by
s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which
provides that every enactment “is deemed remedial, and shall be given such
fair, large and liberal construction and interpretation as best ensures the
attainment of its objects”.
[90]
Furthermore, I cannot agree with the
argument of the Appellant that the amendment to Schedule IV of the
Regulations is not meant to apply to her, as it was intended to codify an
"existing practice” (i.e., that the employment of around 4,000 individuals
appointed to part-time positions has always been considered as not pensionable by
the province of Ontario)
which did not govern her employment at the WSIAT.
[91]
Her claim was that she was not covered by
the “existing practice” described above since her employment was treated as
pensionable in the past, or at least it had been until the amendment to
Schedule IV of the CPP was passed in 2013.
[92]
The Appellant also argued that her
interpretation of item 1(b) of Schedule IV of the Regulations
should be accepted by this Court, otherwise its application could have a
punitive effect.
[93]
To this, I answer that the Tax Court of
Canada is bound by the legislation in force at the time the issue arose and that
the Tax Court is not a court of equity. The issue before this Court is whether
the Appellant’s employment is excepted under item 1(b) of
Schedule IV of the Regulations, and this must be decided on the basis of
the interpretation of that provision and its application to the Appellant’s
situation.
If the result of the application of a legislative provision is unfair, this
Court unfortunately has no power to amend the legislation. In Chaya v. The
Queen,
at paragraph 4, Rothstein J.A. said:
[4] . . .
The Court must take the statute as it finds it. It is not open to the Court to
make exceptions to statutory provisions on the grounds of fairness or equity.
If the applicant considers the law unfair, his remedy is with Parliament, not
with the Court.
[94]
This was reiterated by the Federal Court
of Appeal in MacKay v. The Queen.
[95]
Now, I will address each criterion
separately.
First
Criterion: Member of an Agency
[96]
The first criterion was not argued by the
parties at the hearing.
[97]
However, to be precise, the Government of
Ontario website shows that the WSIAT is listed as one of its agencies
(Exhibit A-3, Government of Ontario, Public Appointments Secretariat, “All
Agencies List”).
[98]
Therefore, as the WSIAT can be
characterized as an “agency” for the purposes of item 1(b) of
Schedule IV of the Regulations, the first criterion is met because the
Appellant was in the employment of the WSIAT and has been a member of that tribunal
since her appointment by Order in Council (see Exhibits R‑1 and R‑2).
Second
Criterion: Paid Fees on a Per Diem Basis, or a Retainer or Honorarium
[99]
It was not contested by the parties at
the hearing that the Appellant has never received either a retainer or an
honorarium from the WSIAT.
[100]
Thus, this analysis will focus solely on
the effect of being remunerated on a per diem basis.
[101]
As the Appellant correctly pointed out,
the CPP and the Regulations contain no definition of the expression “per diem”.
[102]
In Black’s Law Dictionary, “per diem” is defined as
follows:
per diem, adj.
& adv. Based on or calculated by the day.
per diem, n.
1. A monetary daily
allowance, usu. to cover expenses; specif., an amount of money that a worker is
allowed to spend daily while on the job, esp. on a business trip.
2. A daily fee; esp., an
amount of money that an employer pays a worker for each day that is worked.
[103] The Concise Oxford English Dictionary
defines the expression “per diem” in the following way:
per diem, adv. & adj. for each day.
n. an
allowance or payment made for each day.
[104] From these definitions it is clear that the expression “per diem”
refers to a remuneration paid for a day of work.
[105]
As stated earlier, the Appellant did not dispute
that she was, at least partially, paid on a per diem basis.
[106]
Hence, the question that has to be
answered for the purpose of this appeal is whether the fact that she was
apparently paid for some of her functions on an hourly basis is sufficient to avoid
the application of item 1(b) of Schedule IV of the
Regulations.
[107]
The Appellant argued that, for this
criterion to be met, it is required that she have been paid exclusively (or at
least mainly) at a per diem rate.
[108]
The Minister’s counsel argued that
nothing in the wording of that provision suggests that the taxpayer must be
solely or even mainly paid on a per diem basis.
[109]
I do not believe that I have to decide
this question in order to resolve the issue here. I agree with the Respondent
that the hourly rate was merely the conversion of the per diem rate allocated
to the part‑time vice‑chair for all the functions that she had to
perform. The Order in Council states that appointees who hold a part‑time
appointment are entitled to a per diem remuneration (Exhibit R‑1). Clearly,
the Appellant’s billing was done on a per diem basis as the hourly rate
indicated in the samples filed as Exhibit A‑2 is derived from the
per diem to which she was entitled in her part‑time position. I therefore
find that the Appellant meets this criterion.
Third Criterion: Not in the Full-Time
Employment of the WSIAT
[110]
The CPP and the Regulations contain no
definition of the expression “full-time employment”.
[111]
During the hearing, the Minister admitted
that the Appellant was in fact working on a full-time basis.
[112]
As stated earlier, the position of the
Minister is that the expression “not in the full-time employment” ought to be
construed in conjunction with the opening words of the provision, which contain
the expression “employment by appointment”. In the Minister’s view, it is the
terms of the Appellant’s appointment that need to be considered, not the number
of hours she worked.
[113]
The Appellant took a different view by
suggesting to the Court that the correct way to apply item 1(b) of Schedule IV
of the Regulations is to look at her actual workload at the WSIAT.
[114]
As much as I sympathize with the
Appellant and as much as I believe her testimony at the hearing that she was
actually working full-time, I cannot accept her position because it does not
reflect, in my view, the correct interpretation of item 1(b) of the
Schedule IV of the Regulations.
[115]
I considered Town Properties and Woessner, the two decisions referred
to by the Appellant to support her argument that this Court should analyze the
reality of her workload as a factor to be taken into account in determining whether
she was in the full-time employment of the WSIAT or not. In those cases, reference
is made to, among others, The Dictionary of Canadian Law, in which a distinction is
made between being a “full‑time employee” and being in “full‑time
employment”.
[116]
The definition of full‑time
employee refers to the number of hours an employee works. The expression “full‑time
employment”, on the other hand, refers to an employee who is normally required
to work a minimum number of hours prescribed by the person having authority to
establish the hours of such employment.
[117]
Here, while the WSIAT may have had some
expectations of its “part‑time vice‑chairs”, it is clear from the
Order in Council and from the Appellant’s testimony that the WSIAT could not
require the Appellant to work in the same manner and under the same conditions as
a full‑time appointee. The Appellant made known her availability and the WSIAT
had to respect that.
[118]
Under the Order in Council, the Appellant
was clearly appointed on a part‑time basis. The WSIAT could not have
required the Appellant to work full-time. Even if the WSIAT did encourage its
“part-time” vice-chairs to work more or even to work full‑time, still it
was not mandatory for the Appellant to work on a full-time basis, as she herself
testified at the hearing.
[119]
Thus, the decision to work full-time was
one the Appellant took completely voluntarily.
[120]
I agree with the Respondent that, for the
purpose of determining whether the “not in the full‑time employment”
criterion has been met, it is more consistent with Parliament's intention that
one consider the terms of the Appellant's appointment rather than the number of
hours she actually worked.
[121]
This position is also supported by the “Regulatory
Impact Analysis Statement” (Exhibit A‑3), in which the types of
employment to be excepted from pensionable employment are described in the
following way:
Description
Schedule IV to
the CPP Regulations is amended to add a description of the types of
employment that the Government of Ontario has requested be exempted from
pensionable employment. The types of employment relate to
individuals who are employed by appointment of Her Majesty in right of Ontario
or of one of her agents as part-time members of an agency, board,
commission, committee or other incorporated or unincorporated body and who are
paid fees or other remuneration on a per-day basis, or are in receipt of a
retainer or honorarium.
[Emphasis added.]
[122] From this excerpt
it can be seen that the “not in the full-time employment” criterion listed in
the provision is reflected in the words “part-time members”. This reinforces
the interpretation that the nature of the appointment of the Appellant (by the Order
in Council) is the element that needs to be considered to determine if this
criterion has been met, and not the number of hours she actually worked on a
voluntary basis.
[123]
In light of the reasons set out above, it
is very doubtful that the intention of Parliament was that qualification under item 1(b)
would depend on a discretionary and casual power (such as the power to modify
work schedules and workload) exercised by mutual agreement outside the scope of
the Order in Council. Such an interpretation would lead to an inconsistent
application of the legislation and would be in contradiction with the
interpretive approach adopted by the Supreme Court of Canada.
[124]
The use of the term “part-time” in the
Order in Council is of some significance since it is not a simple qualifier
having no particular effects, otherwise all appointees would be remunerated in the
same way and would enjoy the same benefits as full-time appointees (notably
paid vacation, an assigned office and the option to participate in the WSIAT’s
pension plan), which, in reality, is not the case for the part‑time
appointees.
[125]
On the facts that were presented at the
hearing, it is clear that an individual who is appointed to the WSIAT will receive
the benefits that are associated with the type of position to which he or she has
been appointed.
[126]
In the end, I find that it is the terms
of the Order in Council that must be analyzed to determine whether or not the
Appellant can avail herself of the benefits provided under the CPP and the
Regulations.
[127]
In this regard, the Appellant did occupy
during the period at issue (and still does) the position of “part-time vice-chair”
(Exhibit R‑1).
[128]
Therefore, in view of the
characterization of the Appellant’s position as “part‑time”, she was “not
in the full-time employment of her Majesty in right of Ontario”. Consequently, the
“not in full‑time employment” criterion to be considered in the present analysis
has been satisfied.
Conclusion
[129]
For the reasons set out above, the appeal
is dismissed as the criteria stated in item 1(b) of Schedule IV
of the Regulations have all been met such that the employment of the Appellant
with the WSIAT was “excepted employment” for the purposes of the CPP and the
Regulations.
Signed at Ottawa, Canada, this 3rd
day of February 2017.
“Lucie
Lamarre”
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