MacKay J.:—These reasons concern judgment reached in regard to the four actions set out in the styles of cause which, at the request and on consent of counsel for the parties, were tried on common evidence. Each action is an appeal from a decision of Goetz J. of the Tax Court of Canada, whereby he dismissed the appeal of each taxpayer against an assessment of income tax by the Minister of National Revenue. The Tax Court decisions in relation to these appeals are reported (See: Small et al. v. M.N.R., [1990] 2 C.T.C. 2286, 89 D.T.C. 663, Zylstra Estate et al. v. M.N.R., [1990] 1 C.T.C. 2035, 89 D.T.C. 657).
When the Tax Court considered the appeals the parties relied upon testimony of each of the taxpayers McRae, Small and Vandervennen, and that of Dr. Zylstra’s widow, and for interpretation of the Act, they relied upon its terms, jurisprudence and dictionary definitions. In this Court in these actions additional evidence of expert witnesses was adduced by each of the parties, concerning the meaning within religious communities of a number of the terms used in the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71- 72, c. 63) (the "Act") provision here in issue, paragraph 8(1 )(c).
That evidence was provided on behalf of the plaintiffs by testimony from Dr. McRae, one of the plaintiffs, now chancellor of the Ontario Bible College, who testified as an expert as well as a material witness, and from Dr. Ian S. Rennie, vice-president and academic dean, professor of church history of Ontario Theological Seminary. For the respondent expert testimony was adduced from Rev. Francis G. Morrisey, OMI, professor of canon law at Saint Paul University, Ottawa, and a judge of the (Ecclesiastical) Canadian Appeal Tribunal, and from Professor Donald Wiebe, professor of Trinity College and former associate director of the Centre for Religious Studies, School of Graduate Studies, in the University of Toronto.
Paragraph 8(1 )(c) of the Act, as amended, 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 the taxpayer is a member of the clergy or of a religious order or a regular minister of a religious denomination, and is in charge of, or ministering to a diocese, parish or congregation, or engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination, an amount equal to
(i) the value of the residence or other living accommodation occupied by him in the course of or by virtue of his office or employment as such member or minister so in charge of or ministering to a diocese, parish or congregation, or so engaged in such administrative service, to the extent that such value is included in computing his income for the year by virtue of section 6, or
(ii) rent paid by him for a residence or other living accommodation rented and occupied by him, or the fair rental value of a residence or other living accommodation owned and occupied by him, during the year but not, in either case, exceeding his remuneration from his office or employment as described in subparagraph (i).
There is no issue concerning subparagraphs (i) and (ii); the issues in each case concern the application of the introductory words of paragraph (c) which sets out the qualifications for the deduction here claimed in each case.
In each case the Minister’s assessment, from which the appeal is taken, had disallowed a deduction claimed as a residence allowance, for a clergyman’s residence, under paragraph 8(l)(c) of the Income Tax Act.
While there is no agreed statement of facts in any of these appeals there is no disagreement about the basic facts of each case. The differences between the parties concern the application of paragraph 8(1 )(c) in each case. The four plaintiffs, and particulars of their respective claims, are as follows.
(1) The estate of the late Bernard Zylstra, in action T-494-90, claims on behalf of Bernard Zylstra who was president of the Institute for Christian Studies ("ICS") in the year 1985, a year for which his claim to deduct $7,000 as a residence allowance was disallowed. It is claimed that he satisfied the requirements of paragraph 8(l)(c) of the Act because he was a member of a religious order, the Institute for Christian Studies, and was engaged in full-time administrative service by appointment as president of and by that order. Dr. Zylstra was deceased at the time his appeal was heard by the Tax Court. His widow testified at the hearing of his appeal in that Court, as to his use of the residence in question for 1985, and by agreement a transcript of her evidence then given was admitted as an exhibit in the trial of this matter before me.
(2) The estate of the late Jacob Small, in action T-485-90, claims in lieu of Jacob Small, who died after this appeal was initiated. He was director of Alumni of Ontario Bible College and Ontario Theological Seminary ("OBC"), an office he held in 1986 when he claimed a deduction as a residence allowance in an amount of $9,000, under paragraph 8(1 )(c) of the Act, an amount disallowed by the Minister’s assessment. An ordained minister of the Associated Gospel Churches of Canada who was committed to the statement of faith of OBC, his claim to a residential allowance was based on his claim to membership in a religious order and that he was engaged exclusively in full-time administrative service by appointment of that religious order, 1.e., the OBC, or his claim to be a member of a religious order or a member of the clergy or a regular minister of a religious denomination ministering to a congregation, comprised of the alumni of the college. A transcript of his testimony before the Tax Court was admitted by agreement, as an exhibit, at trial of this action.
(3) William J. McRae, the plaintiff in action T-496-90, was formerly president of the Ontario Bible College and Ontario Theological Seminary, an office held throughout 1986. For that year he claimed a deduction from income for tax purposes as a residence allowance under paragraph 8(1 )(c) in the amount of $13,500 which was disallowed by the Minister’s assessment. In his appeal it is urged that as a senior officer, as the president, who signed the College’s statement of faith, he was a member of a religious order, the OBC, and was engaged exclusively in full-time administrative service by appointment of the order, and further that he qualified for a deduction as a member of the clergy or of a religious order or as a regular minister ministering to a congregation, comprised of the College students, faculty, senior officers and staff.
(4) The plaintiff Robert E. Vandervennen, in action T-497-90, appeals the decision disallowing his appeal from the Minister’s assessment which had disallowed his claim to a deduction under paragraph 8(1 )(c) for a residential allowance in an amount of $7,200 for 1985. In that year he was director of educational services of the ICS, an office in which he was engaged in full-time administrative service. His claim is that the members of the ICS comprise a religious order and that he qualifies for the residence allowance as a member of a religious order engaged exclusively in full-time administrative service by appointment of that order.
Thus, the claims concern the year 1985 in the cases of the late Bernard Zylstra and Mr. Vandervennen, both then engaged in full- time service of the ICS. Their claims are that both were members of a religious order and both were engaged in full-time administrative service by appointment of that order, the ICS. In the cases of Dr. McRae and the late Jacob Small, the claims concern the year 1986 and the deduction claimed is on the basis of membership in a religious order, 1.e., the OBC, and full-time engagement in administrative service by appointment of that order, and also that each was a member of the clergy, or of a religious order or a regular minister of a religious denomination, in charge of or ministering to a congregation, comprised of the OBC students, faculty, and staff in the case of Dr. McRae, and of its alumni in the case of the late Jacob Small.
The defendant, Her Majesty the Queen, does not agree that the institutions which the respective plantiffs served, 1.e., the OBC in the case of Dr. McRae and the late Mr. Small, and the ICS in the cases of the late Dr. ZyIstra and Mr. Vandervennen, are, in either case, a religious order, or that their respective members, or students, staff and faculty or alumni comprise a religious order. In each case, the defendant’s position is that the taxpayer concerned was not, in the year in question, a member of a religious order, or engaged exclusively in full-time administrative service by appointment of a religious order. Moreover, in the cases of Dr. McRae and the late Mr. Small, while it is agreed that the late Mr. Small was a member of the clergy that status 1s not accepted for Dr. McRae, and it is not agreed that either was a regular minister of a religious denomination and ministering to a congregation.
In the application of paragraph 8(1)(c) counsel for the parties agree that for entitlement to a deduction under that provision a taxpayer must qualify both by status and by function. For the plaintiffs it is submitted that the two requirements are separate, though both must be met. For the defendant it is submitted, that read in its entirety, paragraph 8(1)(c) requires both a status or office and the performance of functions that are to be performed only by persons recognized as qualified by reason of their status. The distinction is said to have significance particularly in relation to certain claims advanced on behalf of Messrs. McRae and Small.
In these cases, for the late Dr. Zylstra and for Mr. Vandervennen it is submitted they meet the status or office requirement by being members of a religious order, 1.e., ICS. For Dr. McRae and Mr. Small it is urged that they meet the status test as members of a religious order, 1.e., OBC, or alternatively as a member of the clergy or as a regular minister of a religious denomination. For all four plantiffs it is said they qualify by function for each was appointed by a religious order and was engaged exclusively in full- time administrative service, and in the alternative for Dr. McRae and Mr. Small that each was ministering to a congregation.
I turn first to some general principles of interpretation applicable to the statutory provision here in question. I propose then to describe briefly some features of significance of the institutions concerned, OBC and ICS, and whether either can be considered a "religious order", and thus whether the plaintiffs can be considered members of a "religious order" within the meaning of that term in paragraph 8(1 )(c) of the Act. In regard to the plaintiff Dr. McRae and the late Mr. Small, I then consider the alternative basis for their claims to a deduction that each was a "member of the clergy" or "a regular minister of a religious denomination", "ministering to a congregation". None of the terms here quoted is defined by the Act itself and thus the Court’s task is to interpret those terms as used in the statute and in light of the evidence adduced by the parties.
General principles of interpretation applicable
It is trite law that the words of the Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of Parliament (Stubart Investments Ltd. v. The Queen, [1984] S.C.R. 536, [1984] C.T.C. 294, 84 D.T.C. 6305 (S.C.R. 576-78, C.T.C. 315-16, D.T.C. 6322-23).
The history of the statutory provision may be indicative of legislative intent. Here, the predecessor provisions to paragraph 8(1 )(c) were dealt with by Parliament in 1949 and 1956 and it is clear that the Ministers responsible at those times indicated that the deduction was not intended to be applicable in the case of all clergymen or ministers, that orginally it was to apply for those whose regular occupation was the ministry concerned with full-time religious or pastoral activities. When extended to include those engaged exclusively in full-time administrative work by appointment of a religious order or denomination, the suggestion that it be extended to clergymen teaching on the staff of theological colleges, in part because they may also be engaged frequently in pastoral work, was rejected. (Hansard (House of Commons), November 10, 1949 pages 1633-34; Id., July 31, 1956 pages 6775-77.)
The general scheme of the Act is to preclude deductions for personal and living expenses except for those specifically provided. Consistent with this, the provisions for deductions tend to be construed narrowly. In light of that tendency I am persuaded that the purpose of paragraph 8(1)(c) is to provide a deduction only in those cases where the taxpayer qualifies by reason of his status or office and discharges responsibilities as defined, which are ordinarily associated with that status or office.
The institutions concerned as "religious orders "
The Ontario Bible College and Ontario Theological Seminary (the "College" or "OBC") is a non-profit corporation established by special act of the Ontario Legislature (The Ontario Bible College and Ontario Theological Seminary Act, S.O. 1982, c. 79). By that statute its objects are established, as follows.
3(1) The objects of the College are
(a) to train men and women for Christian service at home and abroad in the knowledge and practical use of the Bible on an interdenominational basis; and
(b) to develop Christian character and maturity through sound biblical and theological instruction, and through the practice of a devotional life, both personal and corporate, through Christian service opportunities and through a thorough understanding of man and contemporary issues in our society from a Christian perspective.
The act of incorporation provides for governance of OBC by members, a board of governors, officers, a president’s cabinet and the faculty. The Bible College, and its predecessors by other names, marks the centennial year of its founding in 1994. With a full-time faculty of 14 and some 550 students, undergraduate certificate programmes are offered by the College, as are bachelor’s degrees in theology, religious education, religious studies, and in sacred music. The Ontario Theological Seminary, with a full-time faculty of 15 and more than 500 students, offers graduate programmes primarily at the masters’ degree level, though the College is authorized by statute to offer doctoral degrees also. OBC is accredited by the American Association of Bible Colleges and authorized by the Evangelical Teacher Training Association to grant its diplomas and certificates to those who qualify.
Each of the College and the Seminary have a mission statement which sets out as the institution’s own description of the purposes of its undergraduate college and its graduate seminary. These statements are
Ontario Bible College is an evangelical, multi-denominational Bible College committed to biblical excellence in the fulfillment of the Great Commission of our Lord and Saviour, Jesus Christ, by establishing and educating men and women in the faith, and equipping them for service in the Kingdom of God.
and
Under the authority of Scripture and in the power of the Holy Spirit, OTS is dedicated to the graduate theological training and spiritual development of men and women committed to the service of Jesus Christ, and the building up of His church, to the glory of God.
OBC in its undergraduate and graduate programmes serves students from a variety of church denominations, protestant Christian and evangelical in orientation. Students and faculty are expected to share in experience of the OBC community and its religious and community life and to conduct themselves in accord with a code of conduct based on a concept of moderation.
Members of the board of governors, senior officers, and faculty of OBC are expected to subscribe to a doctrinal statement, that 1s, a statement of faith adopted for OBC, based upon the Bible which is considered as absolutely authoritative and which is the basis of the OBC teaching programme. Faculty members are expected to sign this statement of faith yearly, as a testament of their personal agreement, just as they also sign annually a faculty contract.
The other institution here concerned, ICS, was also incorporated by special act of the Ontario Legislature, the Institute for Christian Studies Act, 1983, c. 25. Its objects and purposes as established by section 3 of that
Act are:
(a) to operate and maintain an institution for post-secondary education and research in all areas of learning based on the Scriptures of the Old and New Testaments and consistent with the basis and educational creed of the Institute;
(b) to advance scholarship in all areas of learning so as to exhibit the coherence of all reality in Christ and in this way to equip people to direct their lives by the Gospel; and
(c) to sponsor at other institutions lectureships, courses, teaching programs and research projects.
The incorporating statute provides for governance of the ICS by a board of trustees, and sets out its powers; it provides for a senate and its powers, for a president, and for membership in the Institute. The basis and educational creed of the ICS, referred to in the statutory purposes of the Institute, are included in a statement to be subscribed to by all members, including the board, senior officers and faculty, which statement also includes a preamble and a stated purpose. The latter, the stated purpose, is set out, as follows:
The purpose of the association shall be to undertake or promote whatever activities it shall deem conducive to the development of scripturally directed learning and scholarly enterprise, and particularly to establish, control and develop a Christian University, and in these ways to equip men and women to bring the Word of God in all its power to bear upon the whole of life.
ICS offers certificate, masters’ and doctoral studies, the last in cooperation with other institutions. Though there are no formal ties with the Christian Reform Church, members of that church are the majority of members and individual supporters of ICS and some local congregations within that church provide financial support for the Institute, but ICS also serves other denominations and has support from other protestant denominations and their members.
For the plaintiffs it 1s urged that the term "religious order" within paragraph 8(1 )(c) is not intended to mean a religious order, congregation or society conforming to those known in the Roman Catholic church traditionally until 1983. In that year changes in canon law abandoned the traditional terminology so that the term "religious order", admitted even by the plaintiffs’ expert witnesses to have originated in the Roman Catholic church, is no longer used, and former orders, now "institutes", are not known any longer, at least formally, by the name "orders" even in the Roman Catholic church.
Rather, it is urged by the plaintiffs that there are a variety of criteria for identifying a religious order as intended within paragraph 8(1 )(c) and a group may constitute such an order if it meets most if not all of these criteria. It is submitted that the institutions here, the OBC and the ICS, do so qualify in light of the following criteria, most of which the institutions meet.
In each case there is a group of adult persons who comprise the order; in the case of the OBC the group is made up of the board of governors, the senior officers and the faculty, in the case of the ICS the group is the board of trustees, the senior staff and the faculty. Within each of those groups the following criteria are applicable.
A. The members work together with a sense of religious community, many on a full-time basis, to achieve one or more predominantly but not necessarily exclusively religious purposes.
B. The members make vows or other covenants in support of their religious work, in the case of OBC by subscription to the faculty contract and the statement of faith, and in the case of the ICS by subscription of its members to its educational creed.
C. Both groups undertake their work as a religious calling.
D. Members of both groups generally expect a long-term commitment to their work continuing at the institution-at least in the case of the faculty, even though in both cases their contract terms are reviewed, annually in the case of OBC and every second year in the case of ICS.
E. Certain members of each group, faculty and senior staff, are said to make a financial sacrifice, by reason of salaries which are substantially lower than salaries for comparable work in publicly-supported post-secondary educational institutions.
F. All members of each group agree to basic rules of moral conduct, in the case of OBC those rules are said to be biblically based, including chastity outside marriage, and in the case of the ICS the rules are based on shared expectations of moral conduct.
G. In each case the members subscribe to a written statement of purpose and belief, in the case of OBC its doctrinal statement and in the case of ICS its educational creed.
H. Finally, in each case the group is said to be recognized for its performance of religious functions, in the case of OBC by the evangelical Christian community in regard to the training of ministers for evangelical churches, and in the case of ICS by the Christian Reformed Church community in regard to advanced Christian education and research.
The plaintiffs refer to Revenue Canada Interpretation Bulletin IT- 141, dated December 31, 1973, with reference to paragraph 8(1 )(c) where the term "religious order" is defined as meaning
a group of people bound by the same religious, moral and social regulations and discipline, such as an order of monks.
That is said to be consistent with the general terms inferred from dictionary definitions of the words "order" and "religious". Thus, for example, "order" is defined in the Oxford English Dictionary on Historical Principles, Vol. VII, (Oxford: the Clarendon Press 1909) at pages 181-82, inter alia, as
A body or society of persons living by common consent under the same religious, moral, or social regulations and discipline; especially a. A monastic society or fraternity: as an order of monks or friars, the Benedictine or Franciscan order. Sometimes applied to the rule or distinguishing constitution of such a fraternity, or to monasticism as an institution.
"Religious” is defined by the Oxford English Dictionary, Vol. 1 (Oxford: (Clarendon Press, 1973)) page 1697, as an adjective, meaning
1. Imbued with religion; exhibiting the spiritual or practical effects of religion; pious, godly. 2. Of persons: Bound by monastic vows; belonging to a religious order. ME. b. Of things, places, etc: Of, belonging to, or connected with, a monastic order. ME....
The latter definition is substantially reflected in the Canadian Living Webster Encyclopedic Dictionary of the English Language, Vol. II (Chicago: The English Language Institute of America, 1974) page 810.
In my view these definitions, including that offered by the interpretation bulletin, suggest only in very general terms the criteria for determining what is intended by "religious order” as those words are used in paragraph 8(1 )(c). They do not, for example, assist in determining whether the criteria suggested by the plaintiff are appropriate.
The evidence offered by experts at trial is of considerable assistance. All four expert witnesses, including Dr. McRae and Dr. Rennie for the plaintiffs, were agreed that the term "religious order" originally was understood, within the Christian religion, to refer to those orders established under canon law within the Roman Catholic church. Father Morrisey discussed the nature of such an organization and its key characteristics, though the term no longer has a specific meaning under canon law, since, as earlier noted, it. was replaced in 1983. In a somewhat broader context, Professor Wiebe testified that the phenomenon of "religious orders" is found not only in the Roman Catholic church but also in the Eastern Orthodox church and in modern Anglican and even protestant (e.g., Lutheran and Reformed) traditions. That phenomenon is marked by common characteristics, when a group of persons, distinct from within a larger religious community, live under a set of rules, bound by vows to observe not only the general precepts of their church, but also vows of chastity, poverty and obedience, including agreement to a communal life unless permitted to live otherwise.
It is interesting that neither Dr. McRae nor Dr. Rennie testified that OBC, the institution here claimed by plaintiffs McRae and Small to constitute a religious order, was an order similar to traditional orders in the Roman Catholic church, or that the basic characteristics outlined as criteria of a religious order by Professor Wiebe and Father Morrisey were met by the OBC. While counsel for the plaintiffs urged that it was inappropriate to adopt the concept proposed by defendant’s counsel, that is, that the "template" for a "religious order" should be that term as formerly used in the Roman Catholic church, nevertheless, as I understood their evidence Drs. McRae and Rennie, spoke of OBC, and by inference ICS, as the counterparts within the context of the evangelical protestant church, or that of the Christian Reform church for ICS, of the traditional Roman Catholic religious order. In other words, even the experts for the plaintiffs used the former religious orders of the Roman Catholic church as "the template" for their development of criteria for the equivalents in their religious traditions.
The doctrinal statement of OBC and the educational creed of ICS, to which their respective members subscribe, are important documents in the relationship of individuals to each of the institutions, and of the interrelations of individuals within the life of each institution. Yet, in reliance upon the expert testimony of Father Morrisey and Professor Wiebe I conclude that these declarations are not in substance similar to the vows made by members of a traditional religious order.
There are two principal considerations which lead me to conclude that neither OBC nor ICS is a "religious order" within the intention of paragraph 8(1)(c). The first is that there is no expression of faith or of religious purpose of either institution apart from the educational purpose of each, that would mark the institution, and its members as distinct from the churches or denominations that each serves. That would appear to me, from dictionary definitions and from the testimony particularly of Professor Wiebe, to be a necessary quality of a "religious order". If it were otherwise the order would not be easily distinguishable from other institutions serving the general religious purposes of the churches concerned.
The second consideration is that both OBC and ICS have their primary purposes in education. That is offered with a particular religious emphasis and to serve the denominations which are supportive of them by education and training of persons from those denominations in spiritual and religious life, and for leadership through teaching and example. Those are noble and important purposes, but in my view they are oriented, quite properly for each institution, to education. They are not religious purposes in the sense pursued by a religious order, though some religious orders may also pursue educational purposes as subordinate to their primarily religious purpose of service to their God through worship, prayer and devotion. It was for generally similar reasons that Urie J. determined a Rutterite community could not be considered a religious order (1.e., because its objects and purposes were not exclusively religious, but also included farming), within then subsection 27(2) of the Act (now subsection 110(2)) which permits a member of a religious order who has made a vow of perpetual poverty to deduct from his income for tax purposes the amount of his earned income if it was paid to the order. (See: Wipf et al. v. M.N.R., [1973] C.T.C. 761, 73 D.T.C. 5558 at 5566 (F.C.T.D.); reversed on other grounds, Wipf et al. v. The Queen, 75 D.T.C. 5034 (F.C.A.).)
I conclude that neither OBC nor ICS is a religious order within that term as it is used in paragraph 8(1 )(c) of the Act. Thus none of the plaintiffs is a member of a religious order by reason of his membership in, or association with OBC or ICS, and none of them can be said to be "engaged exclusively in full-time administrative service by appointment of a religious order", a basis on which each claimed to be qualified by reason of his functions at OBC or at ICS.
Since that is the only basis advanced for the appeal by the action taken in relation to Dr. Zylstra by his estate and by the action of Mr. Vandervennen, each in relation to the assessment of income for tax in 1985, those two actions will be dismissed.
I note that the Minister’s assumptions of fact underlying the tax assessments, as set out in each of the statements of defence in the actions of Dr. McRae and Mr. Small, included the assumptions that OBC was not a "religious denomination" and that the plaintiff in each case was "not engaged in full-time administrative service by appointment of a...religious denomination". That position was supported in argument, perhaps for completeness, by counsel for the defendant, but no claim was advanced by either Dr. McRae or on behalf of Mr. Small that would contest these assumptions of the Minister. For the record no such claim was raised by Mr. Vandervennen or on behalf of Dr. Zylstra. It is unnecessary to deal with this issue in any of the cases here considered.
In their respective actions Dr. McRae and Mr. Small did raise other grounds, and I now turn to those.
A "member of the clergy", 1! "a regular minister of a religious denomination and in charge of or ministering to a congregation"
In relation to each of Dr. McRae and Jacob Small, the defence to their respective actions includes assumptions of the Minister of National Revenue in assessing the plaintiff. These include the assumption that, in each case, "the plaintiff was not a member of the clergy or of a religious order or a regular minister of a religious denomination and in charge of or administering to a diocese, parish or congregation...". Those words, of course reflect alternative qualifying bases for claiming a deduction under the introductory words of paragraph 8(l)(c) of the Act.
Those qualifications are said to be met by both Dr. McRae and Mr. Small, claims disputed by the defendant both in regard to the status requirement and the functional requirement specified in the paragraph. Since, as I have already determined OBC was not a religious order, neither of these taxpayers could be considered to be a member of a religious order by reason of his membership or association with OBC.
The defendant urges that Dr. McRae is not a member of the clergy within paragraph 8(1)(c) since he was not ordained. Within his church, the Brethren Assembly, he was acknowledged and had status as a commended worker, a status recognized by ceremony and by unanimous support of the elders of three congregations. That status is said by counsel for the plaintiffs to be a clergyman within his denomination, his church, the Brethren Assembly. Before his appointment to OBC he had served in leadership of a number of congregations of his church. There is no dispute that the Brethren Assembly is a denomination within paragraph 8(1 )(c), as determined by Goetz J. when this matter was heard at the Tax Court, but the defendant, relying upon dictionary definitions and the expert testimony of Father Morrisey and Professor Wiebe, urges that his status as commended worker within his own denomination does not mean he is a member of the clergy.
I am persuaded that the words "member of the clergy" as used in the provision here in question must have the meaning supported by dictionaries, and that referred to even by counsel for the plaintiffs, as one ordained and set apart for special religious functions, a position generally contrasted with that of the laity, that 1s, the general church membership. In the case of the Brethren Assembly there is no ordination and, despite the recognized position of "commended worker", all members are of equal status. In a formal sense no one has a position of greater significance than others and Dr. McRae cannot be considered a "member of the clergy".
In the case of Mr. Small, he was an ordained minister of the Associated Gospel Churches and had served at three churches before joining OBC. In my view, there can be no real dispute and it was conceded at the hearing that he was a member of the clergy. That requirement of status was met and the Minister’s assumption, insofar as it was based on Mr. Small not being a member of the clergy, was simply wrong.
For both Dr. McRae and Mr. Small it is contended that each is a "regular minister of a religious denomination", a view the defendant resists on the ground that "regular minister", for purposes of paragraph 8(1)(c) of the Act, means a person recognized as having a distinct status for spiritual purposes within a religious denomination whose function or office is to provide that spiritual leadership. In my view, this tends to fuse the status and functional requirements here set out if one is to qualify for a deduction related to residence costs. It is, however, unnecessary to determine the matter; though if that were required, in my view, Dr. McRae would qualify by status as a "regular minister of a religious denomination" by reason of his status as a commended worker of the Christian Brethren Assembly. On attaining that commendation he thereafter worked on a full-time basis with successive congregations of Christian Brethren. Within that denomination voluntary service of members in leadership within the church is expected and encouraged, but a commended worker committed to full-time service in a congregation is paid for his work, and only a commended worker is paid. That is my understanding of Dr. McRae’s evidence and I accept that his status within his denomination, for purposes of paragraph 8(1 )(c), is that of a "regular minister", whatever the theological understanding of his status may have been.
I have noted that determination of that issue is unnecessary. That 1s because, even if Dr. McRae is considered a "regular minister" within the Christian Brethren Assembly and Mr. Small was an ordained minister of the Associated Gospel churches, neither met the functional requirement, "and...in charge of or ministering to a diocese, parish or congregation".
Counsel made reference to considerable jurisprudence concerning the terms "minister", "regular minister". Insofar as the cases referred to deal with those terms as used in statutes other than the Income Tax Act, though these were of general interest, they are not directly referable to the interpretation of the paragraph here in issue. There are, however, five decisions, mainly of the former Tax Appeal Board, other than the decisions of the Tax Court in relation to the cases at bar, which deal with paragraph 8(1)(c) or its predecessors.
In Guthrie v. M.N.R. (1955), 14 Tax A.B.C. 90, 55 D.T.C. 605 (T.A.B.) the Board allowed a deduction claimed by an ordained minister, employed and teaching in a theological college, under a predecessor to the current provision which at the time required only a status test to be met, 1.e., as a member of the clergy or of a religious order or a regular minister of a religious denomination. The Act was changed thereafter to require a functional test be met also, that is that the taxpayer, qualified by status, also be "in charge of or ministering to a diocese, parish or congregation or engaged exclusively..." as the paragraph now provides. (Amended by S.C. 1956, c. 39, subsection 3(5).)
In Bloom v. M.N.R. (1963), 34 Tax A.B.C. 206, 64 D.T.C. 39 (T.A.B.) the Board compared the functions of the taxpayer as ritual director of a synagogue with those ordinarily and regularly performed by the rabbi. It determined that those functions did not compare with the rabbi’s and that the taxpayer did not have any special and recognized status within the Jewish faith that would be universally significant in any Hebrew congregation. Thus, he was not a regular minister of a religious denomination and was not in charge of or ministering to a congregation.
In Attwell v. M.N.R., [1967] Tax A.B.C. 862, 67 D.T.C. 611 (T.A.B.), a member of the clergy, ordained in the Anglican church, employed as the chaplain and a teacher at Ashbury College, a private boys school then of some 280 pupils, was held to be entitled to claim the deduction. His duties as chaplain included leading daily morning chapel services and Sunday services for students and visiting parents, preparation of students for confirmation in the church and acting as spiritual adviser. In dealing with that appeal the then assistant chairman of the Board, R.S.W. Fordham, Q.C. indicated that in his view the facts were unusual and the decision ought not to be considered a precedent. Nevertheless, it was followed by the Tax Review Board in Adam v. M.N.R., [1974] C.T.C. 2298, 74 D.T.C. 1220 (T.R.B.), and there the deduction claimed was allowed in the case of a taxpayer who was an ordained minister employed as registrar and a teacher at Briarcrest Bible Institute in Caronport, Saskatchewan, whose duties included conduct of daily chapel sessions and shared conduct of regular Sunday services which were not merely for the institute but for the surrounding community as well.
Finally, in the most recent case, Kolot v. The Queen, [1993] 1 C.T.C. 2047, 92 D.T.C. 2391 (T.C.C.), Mr. Justice Beaubier, relying upon the decision of Goetz J. of the Tax Court of Canada who dealt with two of the cases at bar, in regard to Messrs. Small and McRae in his decision in Small et al. v. M.N.R., supra, ([1990] 2 C.T.C. 2286, 89 D.T.C. 663), found that the taxpayer, who was not an ordained minister of the United church, was entitled to the deduction claimed. On the evidence, as a christian education staff associate within her denomination, she was considered a spiritual leader, having passed required tests and been appointed to a congregation where her duties involved guiding the spiritual life, working with ordained ministers of the congregation. In that case the taxpayer was found to be a ’’regular minister" and further that she was ministering to a congregation established by the religious denomination of which she was a member and spiritual leader.
Three of these decisions refer to the matter of "ministering to a congregation", the functional test which, in my view, neither Dr. McRae nor Mr. Small in the cases here under consideration met. Thus in Attwell, supra, Mr. Fordham for the Board said (at page. 864 (D.T.C. 612-613)):
Counsel for the Minister argued that the ejusdem generis rule of construction should be applied in considering the words ‘diocese, parish or congregation". I do not agree as each of these words has a clear connotation; the first two are descriptive of a particular territorial area ministered by the church; a parish is altogether different from a diocese as it is only a small part of the latter. Also, there may be a congregation irrespective of any parish or other boundaries. In Barnes v. Shore (1846), 1 Rob. Eccl. 382, Sir Herbert Jenner Furst said:
What is necessary to constitute a congregation has not been very strictly defined: but it has been commonly considered that "where two or three are gathered there together" there is a sufficient number to constitute a congregation.
Furst evidently borrowed from the well-known prayer of St. Chrysostom found in the forepart of the Anglican prayer book in using the words quoted by him. In the much later case of Re Hutchinson's Trust (1914), 1 LR. 271, O’Connor M.R., observed:
It was contended that the three ladies and one other person do not constitute a congregation. It is no doubt a small congregation, but I am unaware of any authority which makes a large multitude of persons essential to the constitution of a congregation.... I must hold that there is still a congregation of Unitarians in Clonmel, and that the trust has not so far failed.
As may be seen, in order to constitute a congregation the number of individuals need not be large, but may in fact even be exceedingly small. I can find nothing in paragraph (q) that in any way enhances the meaning of "congregation.
In Adam, supra, though the facts differed slightly, the Board simply followed and adopted the reasoning in Atwell. In Kolot, supra, the principal issue concerned whether the taxpayer was a "regular minister" within paragraph 9(1 )(c) and only passing reference was made by Beaubier J. to her as "ministering to the congregation of Wesley United church in Regina, Saskatchewan, in the manner in which she was directed by presbytery".
For the plaintiff Dr. McRae in the case at bar, it is urged that the faculty, staff and students of OBC constitute a congregation to which he ministers by performing typical pastoral functions. He leads religious services and offers communion, on a regular if not frequent basis, he provides leadership in preaching, prayer and spiritual life, he provides spiritual counselling and performs marriage ceremonies under provincial law. For Mr. Small it is claimed that the congregation he served through prayer and preaching was the alumni of OBC, who meet from time to time, at least annually at the institution, or whom he met on his travels regularly to communities where they settled. Both Dr. McRae and Mr. Small also provided spiritual leadership in visiting, preaching and leadership in prayer, at congregations of their respective denominations when invited. I do not intend to diminish the importance of their respective roles of leadership including spiritual leadership, for OBC, its alumni and its supporters within church congregations.
Nevertheless, I conclude that those functions were not "ministering to a congregation" within paragraph 8(1 )(c) because neither OBC nor its alumni constitute a congregation as that word is used in the statutory provision. For the plaintiffs, it is argued that a congregation is an assembly of persons meeting for the worship of God and for religious instruction; the a congregation 1s not defined by territorial boundaries or the number of people gathered together and, relying particularly upon Attwell and Adam, supra, that a body of students and staff of an educational institution can constitute a congregation which need not all be of the same denomination.
I note that in Attwell, Mr. Fordham for the Tax Appeal Board expressly rejected reliance upon the ejusdem generis rule of construction of the words "diocese, parish or congregation" in part because each of the words, in his view, "had a clear connotation". If he meant by that that each word has a clear meaning without reference to the context in which it is used then I must disagree. It is because the parties do not agree on a clear meaning here that they disagree on the meaning of the word "congregation". The word must be read in the context of the paragraph as a whole. The qualifying words, relating to the deduction here claimed are these:
a member of the clergy or of a religious order or a regular minister of a religious denomination, and is in charge of, or ministering to a diocese, parish or congregation or engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination....
It is my opinion that in this broader context of the words used to describe the qualifications for a deduction, the words "diocese, parish or congregation" are intended to describe different organizational or institutional structures determined by religious denominations for the ongoing organized activities of their members on a regular basis. Thus, a gathering of persons may well be a congregation for some purposes, but unless it is a gathering for shared religious purposes recognized by a religious denomination for its regular organizational religious activities, it does not qualify as a "congregation" within the meaning of that word in paragraph
8(1 )(c) of the Act.
OBC, its faculty, staff and students, and its alumni, could not be considered to constitute a congregation as I interpret the word, that is a body recognized by a religious denomination for its regular organizational religious activities since on the evidence the institution was seen as representative of, and serving several denominations through its educational programs, not through its religious services and workship activities. Moreover, faculty, staff and students, and clearly alumni, were encouraged or would rely upon their own denominational church congregations for their primary spiritual life.
If I am correct in my interpretation, OBC, its faculty, staff and students, and its alumni, do not qualify as a congregation within the statutory provision. In their responsibilities in serving at OBC, neither Dr. McRae or Mr. Small was "in charge of or ministering to a congregation", within the meaning of those words as used in paragraph 8(1)(c).
Conclusions
The following summarizes my conclusions in relation to each of these actions.
In the action T-494-90, I have found that the ICS is not a religious order. The late Bernard Zylstra thus does not qualify for a deduction under paragraph 8(1 )(c) of the Act, as claimed by his estate, for he was not, by reason of his office as president or his membership in ICS, a member of a religious order. Thus, in his office as president, he could not be said to be engaged exclusively in full-time administrative service by appointment of a religious order. The appeal by his estate from the decision of the Tax Court of Canada in this action is thus dismissed, with costs as asked by the Crown.
In action T-495-90, I have found that the late Jacob Small was a member of the clergy, but he was not in charge of, or ministering to a congregation, and he was not exclusively engaged, by reason of his appointment or office or membership in OBC, in full-time administrative service by appointment of a religious order, since OBC was not a religious order, within the meaning of those various terms as used in paragraph 8(1 )(c) of the Act. The assumptions of fact of the Minister of National Revenue upon which assessment of tax was based were in error in one regard, that is, concerning his status as a "member of the clergy", but since I find he was not in charge of or ministering to a congregation, the last Mr. Small did not meet all qualifications necessary to claim a deduction under the paragraph in question, and thus the assessment by the Minister was not in error. The appeal, initiated by the late Mr. Small and carried on by his estate, from the decision of the Tax Court of Canada in action T-495-90 is thus dismissed, with costs as asked by the Crown.
In action T-496-90, I found that Dr. William McRae was not a member of the clergy, nor was he a member of a religious order by reason of his office and his membership in OBC since that organization was not a religious order, within the meaning of those terms as used in paragraph 8(1)(c) of the Act. Without determining whether he was a regular minister within the terms of that provision, but assuming for purposes of this case that he was, I have found that he was not "a regular minister in charge of or ministering to a congregation". I have also found, since the OBC was not a religious order, that he was not engaged, by reason of his office at OBC, in full-time administrative service by appointment of a religious order. Thus, the essential assumptions of fact upon which the Minister of National Revenue based his assessment for tax for 1986 remain. The appeal by Dr. McRae from the decision of the Tax Court of Canada in action T-496-90 is thus dismissed, with costs as asked by the Crown.
In action T-497-90, I have found the ICS is not a religious order. Mr. Vandervennen thus does not qualify for a deduction under paragraph 8(1)(c) of the Act as he claimed, for he was not, by reason of his office or his membership in the ICS a member of a religious order nor was he engaged exclusively in full-time administrative service by appointment of a religious order. The essential assumptions of fact upon which the Minister of National Revenue based his assessment for tax for 1985 remain. The appeal by Mr. Vandervennen from the decision of the Tax Court of Canada in action T-497-90 is thus dismissed, with costs as asked by the Crown.
A separate judgment relating to each action is filed and I direct that a copy of these reasons be filed in each of the Court’s files.
Actions dismissed.
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