Goetz,
T.C.J.:—The
appeals
of
William
J.
McRae,
and
Jacob
Small,
heard
together
on
common
evidence,
are
against
income
tax
assessments
for
the
1986
taxation
year,
wherein
the
Minister
of
National
Revenue
disallowed
the
deductions
which
the
appellants
had
claimed
under
paragraph
8(1)(c)
of
the
Income
Tax
Act
(the
"Act").
The
relevant
facts
of
these
appeals
can
be
summarized
as
follows.
The
appellants
are
respectively
the
president
and
the
director
of
alumni
of
the
Ontario
Bible
College
and
OntarioTheological
Seminary
(hereinafter
the
"College").
The
College
is
a
non-profit
corporation
established
by
a
special
Act
of
the
Ontario
legislature
(The
Ontario
Bible
College
and
Ontario
Theological
Seminary
Act,
S.O.
1982,
c.
79)
and
its
objects
are
set
out
in
section
3
therein
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.
In
pursuit
of
these
objects
the
College
has
the
power
to
grant
the
degrees
of
Bachelor
of
Theology;
Bachelor
of
Religious
Education;
Bachelor
of
Sacred
Music;
Master
of
Theology;
Master
of
Religious
Education;
Master
of
Theological
Studies;
Master
of
Divinity;
Doctor
of
Ministry;
Doctor
of
Theology;
and
the
Honourary
Degree
of
Doctor
of
Divinity.
It
also
has
the
power,
inter
alia
:
(1)
to
establish
and
terminate
programs
and
courses
of
study
after
consideration
of
the
recommendations,
if
any,
of
the
Cabinet
and
the
faculty;
(2)
to
appoint
and
promote
members
of
the
faculty
and
academic
officers;
(3)
to
grant
tenure
and
leave
to
and
to
suspend
and
remove
the
academic
officers
and
members
of
the
faculty;
(4)
to
federate
or
affiliate
the
College
with
any
other
institution
of
higher
learning,
and;
(5)
to
establish
and
collect
fees
and
charges
for
tuition
and
for
services
of
any
kind
offered
by
the
College
and
collect
fees
and
charges
on
behalf
of
any
entity,
organization
or
element
of
the
College.
The
College
is
described
in
its
calendar
for
the
1988-1989
year
as
being
"genuinely
multidenominational
with
board,
faculty
and
students
coming
from,
and
actively
involved
in,
the
life
and
ministry
of
many
congregations
and
denominations".
It
has
a
full-time
teaching
faculty
of
17
and
over
30
lecture
hours
of
instruction
a
week.
The
College's
curriculum
is
Bible-centred
and
it
is
accredited
by
the
American
Association
of
Bible
Colleges.
Typically,
half
of
the
College's
students
eventually
become
ministers.
Therefore,
in
keeping
with
its
stated
objects,
the
College's
primary
purpose
can
be
described
as
training
individuals
for
the
Christian
ministry.
William
McRae,
as
president
of
the
College,
is
the
College's
chief
administrative
officer
and
principal
educational
officer.
In
this
capacity,
he
teaches
several
courses;
provides
counselling
to
both
students
and
staff;
occasionally
conducts
daily
chapel;
and
is
generally
responsible
for
the
overall
management
of
the
College.
The
second
appellant's
duties,
as
director
of
alumni,
are
essentially
to
maintain
contact
with
and
solicit
funds
from
the
alumni
of
the
College,
who
provide
approximately
12
per
cent
of
the
College's
annual
budget.
In
the
course
of
his
duties,
he
visits
many
congregations
and
frequently
gives
sermons
(15-20
per
year).
Central
to
these
appeals
is
the
religious
background
and
training
of
the
appellants.
Jacob
Small
was
ordained
by
the
Associated
Gospel
Churches
of
Canada
on
April
18,
1968
and
prior
to
becoming
employed
by
the
College,
in
1981,
was
the
minister
of
a
number
of
churches.
William
McRae
received
his
Doctor
of
Ministry
degree
from
the
Dallas
Theological
Seminary,
in
1983,
and
became
the
president
of
the
College
immediately
thereafter.
Previously,
he
had
been
employed
as
both
a
teacher
and,
in
his
words,
a
part-time
and
full-time
pastor.
While
never
formally
ordained,
William
McRae
is
a
commended
worker
of
the
Greenwood
Gospel
Chapel.
Although
somewhat
involved,
this
qualification
is
central
to
the
issue
at
hand
and
therefore
I
will
deal
with
it
at
some
length.
The
Greenwood
Gospel
Chapel
is
a
member
of
the
“Brethren
Assembly”,
an
informal
association
of
several
hundred
Bible
chapels
(or
"Assemblies")
throughout
Canada.
While
essentially
espousing
a
common
doctrine,
the
members
of
the
Brethren
Assembly
differ
from
what
I
will
refer
to
as
the
mainstream
Protestant
denominations
in
that
they
do
not
recognize
a
formal
or
organized
clergy.
In
place
of
a
regular
minister,
the
elders
of
the
congregation
invite
various
speakers
to
deliver
sermons.
These
speakers
are
drawn
from
the
congregation,
other
congregations
of
the
Brethren
Assembly,
and
from
both
Baptist
and
other
ordained
ministers.
But
while
the
Brethren
Assembly
have
no
formal
ordination
and
reject
the
concept
of
needing
an
intermediary
between
the
congregation
and
the
divine,
there
nevertheless
exists
a
process
known
as
commending.
This
may
be
described
as
follows:
any
active
member
of
a
given
assembly,
whatever
his
academic
or
other
qualifications,
who
feels
that
he
has
the
necessary
spiritual
calling
may
apply
to
the
elders
of
the
congregation
to
become
a
"commended
worker".
Upon
such
an
application
the
elders
will
satisfy
themselves
that
the
applicant
is
sincere
and
senses
a
genuine
commitment.
If
this
is
the
case,
the
applicant
is
provided
with
a
“letter
of
commendation"
attesting
to
the
fact
that
he
is
well
known
to
the
chapel
and
has
demonstrated
a
true
religious
conviction
and
calling.
The
commendation
is
granted
only
upon
a
unanimous
vote
of
the
elders
of
the
congregation.
The
appellant's
letter
of
commendation
is
as
follows:
Greenwood
Gospel
Chapel
Corner
of
Greenwood
and
Queensdale
Avenues
Toronto
Meetings
Sunday
Correspondent
9:30
a.m.
The
Lord's
Supper
R.
Gordon
Mitchell
11:00
a.m.
Family
Bible
Hour
35
Pitcairn
Crescent
11:00
a.m.
Sunday
School
Toronto
16,
Ontario
|
2:45
p.m.
Sunday
School
|
|
|
1:15
p.m.
Teen-aged
Classes
|
|
|
7:00
p.m.
Gospel
Service
|
|
|
Tuesday
|
|
|
8:00
p.m.
Prayer
and
Bible
Study
|
July
22,
1958.
|
To
All
Those
Who
Love
Our
Lord
Jesus
Christ
In
Sincerity
And
Who
Gather
Together
In
His
Name:
Greetings!
We
hereby
commend
to
the
grace
of
God
our
brother,
William
McRae,
Jr.
for
the
work
to
which
we
believe
he
has
been
called.
Brother
McRae
has
grown
up
in
our
midst
and
at
an
early
age
came
to
know
Christ
as
his
personal
Saviour.
As
we
have
observed
him
develop
through
young
manhood,
his
life
and
conduct,
as
well
as
his
diligent
application
to
the
Word
of
God
and
to
the
service
of
the
Lord
have
been
most
commendable.
He
spent
three
years
at
Emmaus
Bible
School
in
the
study
of
the
Word
and
the
last
two
years
have
been
spent
in
teaching
school
in
Renfrew,
where
he
has
lived
with
his
wife.
He
has
during
this
time
been
an
active
helper
in
the
work
of
the
assembly
there.
Brother
McRae
is
planning
to
serve
the
Lord
in
the
Ottawa
Valley.
Our
brother's
wife
is
in
complete
harmony
with
him.
We
believe
that
God
has
gifted
and
called
our
brother
to
this
service.
He
goes
forth
in
full
dependence
upon
the
Lord
of
the
harvest,
who
has
exhorted
us
to
pray
to
Him
that
He
might
send
forth
labourers
into
His
harvest.
In
commending
our
brother
to
this
work,
we
request
the
prayerful
interest
and
fellowship
of
the
Lord's
people.
On
Behalf
of
Greenwood
Assembly
(signed)
(signed)
We,
the
undersigned,
for
Danforth
Gospel
Hall
and
Glebemount
Gospel
Chapel,
are
happy
to
endorse
the
commendation
given
by
our
brethren
of
Greenwood
Gospel
Chapel
to
our
brother,
William
McRae,
Jr.
For
Danforth
Gospel
Hall
for
Glebemount
Gospel
Chapel
(signed)
(signed)
As
well,
by
virtue
of
their
faculty
contract,
the
appellants
were
both
required
to
sign
the
College's
statement
of
faith.
This
is
set
out
in
a
document
entitled
The
Doctrinal
Statement
of
Ontario
Bible
College
and
Ontario
Theological
Seminary
which,
for
the
sake
of
brevity,
may
be
described
as
enunciating
general
Judea-Christian
principles,
as
drawn
from
both
the
Old
and
New
Testament.
The
following
is
the
introduction
and
first
paragraph
of
the
College's
doctrinal
statement
which
is
sufficient
to
indicate
the
general
tenor
of
the
document
as
a
whole:
Doctrinal
Statement
of
Ontario
Bible
College
and
Ontario
Theological
Seminary
In
view
of
the
growing
confusion
respecting
matters
doctrinal
and
practical
within
the
framework
of
the
professing
Christian
Church,
the
Board
of
Governors
of
OBC
and
OTS
herewith
places
on
record,
in
clear
and
unequivocal
language,
this
statement
of
faith
and
practice.
These
institutions
are
thoroughly
orthodox
and
evangelical
in
doctrine.
While
many
denominations
are
represented
in
the
Corporation,
Faculties,
Staffs,
Student
Bodies,
and
Alumni,
OBC
and
OTS
themselves
are
not
directly
affiliated
with
any
particular
denomination
or
groupage.
In
matters
of
association
and
affiliation,
the
schools
enjoy
happy
and
blessed
fellowship
with
many
organizations
and
individuals
of
like
precious
faith,
but
from
liberal
ecumenical
movements
we
unreservedly
dissociate
ourselves.
The
Triune
God:
We
believe
that
there
is
but
one
living
and
true
God,
the
Creator,
Preserver
and
Governor
of
all
things,
who
is
Spirit,
infinite
in
being,
and
in
all
perfections.
We
further
believe
that
the
one
God
exists
eternally
in
three
persons:
the
Father,
the
Son,
and
the
Holy
Spirit;
all
three
having
the
same
nature,
attributes,
and
perfections,
but
each
executing
distinct,
but
harmonious,
operations
in
the
work
of
creation
and
of
redemption.
In
examination-in-chief,
William
McRae
stated
that
failure
to
affirm
the
doctrinal
statement
on
an
annual
basis
would
result
in
dismissal.
Notwithstanding
this,
he
later
indicated
that
several
members
of
the
College,
including
at
times
Jacob
Small,
had
not
signed
the
statement.
In
summary,
I
think
the
appellants
can
be
described
as
individuals
with
strong
religious
associations
who
during
the
year
in
question
were
engaged
in
the
employ
of
an
educational
institution
which
was
itself
devoted
to
providing
religious
training.
Having
said
this,
the
apposite
question
becomes
whether
this
is
sufficient
to
bring
the
appellants
within
the
ambit
of
paragraph
8(1)(c)
of
the
Income
Tax
Act,
which
provides
that:
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).
This
is
essentially
a
two-fold
test
which
counsel
for
the
appellants
characterized
as
being
that
of
status
and
function.
That
is
to
say,
in
order
to
fall
within
the
ambit
of
the
paragraph,
an
individual
first
must
be:
(1)
a
member
of
the
clergy,
(2)
a
member
of
a
religious
order,
or
(3)
a
regular
minister
of
a
religious
denomination,
and
second,
must
be:
(1)
in
charge
of
or
ministering
to
a
diocese,
parish
or
congregation,
or
(2)
engaged
exclusively
in
full-time
administrative
service
by
appointment
of
a
religious
order
or
religious
denomination.
At
first
blush,
these
requirements
seem
to
be
fairly
straightforward.
Unfortunately
none
of
the
terms
relied
upon
are
defined
either
in
the
Act
or,
to
any
satisfactory
degree,
in
the
extant
case
law.
Counsel
for
the
respondent
submitted
that
in
order
to
be
a
member
of
the
clergy
an
individual
must
belong
to
a
priestly
order,
set
apart
by
ordination.
In
support
of
this
she
referred
to
the
Oxford
English
Dictionary
which
defines
the
term
"clergy"
as
follows:
The
clerical
order;
the
body
of
men
set
apart
by
ordination
for
religious
service
in
the
Christian
Church;
opposed
to
laity.
.
.
.
[Originally
a
term
of
the
Catholic
Church.]
but
also
commonly
used
in
those
Protestant
churches
which
have
an
ordained
ministry.
A
similar
definition
is
found
in
Jowitt's
Dictionary
of
English
Law
which
defines
“clergy”
as:
The
assembly
or
body
of
clerks
or
ecclesiastics
set
apart
from
the
rest
of
the
people
or
laity
to
superintend
the
public
worship
of
God
and
the
other
ceremonies
of
religion,
and
to
administer
spiritual
council
and
instruction.
i.e.
a
man
in
holy
orders,
a
regular
minister
of
any
religious
denomination
and
a
vowed
member
of
any
religious
order
living
in
a
monastery,
etc.
The
Concise
Oxford
English
Dictionary
goes
on
to
define
the
term
"clergyman"
as:
"A
man
of
the
clerical
order;
an
ordained
minister
of
the
Christian
Church.
(In
England,
commonly
meaning
a
minister
of
the
Church
of
England.)"
These
definitions
were
essentially
accepted
by
W.S.
Fisher,
Q.C.,
in
Bloom
v.
M.N.R.
(1963),
34
Tax
A.B.C.
206;
64
D.T.C.
39
(T.A.B.),
and
to
my
mind
represent
the
plain
and
ordinary
meaning
of
the
term.
Their
applicability
is
also
implicit
in
the
reasoning
found
in
Guthrie
v.
M.N.R.
(1955),
14
Tax
A.B.C.
90;
55
D.T.C.
605
(T.A.B.);
Attwell
v.
M.N.R.
(1967),
Tax
A.B.C.
862;
67
D.T.C.
611
(T.A.B.);
and
Adam
v.
M.N.R.,
[1974]
C.T.C.
2298;
74
D.T.C.
1220
(T.R.B.).
Thus
there
would
appear
to
exist
a
clear
emphasis
on
the
need
for
ordination,
which
is
defined
in
Black’s
Law
Dictionary
as:
"Ceremony
by
which
a
Bishop
confers
on
a
person
the
privileges
and
powers
necessary
for
the
execution
of
sacerdotal
functions
in
the
church."
Against
this,
counsel
for
the
appellants
cited
the
decision
of
Millar,
D.J.T.C.,
in
Erindale
Bible
Chapel
v.
M.N.R.,
(unreported).
This
case
has
particular
relevance
for
Mr.
McRae,
dealing
as
it
does
with
another
commended
worker
of
the
Brethren
Assembly.
In
referring
to
the
aforementioned
definitions
Deputy
Judge
Millar
stated:
The
above
definitions
are
persuasive
of
the
view
that
without
ordination
at
the
hands
of
a
bishop
or
other
high
ecclesiastic,
there
is
no
clergyman.
Anxious
reflection
however
persuades
me
that
such
a
view
would
be
too
rigid
and
would
fail
to
take
account
of
existing
realities
within
Canada.
It
must
be
remembered
that
the
above
dictionaries
have
English
origins
and
tend
to
reflect
more
or
less
English
conditions,
with
its
established
church.
In
this
country
the
Protestant
wing
is
enormously
fractured.
This
gives
rise
to
many
sects
and
independent
congregations,
the
majority
of
which
nevertheless
subscribe
to
the
central
tenets
of
Christian
theology.
Deputy
Judge
Millar
then
went
on
to
say:
I
have
discovered
no
other
useful
authorities
on
the
definition
of
"clergyman".
The
appellant
committed
the
whole
of
his
working
energies
to
preaching
the
gospel,
counselling
the
troubled
who
sought
the
wisdom
and
solace
of
a
spiritual
leader,
performing
marriages,
visiting
the
sick,
the
inmates
of
prisons,
the
aged
and
the
confined,
and
lecturing
at
a
bible
college;
all
within
the
context
of
a
faith
mission
based
on
a
Christian
theology
and
purpose.
It
must
therefore
be
concluded
that
if
Mr.
Rumford
was
not
a
clergyman
he
was
indubitably
playing
out
the
role
of
a
clergyman.
He
was
not
pronouncing
on
matters
of
dogma.
He
did
not
claim
to
intercede
with
the
divine
on
behalf
of
the
laity
in
its
anxieties
and
aspirations.
He
may
not
have
performed
all
the
functions
that
the
clergyman
is
licensed
to
undertake.
But
in
all
his
endeavours
he
conforms
to
the
general
perception
in
this
country
of
what
a
clergyman
is
and
does.
Indeed
some
would
say
he
conforms
more
closely
than
do
many
clergymen
who
spend
their
lives
operating
at
the
core
of
large
ecclesiastical
bureaucracies.
Once
again,
after
anxious
reflection
I
would
conclude
that
in
all
reality,
considering
the
rich
variety
of
ecclesiastical
denominations,
sects
and
religious
orders,
with
their
varieties
of
ritual
and
theological
stance
within
the
Christian
community,
Mr.
Rumford
must
in
this
country
be
regarded
as
a
clergyman.
This
conclu
sion
is
not
reached
easily
or
with
confidence.
The
countervailing
arguments
are
almost
as
convincing,
some
might
say
more
convincing.
If
forced
to
hold,
I
would
nevertheless
do
so
in
the
affirmative.
However,
I
conclude
that
it
is
unnecessary
for
me
to
decide
that
issue.
Deputy
Judge
Millar’s
comments
are,
however,
clearly
obiter
and
with
respect
I
cannot
accept
them.
To
begin
with,
it
is
necessary
to
recognize
that
although
the
issues
facing
Deputy
Judge
Millar
were
similar
to
those
in
the
instant
appeal,
he
was
in
fact
dealing
with
the
Unemployment
Insurance
Act
and
not
the
Income
Tax
Act.
Unlike
the
Income
Tax
Act,
the
Unemployment
Insurance
Act
recognizes
only
clergymen
and
members
of
a
religious
order.
To
apply
the
broad
meaning
that
Deputy
Judge
Millar
ascribes
to
the
term
clergyman
in
the
context
of
the
Income
Tax
Act
would
render
the
reference
to
“regular
ministers”,
in
paragraph
8(1)(c),
all
but
meaningless.
Moreover,
the
object
of
the
Act
is
not
to
extend
the
clergyman's
residence
deduction
to
every
individual
who
performs
a
function,
however
useful
or
well
meaning,
within
a
religious
framework.
While
it
may
be
argued
that
Parliament
has
expressed
itself
too
narrowly
to
fully
encompass
the
religious
diversity
which
exists
in
this
country;
express
itself
it
has
done
in
relatively
clear
and
unequivocal
terms
which
are
not
for
the
Court
to
ignore.
In
particular,
I
cannot
ignore
the
fact
that
the
term
member
of
the
clergy
has
a
definite
meaning
within
both
the
Roman
Catholic
and
the
Protestant
churches.
It
may
be
that
the
reality
of
Canadian
society
has
outgrown
this
anachronistic
classification,
but,
if
this
is
the
case,
it
is
a
matter
for
the
legislature
and
not
the
courts.
From
the
foregoing,
I
conclude
that
while
Jacob
Small
is
a
member
of
the
clergy
by
virtue
of
his
ordination
by
the
Associated
Gospel
Churches
of
Canada,
William
McRae's
commendation
by
the
Greenwood
Gospel
Chapel,
although
perhaps
similar
in
practical
terms,
does
not
meet
the
threshold
required
to
be
considered
an
ordination
and
therefore
is
insufficient
to
make
him
a
member
of
the
clergy.
Having
said
this,
it
next
falls
to
consider
whether
Mr.
McRae
can
be
considered
"a
member
of
a
religious
order".
The
principal
decision
on
what
constitutes
a
religious
order
is
that
of
the
Federal
Court-Trial
Division
in
Wipf
et
al.
v.
M.N.R.,
[1973]
F.C.
1382;
[1973]
C.T.C.
761;
73
D.T.C.
5558;
(revd
on
other
grounds
[1975]
F.C.
162;
[1975]
C.T.C.
79;
75
D.T.C.
5034.
The
appellants,
in
this
case,
were
members
of
the
Hutterian
Brethren
Church,
a
religious
and
farming
organization
whose
activities
are
carried
on
through
various
communities
or
"colonies".
The
object
of
each
colony
was
generally
stated
as
being
to
promote
and
carry
on
the
Christian
religion,
and
to
worship
God
according
to
the
religious
beliefs
of
the
Hutterian
Brethren
Church.
At
the
same
time,
however,
it
was
anticipated
that
the
colonies
would
engage
in
a
wide
range
of
other
activities,
including
farming,
stock
raising,
milling,
and
all
branches
of
these
industries.
All
of
the
property
in
each
colony
was
owned
by
the
colony
for
the
common
use
and
benefit
of
its
various
members.
Notwithstanding
this,
the
Minister
assessed
each
of
the
appellants
on
a
pro
rata
share
of
the
profit,
of
the
activities
of
the
colony,
which
they
and
the
other
members
of
the
colony
carried
on
for
their
common
benefit.
The
appellants,
however,
argued
that
they
were
members
of
a
religious
order,
within
the
meaning
of
section
27(2)
(now
subsection
110(2)),
and
having
taken
a
vow
of
poverty
were
entitled
to
deduct
from
their
income
for
the
taxation
year
the
amount
of
earned
income
which
was
paid
to
the
colony.
In
rejecting
the
appellants’
argument,
the
Court
held
that
(pages
771-72
(D.T.C.
5566)):
.
.
.
It
is
clear
that
the
whole
scheme
of
organization
is
to
make
a
clear
separation
of
the
Church
in
its
purely
religious
context
from
the
colony,
the
members
of
which
engage
in
both
religious
and
secular
activities.
There
are
several
authorities
for
the
proposition
that
when
an
organization
has
both
charitable
and
non-
charitable
objects
it
is
deemed
not
to
be
a
charitable
entity
for
purposes
of
taxation.
(See
Keren
Kayemeth
Le
Jisroel
Ltd
v
Commissioner
of
Inland
Revenue
17
TC
27,
The
Oxford
Group
v
Commissioner
of
Inland
Revenue
31
TC
221,
and
Guaranty
Trust
Company
of
Canada
v
MNR
[1967]
SCR
133;
[1967]
CTC
755;
67
DTC
5003.)
Accordingly,
since
the
objects
and
purposes
of
the
colony
in
question
were
not
exclusively
religious,
it
could
not
qualify
as
a
religious
order.
Once
again,
this
is
consistent
with
the
definitions
found
in
various
dictionaries.
For
example,
the
Collins
Dictionary
of
the
English
Language,
2nd
Edition,
defines
“religious
order"
as
follows:
“A
group
of
persons
who
bind
themselves
by
vows
in
order
to
devote
themselves
to
the
pursuit
of
religious
aims."
[Emphasis
added.]
The
term
is
further
defined
by
the
Oxford
English
Dictionary
in
this
way:
A
body
or
society
of
persons
living
by
common
consent
under
the
same
religious,
moral,
or
social
regulations
and
discipline;
especially,
a
monastic
society
or
fraternity:
as
an
order
of
monks
or
friars,
the
Benedictine
or
Franciscan
order.
In
light
of
this,
the
appellants
argue
that
they
are
members
of
a
religious
order
on
the
basis
that
the
College
constitutes
a
community
which
is
devoted
to
a
religious
purpose
and
is
subject
to
a
common
set
of
rules,
namely
the
College's
doctrinal
statement.
Unfortunately,
there
are
several
problems
with
this
position.
To
begin
with,
the
facts
of
this
case
are
clearly
analogous
to
those
in
Wipf
et
al.
v.
M.N.R.,
supra,
in
that
although
there
is
undeniably
a
religious
element
to
the
College's
activities,
its
activities
are
by
no
means
exclusively
religious.
Moreover,
while
this
is
arguably
too
absolute
a
test,
the
College's
activities
cannot
even
be
described
as
predominantly
religious.
This
conclusion
is
reflected
throughout
the
evidence.
While
the
College's
staff
may
have
had
some
duties
of
a
religious
nature,
their
principle
task
was
teaching.
Similarly,
the
College's
various
powers
are
almost
exclusively
of
an
educational
nature;
including,
for
example,
the
power
to
grant
degrees
and
to
affiliate
with—not
another
religious
body—but
rather
"any
other
Institution
of
higher
learning”.
[Emphasis
added.]
As
well,
drawing
from
both
the
aforementioned
definitions
and
the
decision
in
Case
G38,
75
A.T.C.
239
(A.T.B.R.),
an
essential
prerequisite
to
being
a
religious
order
is
the
existence
of
vows
or
a
religious
discipline,
to
which
the
order's
members
submit
themselves.
Clearly
this
does
not
exist
in
the
instant
case.
First,
because
the
evidence
shows
that,
although
technically
mandatory,
in
practical
terms
affirming
one's
belief
in
the
College's
doctrinal
statement
was
optional.
But,
more
importantly,
because
the
College's
doctrinal
statement
is
far
too
broad
and
general
to
be
considered
as
such.
Furthermore,
even
if
this
were
not
the
case,
it
would
still
be
incorrect
to
conclude
that
the
appellants
are
members
of
a
religious
order.
Plainly,
the
term
does
not
extend
to
everyone
who
is
associated
in
some
capacity
with
a
religious
order.
Rather,
it
is
one
that
must
be
interpreted
ejusdem
generis
with
both
member
of
the
clergy
and
regular
minister;
that
is,
in
order
to
fall
within
the
ambit
of
paragraph
8(1)(c)
a
taxpayer
must
both
perform
a
religious
function
and,
at
least
by
the
tenets
of
his
particular
faith,
be
distinguished
from
the
laity
by
virtue
of
his
being
a
clergyman,
a
regular
minister
or
a
member
of
a
religious
order.
This
is
implicit
in
the
differing
thresholds
associated
with
the
terms
religious
order
and
religious
denomination.
Thus,
while
for
the
purposes
of
paragraph
8(1)(c)
it
is
sufficient
to
be
a
member
of
a
religious
order
it
is
necessary
to
meet
a
higher
threshold
of
being
a
regular
minister
of
a
religious
denomination.
To
my
mind
the
reason
for
the
distinction
would
seem
to
be
this:
while
both
may
be
groups
of
persons
sharing
a
similar
creed
or
philosophy,
the
latter
are
predom
inantly
members
of
the
laity
or
individuals
following
what
is
essentially
a
secular
lifestyle.
The
former
are
individuals
who
have
abandoned
a
secular
style
in
order
to
devote
themselves
fully
to
religious
pursuits.
Put
differently,
in
order
to
meet
what
counsel
for
the
appellants
referred
to
as
the
status
test,
an
individual
must
in
fact
have
some
sort
of
status
which
distinguishes
him
from
the
other
members
of
his
faith
and
merely
subscribing
to
a
common
set
of
beliefs,
such
as
the
College's
statement
of
faith,
does
not
achieve
this
end.
This
brings
me
to
the
crux
of
the
question
as
regards
Mr.
McRae’s
status,
namely
whether
he
may
be
considered
a
regular
"minister
of
a
religious
denomination”.
Prima
facie,
this
is
a
much
broader
characterization
than
either
of
the
previous
two.
In
particular,
as
recognized
in
Regina
v.
Dickout
(1893),
24
O.R.
250,
the
term
religious
denomination
is
not
restricted
merely
to
Christian
denominations
and
includes
sectarian
denominations
(such
as
the
Church
of
Jesus
Christ
of
Latter
Day
Saints)
and
non-Christian
denominations
(such
as
Judaism).
The
broad
ambit
of
the
term
is
also
reflected
in
the
decision
of
the
Manitoba
Court
of
Queen's
Bench
in
Re
Sisters
of
St.
Joseph
and
City
of
Winnipeg
(1982),
135
D.L.R.
(3d)
177.
In
considering
a
section
of
the
Municipal
Assessment
Act
which
exempted
a
religious
denomination
from
municipal
taxation,
the
Court
stated
at
pages
178-79:
The
word
"denomination"
in
the
context
in
which
it
is
used
in
s.
2(3)(e)
of
the
Municipal
Assessment
Act
in
my
view
means
a
class,
society
or
group
of
individuals
called
or
identified
by
the
same
name.
This
meaning
is
to
be
found
in
a
number
of
authoritative
English
language
dictionaries:
see
the
Century
Dictionary;
the
Shorter
Oxford
English
Dictionary,
2nd
ed.;
Webster's
Third
New
International
Dictionary,
and
Funk
and
Wagnall’s
Standard
Dictionary
of
the
English
Language,
International
Edition.
With
respect,
I
find
no
difficulty
in
accepting
that
the
Sisters
of
St.
Joseph
for
the
Diocese
of
Toronto
in
Upper
Canada,
recognized
long
ago
by
the
Legislature
to
be
"a
religious
order
or
association
of
women
of
the
Roman
Catholic
faith”
is
properly
described,
notwithstanding
the
fact
of
incorporation,
as
a
group
of
individuals
called
or
identified
by
the
same
name.
As
already
noted,
the
religious
connotation
is
not
questioned
and
I
therefore
hold
that
the
applicant
is
a
religious
denomination
within
the
meaning
of
the
statute.
Similarly,
albeit
in
obiter,
the
Court
in
Greenlees
v.
Attorney-General
for
Canada,
[1945]
2
D.L.R.
641,
808;
[1945]
O.R.
411
(Ont.
H.C.);
affd
[1946]
1
D.L.R.
550;
[1946]
O.R.
90
(C.A.);
leave
to
appeal
to
Supreme
Court
of
Canada
refused
[1946]
S.C.R.
462
(Ont.
K.C.),
stated:
The
Oxford
Dictionary
gives
as
one
of
its
definitions
of
the
word
“religion”,
"a
particular
system
of
faith
and
worship”.
"Denomination"
is
defined
as
"a
collection
of
individuals
classed
together
under
the
same
name;
now
almost
always
a
religious
sect
or
body
having
a
common
faith
or
organization,
and
designated
by
a
distinctive
name".
Although
Jehovah's
Witnesses
as
a
group
or
body
have
no
organization
as
that
term
is
ordinarily
used,
but
are
controlled
and
have
their
functions
and
activities
directed
by
the
directors
of
the
Watch
Tower
Bible
&
Tract
Society,
and
although
they
claim
not
to
he
a
religious
sect,
nevertheless
I
think
the
evidence
shows
that
they
are
a
group
which,
inasmuch
as
they
appear
to
have
a
particular
system
of
faith
or
belief,
might
be
said
to
come
within
the
ordinary
and
general
conception
of
the
term,
“religious
denomination”.
While
the
Ontario
Court
of
Appeal
rejected
this
conclusion
on
the
grounds
that,
"to
form
themselves
into
a
religious
denomination
would
be
contrary
to
their
The
Jehovah's
Witnesses
faith”,
it
nonetheless
accepted
the
trial
judge's
overall
reasoning.
I
am
most
drawn
towards
the
ratio[nale]
in
Gordon
v.
Board
of
Education
of
City
of
Los
Angeles,
178
P.
2d
488,
which
considered
the
word
denomination
to
generally
mean
“a
body
of
persons
distinguished
by
peculiarities
of
faith
and
practice
from
other
bodies
adhering
to
the
same
general
system".
On
this
basis,
I
have
no
hesitation
in
finding
that
the
Brethren
Assembly
is
a
denomination.
Conversely,
as
I
will
discuss
subsequently,
the
College
cannot
be
considered
a
denomination.
The
question
then
becomes,
can
the
appellant,
William
McRae,
be
considered
a
“regular
minister"?
This
term
has
been
described
as
a
comprehensive
one
of
uncertain
significance.
Returning
to
the
decision
in
Bloom
v.
M.N.R.,
supra,
Fisher,
Q.C.
stated
at
page
212
(D.T.C.
42):
It
seems
that
the
regular
interpretation
to
be
put
upon
the
words
"a
regular
minister",
according
to
the
decisions
of
the
Courts
to
which
I
have
referred,
is
that
it
is
to
be
interpreted
in
a
religious
vein,
so
as
to
represent
an
elevation
in
rank
to
some
special
and
recognizable
religious
status.
Likewise,
in
Re
Penner
and
Schreyer
et
al.,
[1974]
47
D.L.R.
(3d)
462;
[1974]
5
W.W.R.
500,
the
Court,
in
dealing
with
a
provision
of
the
Election
Act
barring
“Ministers,
priests,
or
ecclesiastics
.
.
.
from
acting
as
returning
officers
.
.
.",
concluded
(at
D.L.R.
473)
that:
.
.
.
the
Legislature
intended
to
disqualify
pastors
and
professional
spiritual
leaders
in
charge
of
the
spiritual
well-being
of
their
congregations
from
becoming
returning
officers
because
of
their
inherent
influence
on
members
of
their
congregations.
The
term
"minister"
as
used
in
the
Act
refers
to
persons
in
charge
of
congregations,
to
pastors
or
spiritual
leaders
who
guide
the
spiritual
welfare
of
their
flocks.
It
is
used
along
with
the
terms
"priests"
and
“ecclesiastics”
to
denote
persons
who,
in
some
churches,
occupy
positions
similar
to
priests
or
ecclesiastics
in
other
church
organizations.
I
am
satisfied
that
the
Legislature.
.
.intended
the
word
“minister”
to
be
synonymous
with
the
words
"priest"
and
"ecclesiastic"
in
order
to
describe
the
spiritual
head
of
the
congregation
in
the
Protestant
Church
who
discharges
functions
similar
to
priests
and
ecclesiastics
in
hierarchical
churches
like
the
Roman
Catholic.
I
find
that
the
Election
Act
never
intended
to
disqualify
laymen
who
dedicate
themselves
to
assisting
their
pastors
in
ministering
to
the
congregations,
whether
they
are
called
deacons
or
ministers,.
.
.
Implicit
in
this
is
the
existence
of
two
elements
in
the
denomination:
a
lay
element
which
is
ministered
to
and
a
ministerial
or
clerical
element
which
performs
that
function.
As
Lord
MacDermott
expressed
it
in
Walsh
v.
Lord
Advocate,
[1956]
3
All
E.R.
129
(H.L.):
In
my
opinion
the
words
a
regular
minister
connote
a
class
which
forms
but
a
part
of
the
denomination
in
question
and
is
acknowledged
by
that
denomination
as
having
a
superior
and
distinct
standing
of
its
own
in
spiritual
matters
.
.
.
Lord
MacKintosh
puts
this
requirement
very
clearly
when,
speaking
of
the
"regular
minister",
he
says:
.
.
.
he
must
have
by
virtue
of
his
appointment
as
a
minister
what
might
be
called
"a
clergyman
status"
which
sets
him
apart
front
and
places
him
over
the
laity
of
his
denomination
in
spiritual
matters".
But,
it
is
important
to
recognize
that
this
is
frequently
a
difference
of
degree
rather
than
of
kind.
In
this
respect,
the
test
to
be
considered
a
regular
minister
may
be
contrasted
with
that
to
be
a
member
of
the
clergy
by
virtue
of
the
lack
of
formality
involved
(i.e.
the
necessity
for
ordination).
As
Maclean,
J.
stated
in
Re
Bien
and
Cooke
(1944),
81
C.C.C.
316;
[1944]
2
D.L.R.
137:
”.
.
.
various
denominations
use
various
forms
of
ordination
and
if
the
procedure
is
satisfactory
to
the
congregation,
as
appears
to
be
in
this
instance,
that
should
be
considered
sufficient
form
.
.
.”.
As
the
courts
in
Saltmarsh
v.
Adaire,
[1942]
S.C.(J.)
58,
Rex
v.
Stewart,
[1944]
2
W.W.R.
86
and
Rex
v.
Jazewsky,
[1945]
1
W.W.R.
95,
all
recognized,
at
least
some
degree
of
appointment
must
be
conferred,
be
it
by
an
individual
congregation
or
an
aggregate
thereof,
to
act
as
a
minister.
Having
said
this,
it
next
falls
to
determine
whether
the
appellants
can
be
considered
to
be
“in
charge
of,
or
ministering
to
a
diocese,
parish
or
congregation".
Because
the
activities
of
both
the
appellants
are
clearly
restricted
to
the
College
and
its
members,
the
apposite
question
is
whether
or
not
the
College
can
be
considered
either
a
parish,
diocese
or
congregation.
In
the
first
instance,
both
the
terms
"parish"
and
"diocese"
have
distinct
geographical
meanings.
In
this
sense,
they
represent
geographical
subdivisions—for
administrative
purposes—within
a
religious
organization.
I
think,
however,
both
words
must
be
interpreted
as
being
on
all
fours
with
the
term
congregation
and
therefore
refer
to
that
body
of
individuals
who
make
up
the
membership
of
a
particular
religion
within
these
geographical
boundaries.
The
meaning
to
be
ascribed
to
the
term
congregation
was
considered
in
Barnes
v.
Shore
(1846),
1
Rob.
ecc.
382,
where
the
Court
stated
that:
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"
is
a
sufficient
number
to
constitute
a
congregation.
And
further
on
that:
It
was
contended
that
.
.
.
three
ladies
and
one
other
person
cannot
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.
Of
particular
relevance
to
the
instant
appeal,
is
the
decision
of
the
Tax
Appeal
Board
in
Attwell
v.
M.N.R.,
supra,
in
which
Ashbury
College,
a
private
school
with
some
280
pupils,
was
held
to
be
a
congregation.
Likewise,
the
Tax
Review
Board
in
Adam
v.
M.N.R.,
supra,
also
found
a
school
to
be
a
congregation
of
students.
This
position
is
confirmed
by
Revenue
Canada
in
IT-141
paragraph
5,
which
states
that:
A
congregation
is
not
defined
by
territorial
boundaries
nor
by
the
number
of
people
gathered
together
in
one
place.
Accordingly,
Chaplains
in
the
Arm
Forces
or
With
an
Institution
are
generally
considered
ministers
to
congregations.
[Emphasis
added.]
Counsel
for
the
appellants
argued
that
the
College
sits
squarely
within
these
authorities.
However,
it
seems
to
me
that
in
order
to
be
a
congregation,
individuals
must
meet
for
a
common
religious
purpose
and
ultimately
this
requirement
is
not
met
by
the
College.
To
a
certain
degree,
much
the
same
thing
can
be
said
with
respect
to
the
situation
in
Attwell
v.
M.N.R.,
supra,
and
Adam
v.
M.N.R.,
supra.
Thus,
it
is
important
to
recognize
that
there
can
be
a
duality
in
situations
of
this
sort.
The
fact
that
an
individual
performs
a
function
within
an
educational
system
does
not
necessarily
preclude
him
from
simultaneously
being
the
regular
minister
of
a
congregation
which
consists
of
the
students
of
that
educational
institution.
This
was
essentially
the
situation
in
both
Attwell
and
Adam.
It
is,
however,
clearly
distinguishable
from
the
situation
in
the
instant
case.
To
begin
with,
as
I
indicated
earlier,
a
congregation
is
essentially
the
physical
manifestation
of
a
particular
religion.
Thus
in
order
to
have
a
congregation
you
must
have
some
coherent
religious
ideology
for
the
congregation
to
follow.
This
is
clearly
missing
from
the
College
which
describes
itself
as
non-denominational.
More
importantly,
referring
once
again
to
the
College's
calendar,
one
of
the
principles
of
the
College
was
to
encourage
the
students
to
remain
active
in
their
own
"congregations".
To
my
mind
this
indicates
that
while
there
may
have
been
a
religious
element
to
the
College’s
activities
it
can
in
no
way
describe
itself
as
being
the
focus
for
its
students'
religious
life.
This
brings
me
to
the
second
branch
of
the
function
test.
Obviously,
both
of
the
appellents
are
involved
in
full-time
administrative
service.
Therefore,
the
only
question
is
whether
or
not
their
appointment
by
the
College
is
also
an
appointment
by
a
religious
order
or
religious
denomination.
To
a
large
degree,
the
answer
to
this
question
has
been
provided
by
my
earlier
comments.
To
reiterate,
the
College
cannot
be
viewed
as
a
religious
denomination
for
two
essential
reasons.
The
first
of
these
is
that
the
College
itself
eschews
this
characterization
and
declares,
in
both
its
enabling
legislation
and
its
calender,
that
it
is
non-denominational.
Given
the
decision
of
the
Ontario
Court
of
Appeal
in
Greenlees
v.
A.-G.
Canada,
supra,
this
is
enough
to
be
determinative.
But,
more
substantively,
in
order
to
have
a
denomination
you
must
also
have
some
coherent
ideology
which
binds
the
members
of
the
denomination
and
distinguishes
them
from
other
members
of
the
society.
The
appellants
argue
that
this
is
found
in
the
College's
doctrinal
statement.
But,
even
ignoring
the
fact
that
this
does
not
seem
to
have
been
strictly
enforced,
the
elements
found
in
the
statement
are
not
sufficient
to
constitute
a
religious
ideology.
To
begin
with,
the
principles
found
within
the
statement
are
nothing
more
than
a
broad
affirmation
of
basic
Judea-Christian
beliefs
that
are
shared
by
most
members
of
society
(in
one
form
or
another).
More
importantly,
while
the
aims
of
the
College
may
be
to
further
these
principles
in
one
manner
or
another,
there
is
no
element
of
worship
to
the
College's
activities
and
they
cannot
be
said
to
be
united
by
a
common
faith,
that
is,
the
doctrinal
statement
represents
only
a
small
part
of
the
religious
beliefs
of
the
signatories
thereto.
In
summary,
the
hallmark
of
a
religious
denomination
is
a
set
of
religious
beliefs
or
ideology
which
are
sufficiently
distinct
to
distinguish
the
denomination
or
rather
its
members
from
society
as
a
whole.
The
College's
doctrinal
statement
is
far
too
broad
and
nebulous
to
achieve
this.
The
final
question
to
be
determined
is
whether
the
College
can
be
considered
a
religious
order.
Once
again,
this
question
has
been
essentially
answered
in
the
earlier
part
of
my
reasons.
In
order
to
be
a
member
of
a
religious
order
an
individual
must
be
associated
on
the
basis
of
and
in
the
pursuit
of
certain
religious
beliefs.
In
other
words,
the
primary
raison
d'être
of
the
organization
must
be
religious.
This
is
the
crucial
element
that
is
missing
from
the
College.
While
it
obviously
exists,
at
least
to
a
certain
extent,
to
further
religious
aims
and
goals;
it
is
primarily
an
educational
institution.
Moreover,
as
I
indicated
earlier,
the
term
member
of
a
religious
order
must
be
interpreted
ejusdem
generis
with
that
of
member
of
a
clergy.
Accordingly,
a
religious
order
is
a
group
of
people
who
although
homogeneous
vis-a-vis
themselves
can
nonetheless
be
distinguished
from
a
larger
laity.
In
ordinary
terms
they
are
members
of
a
religious
community
as
distinct
from
a
secular
one.
It
is
on
this
basis
that
the
appellants’
argument
clearly
founders.
Whatever
the
College's
religious
activities,
it
remains
essentially
a
secular
institution.
Neither
the
faculty
nor
the
students
in
any
way
detach
themselves
from
society
as
a
whole.
Finally,
it
is
important
to
recognize
that
both
the
appellants
are,
strictly
speaking,
employees
of
the
College.
Thus
their
acquiescence
to
the
doctrinal
statement
and
indeed
their
relationship
with
the
College
as
a
whole
is
essentially
one
of
master
and
servant.
While
they
may
both
personally
subscribe
to
the
College's
religious
aims
this
is
superseded
by
their
employment
relationship,
without
which
they
would
not
be
associated
with
the
College.
In
conclusion,
while
Jacob
Small,
by
virtue
of
his
ordination,
meets
the
status
test
required
by
paragraph
8(1)(c);
William
McRae
does
not.
Nor,
can
he
be
brought
within
the
class
of
regular
ministers
of
a
religious
denomination
by
virtue
of
his
activities.
Moreover,
the
College
is
neither
a
religious
order
nor
a
religious
denomination.
Rather
it
is
an
educational
institution
and
the
appellants
are
employees
thereof.
Therefore,
neither
of
the
appellants
meet
the
function
test
set
out
by
the
Act.
While
I
recognize
the
fact
that
education
of
the
candidates
for
the
Ministry
is
essential
for
the
proper
carrying
out
of
the
work
of
any
church,
ultimately
I
can
only
conclude
that
if
the
legislature
had
intended
an
exemption
for
those
engaged
in
this
activity
it
would
have
explicitly
provided
one.
Accordingly
on
this
basis,
the
appeals
herein
are
dismissed.
Appeals
dismissed.
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