Hamlyn
T.C.J.:
This
appeal
arises
from
a
Notice
of
Reassessment
dated
December
22,
1997,
in
which
the
Minister
of
National
Revenue
(the
“Minister”)
denied
the
clergyman’s
residence
deduction
claimed
by
the
Appellant
in
the
1996
taxation
year,
pursuant
to
paragraph
8(1)(c)
of
the
Income
Tax
Act
(the
“Act”).
In
response,
the
Appellant
filed
a
Notice
of
Objection.
The
reassessment
was
later
confirmed
by
the
Minister
via
a
Notice
of
Confirmation
dated
February
23,
1998.
During
the
1996
taxation
year,
the
Appellant
held
the
position
of
Interfaith
Chaplain
of
the
Nova
Institution
for
Women,
in
Truro,
Nova
Scotia.
She
states
that
she
was
appointed
and
commissioned
for
this
position
by
the
Roman
Catholic
Archdiocese
of
Halifax.
In
this
position,
amongst
other
things,
the
Appellant
conducted
regular
Sunday
and
holiday
worship
services,
memorial
and
special
prayer
services.
Further,
the
Appellant
was
called
upon
to
offer
sacramental
and
pastoral
care
to
the
inmates.
The
Appellant
possesses
extensive
education
and
experience
to
qualify
her
for
the
position
of
interfaith
chaplain
including
university
bachelor
of
arts
and
bachelor
of
educational
degrees,
a
master’s
degree
in
Divinity
and
a
master’s
degree
in
Religious
Education.
The
Appellant
has
been
certified
as
a
specialist
practitioner
in
pastoral
care
or
counselling
by
the
Canadian
Association
for
Pastoral
Practice
and
Education
and
is
a
Clinical
Member
of
the
American
Association
of
Individual,
Marriage
and
Family
Therapists.
She
also
has
held
several
other
chaplain
positions
within
the
justice
and
correction
systems
in
Ontario.
At
present,
the
Appellant
is
the
Roman
Catholic
chaplain
at
the
Springhill
penal
institution
in
Nova
Scotia.
Her
appointment
as
interfaith
chaplain
at
the
Nova
Institution
for
Women
arose
as
a
result
of
a
contractual
relationship
between
Her
Majesty
The
Queen
in
the
right
of
Canada
and
the
Roman
Catholic
Episcopal
Corporation
of
Halifax
to
provide
services
to
Nova
Institution
for
Women.
The
Interfaith
Committee
on
Chaplaincy
in
The
Correctional
Service
of
Canada
(hereinafter
called
“CSC”)
prescribed
the
criteria
for
appointment
and
conducted
the
search
for
the
interfaith
chaplain.
One
of
the
primary
qualifications
for
interfaith
chaplains
was
ecclesiastical
status
that
is
endorsement
by
the
ecclesiastical
authority
to
do
the
work
of
the
chaplain.
After
the
Appellant’s
selection
as
an
interfaith
chaplain
candidate
the
Roman
Catholic
Archbishop
of
Halifax
confirmed
her
appointment
to
the
position
of
chaplain.
In
the
confirmation
of
appointment
letter
(exhibit
A-1,
tab
3)
the
Archbishop
states:
As
Chaplain,
you
are
entrusted
with
the
pastoral
care
of
the
population
of
the
Truro
Federal
Correctional
Institution
for
Women.
You
are
also
authorized
to
offer
a
reflection
and
instruction
on
the
Word
of
God
during
the
Sunday
celebration
of
the
Eucharist
and
at
other
celebrations
as
required.
The
Archbishop
goes
on
to
say
in
relation
to
work
related
benefits:
The
Archdiocese
has
a
benefit
package
that
includes
long
term
disability,
medical
and
pension
benefits.
The
Archbishop
in
this
letter
refers
to
information
he
received
from
Fr.
Bernard
Pinet,
O.M.I.
Exhibit
A-l,
tab
4
is
a
post-appointment
letter
signed
by
Rev.
Bernard
Pinet,
O.M.I.,
Canadian
Conference
of
Catholic
Bishops’
representative
on
the
Interfaith
Committee
on
Chaplaincy.
In
that
letter
he
states:
...
Margaret
(Peg)
Noseworthy
is
a
Roman
Catholic
Chaplain
regularly
serving
as
a
minister
of
religion
at
Nova
Institution
for
Women,
August
1995-1998...
Margaret
(Peg)
Noseworthy
has
been
duly
appointed
by
the
Correctional
Service
of
Canada
and
the
Interfaith
Committee
...
She
is
also
authorized
under
a
letter
of
ecclesiastical
authority
by
the
local
diocese.
Exhibit
A-l,
tab
2
is
a
letter
(November
21,
1997),
from
John
K.
O’Donnell,
Director
of
Administration,
Catholic
Pastoral
Centre
Archdiocese
of
Halifax
to
Revenue
Canada
who
states:
...Ms.
Margaret
Noseworthy
has
been
working
full-time
as
a
regular
minister
in
the
service
of
the
Archdiocese
of
Halifax
since
August,
1995....
Two
witnesses
were
called
by
the
Appellant,
John
O’
Donnell,
the
author
of
the
above-noted
letter,
and
the
Appellant,
Margaret
Nose
worthy,
the
Nova
Institution
for
Women
Roman
Catholic
Chaplain.
Mr.
O’
Donnell
advised
that
the
Appellant
was
an
employee
of
the
archdiocese
and
that
the
CSC
funded
her
employment
one
year
at
a
time.
The
employment
was
considered
to
be
permanent
employment
with
entitlement
to
health
and
pension
benefits.
He
further
advised
that
the
provision
of
prison
chaplains
was
not
contingent
on
funding
from
CSC.
He
said
the
archdiocese
could
seek
other
means
to
fund
the
chaplaincy
if
CSC
funding
was
lost.
He
stated
that
he
viewed
the
Appellant
as
a
regular
minister
of
the
Roman
Catholic
Church.
She
carries
a
significant
responsibility
that
sets
her
apart
from
the
other
laity
in
the
Roman
Catholic
Church
and
he
emphasized
that
her
appointment
from
the
Archbishop
with
its
prescribed
duties
confirms
this
conclusion.
He
considered
the
distribution
of
Communion
to
the
inmates
as
part
of
providing
one
of
the
Church’s
sacraments.
While
she
could
not
consecrate
the
Communion
she
received
the
consecrated
Communion
and
carried-on
from
there
in
terms
of
distribution.
He
indicated
that
the
role
of
a
chaplain
within
the
Roman
Catholic
Church
as
performed
by
the
laity
instead
of
a
priest,
is
directly
related
to
the
decline
in
the
Roman
Catholic
priest
population.
The
Church
has
developed
this
procedure
because,
as
he
stated,
“the
Church
must
go
on”.
Ms.
Noseworthy
outlined
her
extensive
educational
background
and
work
experience
leading
to
her
appointment
to
the
Nova
Institution
for
Women.
She
indicated
that
she
sees
herself
as
a
minister
and
that
she
has,
within
the
Roman
Catholic
Church,
ecclesiastical
authority
to
minister.
The
Appellant
stated
that
from
the
Church’s
point
of
view
she
is
not
a
member
of
the
clergy
but
she
stated
that
from
a
reality
point
of
view,
and
also
from
the
Church’s
point
of
view,
she
is
the
regular
minister
to
the
confined
inmates
of
the
Nova
Institution
for
Women
100%
of
the
time
and
that
with
ecclesiastical
backing
from
the
Archbishop
she
had
the
authoritative
right
to
provide
pastoral
care
to
all
members
of
prison
population.
Specifically,
the
Appellant,
on
a
continuing
and
regular
basis
in
terms
of
worship
and
sacrament,
offered
and
led
worship
services
on
Sunday,
including
opening
prayers,
penitential
rights,
prayers
of
the
faithful,
prayer
of
confession,
liturgy
on
the
Word
including
reflection
and
instruction
on
the
Word,
prayers
on
behalf
of
the
Church,
prayers
on
behalf
of
the
congregation,
a
rite
of
thanksgiving,
the
distribution
of
Communion
and
a
benediction
and
closing.
In
relation
to
other
duties,
she
also
offered
pastoral
care,
counselling
and
mediation
as
a
part
of
crisis
intervention
when
required.
She
was
on
call
24
hours
a
day
and
mandated
to
respond
to
emergency
and
crisis
situations.
In
particular,
she
counselled
inmates
who
found
themselves
in
dissociation
or
segregation
or
in
hospital.
She
also
performed
committal,
memorial
or
other
services
as
needed.
It
is
clear
from
the
role
of
the
Appellant
she
was
the
spiritual
leader
within
the
institution.
Within
her
mandate,
she
decided
what
and
how
the
work
was
to
be
done.
Her
appointment
was
all
encompassing
and
was
not
limited
as
to
time.
She
was
always
present
and
seen
within
the
institution.
In
her
relationship
with
Roman
Catholic
“clergy”
while
she
distinguished
herself
on
the
basis
of
ordination
and
canon
law,
she
confirmed
she
was
treated
by
the
clergy
as
a
minister
to
the
incarcerated
group
of
people
with
the
ecclesiastical
authority
to
minister.
She
said
she
was
seen
as
a
peer
and
she
liased
with
them
on
a
collegial
basis.
Issue
Is
the
Appellant
a
“regular
minister
of
a
religious
denomination”
for
the
purposes
of
paragraph
8(1)(c)
of
the
Act?
Analysis
Paragraph
8(1
)(c)
of
the
Act
reads
as
follows:
8.(1)
In
computing
a
taxpayer’s
income
for
a
taxation
year
form
an
office
or
employment,
there
may
be
deducted
such
of
the
following
amounts
as
are
wholly
applicable
to
that
source
of
such
part
of
the
following
amounts
as
may
be
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....
For
the
purposes
of
this
hearing
the
counsel
for
the
Respondent
at
the
outset
advised
the
Court
only
the
status
qualification
was
in
dispute.
Thus,
the
evidence
and
argument
in
the
hearing
as
it
developed
was
focussed
specifically
on
whether
the
Appellant
was:
...a
regular
minister
of
a
religious
denomination...
Regular
Minister
of
a
Religious
Denomination
The
primary
basis
of
the
Minister’s
denial
of
the
clergyman’s
residence
deduction
is
that
the
Appellant
is
not
an
ordained
member
of
the
clergy
of
the
Roman
Catholic
religion
and
not
a
regular
minister
of
the
Roman
Catholic
Church.
The
meaning
of
“regular
minister
of
a
religious
denomination”
and
“member
of
the
clergy”
has
been
judicially
considered
a
number
of
times
by
this
Court.
Hardy
v.
R.,
[1998]
2
C.T.C.
2013
(T.C.C.),
was
decided
based
on
facts
that
have
some
similarities
with
those
in
the
instant
case.
Ms.
Hardy,
the
Appellant,
was
a
Lay
Pastoral
Minister
appointed
by
the
Bishop
of
London
of
the
Roman
Catholic
Church.
She
was
responsible
for
assisting
with
the
distribution
of
Holy
Communion
at
mass
and
taking
Communion
to
the
sick
and
shut-ins
of
the
parish.
She
was
also
authorized
to
conduct
funerals
and
could
perform
marriages
with
the
permission
of
the
Bishop.
The
Court
found
that
the
Pastor
of
her
parish
held
greater
responsibilities,
as
he
was
responsible
for
the
administration
of
the
parish
and
could
lead
Mass
and
hear
confessions.
Based
on
this
and
the
finding
that
her
religion
does
not
ordain
women,
Rip
J.
concluded
that
the
Appellant
was
not
a
“member
of
the
clergy”.
Rip
J.
then
continued
to
examine
if
she
was
a
regular
minister
of
the
Roman
Catholic
Church.
He
considered
and
quoted
the
decision
of
Greenlees
v.
Canada
(Attorney
General),
[1945]
O.R.
411
(Ont.
H.C.),
aff’d,
[1946]
O.R.
90
(Ont.
C.A.),
leave
to
appeal
refused
[1946]
S.C.R.
462
(S.C.C.),
wherein
Hogg
J.
referred
to
a
decision
of
the
High
Court
of
Justiciary
of
Scotland
in
Saltmarsh
v.
Adaire,
[1942]
S.C.
58
(Scotland
Ct.
Just.).
Rip
J.
observed
at
paragraph
21:
Thus,
Lord
Justice-General
Normand
and
Lord
Moncrieff
appear
to
infer
that
a
“regular
minister”
is
one
who
i)
performs
spiritual
duties,
the
conduct
of
religious
services,
the
administration
of
sacraments
and
the
like;
il)
is
appointed
by
a
body
or
person
with
the
legitimate
authority
to
appoint
or
ordain
ministers
on
behalf
of
the
denomination;
and
111)
is
in
a
position
or
appointment
of
some
permanence.
In
the
absence
of
a
legitimate
appointment,
the
mere
performance
of
the
duties
of
a
minister
will
not
suffice,
in
their
view,
to
constitute
a
“regular
minister”.
After
reviewing
these
elements,
Rip
J.
found
that
the
Appellant
was
not
a
regular
minister
of
the
Roman
Catholic
Church
because
her
appointment
was
made
at
the
pleasure
of
the
Bishop
and
was
therefore
not
permanent
as
required
by
the
above
criteria.
Moreover,
her
performance
of
certain
sacraments
of
the
Roman
Catholic
Church
was
limited
to
that
of
Church
laity.
Thus,
he
concluded
she
was
not
a
regular
minister
of
a
religious
denomination.
More
recently,
Bowman
J.
in
Kraft
v.
Canada
(February
26,
1999),
Doc.
DRS
99-08110
(T.C.C.),
commented
on
the
role
that
ordination
takes
with
respect
to
defining
the
term
“clergy”
for
the
purpose
of
paragraph
8(1)(c).
He
stated
at
paragraph
9
that:
Whether
one
is
a
member
of
the
clergy
or
a
regular
minister
of
a
religious
denomination
depends
upon
the
practices
of
the
particular
denomination.
There
seems
to
be
an
assumption,
unwarranted
in
my
view,
that
to
be
a
member
of
the
“clergy”
the
particular
denomination
must
call
the
ceremony
whereby
the
person
is
set
apart
spiritually
“ordination”.
This
faith
in
the
power
of
words
to
create
reality
is
misplaced.
I
should
have
thought
that
what
matters
to
whether
a
person
is
a
member
of
the
clergy
is
what
he
or
she
is,
not
what
the
particular
denomination
calls
the
ceremony
whereby
the
person
gets
there.
The
ritual
whereby
one
becomes
a
minister
or
a
person
set
apart
from
the
laity
as
a
spiritual
leader
in
a
particular
church
may
not
in
all
cases
be
called
ordination.
The
argument
for
restricting
the
term
“clergy”
to
persons
who
are
“ordained”
seems
to
be
premised
on
a
requirement
not
only
that
there
be
a
formal
ceremony
investing
the
person
with
the
trappings
and
accoutrements,
tangible
and
intangible,
of
spiritual
superiority
appropriate
to
the
particular
church,
but
also
that
the
church
call
the
ritual
“ordination”.
He
continued
at
paragraph
13:
Whether
one
is
member
of
the
clergy
in
a
particular
church
depends
upon
the
procedures
and
rituals
of
that
church.
It
requires
a
formal
act
of
recognition
whereby
that
person
is
set
apart
from
the
other
members
of
the
church
as
a
spiritual
leader.
It
does
not
require
necessarily
that
it
be
done
by
someone
higher
up
the
ecclesiastical
hierarchy.
Some
churches
recognize
no
such
hierarchy.
It
may
be
done
by
the
congregation.
It
requires
a
formal,
serious
and
long-term
commitment
to
the
ministry.
If
these
elements
exist,
whether
or
not
the
particular
denomination
calls
the
formal
ritual
“ordination”,
the
person
accorded
that
status
by
the
church
is
in
my
view
a
member
of
the
clergy.
In
Austin
v.
R.,
[1999]
2
C.T.C.
2270
(T.C.C.),
Bowman
J.
held
that
a
Minister
of
Music
qualified
for
the
residence
deduction
although
he
was
not
ordained
and
was
a
member
of
a
religious
denomination
which
provided
for
ordination
of
its
clergy.
At
paragraphs
33
through
36
of
his
Reasons
for
Judgment,
he
adopted
the
criteria
quoted
by
Rip
J.
in
Hardy
(supra)
and
his
comments
concerning
the
term
“regular
minister”:
33
...Rip
J.
in
Hardy
v.
R,
[1998]
2
C.T.C.
2013,
discussed
at
some
length
the
jurisprudence
relating
to
the
words
“regular
minister”.
His
comments
are
most
instructive.
At
paragraph
8:
[para
8]
I
agree
with
respondent’s
counsel
that
a
regular
minister
need
not
necessarily
be
one
who
is
ordained
to
qualify
for
the
cleric’s
residence
deduction.
36
I
am
satisfied
that
the
appellant
here
was
a
“regular
minister”
of
the
Pentecostal
Church.
He
meets
all
of
the
criteria
set
out
by
Rip
J.
His
appointment
was
made
in
accordance
with
formal
procedures
and
was
permanent
so
long
as
he
remained
in
the
function.
Hence,
it
is
apparent
that
one
need
not
be
ordained,
even
if
ordination
is
practiced
within
one’s
religious
denomination
in
order
to
qualify
for
the
deduction
if
one
meets
the
criteria.
While
somewhat
similar,
the
distinctions
between
Hardy
(supra)
and
the
Appellant’s
case
are
significant.
The
Appellant
in
this
case
was
appointed
a
Roman
Catholic
chaplain,
she
was
not
an
assistant
to
another
church
official.
She
herself
held
the
designated
office.
In
terms
of
spiritual
Roman
Catholic
duties,
she
was
authorized
to
offer
all
the
prayers
and
rites
and
gave
a
reflection
and
instruction
on
the
Word
of
God
during
the
Sunday
services
and
performed
other
duties
and
celebrations
as
required.
Her
appointment
was
broad,
extensive
and
permanent
with
accompanying
health,
pension
and
other
benefits.
Even
if
funding
was
withdrawn,
the
evidence
is
the
Roman
Catholic
chaplain’s
work
would
continue.
She
was
the
spiritual
leader
and
had
the
primary
responsibility
for
the
ministry
at
the
Nova
Institution
for
Women
and
she
performed
the
duties
of
this
spiritual
leadership
herself
with
the
appropriate
ecclesiastical
authority
to
do
so.
Conclusion
I
find
the
Appellant
was
set
apart
from
the
other
members
of
the
Church
laity.
She
was
designated
in
the
closed
confined
prison
environment
a
prison
chaplain
by
the
Interfaith
Committee
and
by
the
act
of
appointment
by
the
Archbishop,
the
appropriate
Roman
Catholic
authority.
She
has
undertaken
a
formal,
serious,
long-term
commitment
to
her
ministry.
She
performs
spiritual
duties,
gives
pastoral
care,
conducts
religious
services
(including
prayers
and
Sunday
worship)
and
she
administers
to
this
confined
population
as
much
as
possible
the
rituals,
rites
and
sacraments
of
the
Church.
Her
appointment
was
continuing
and
permanent.
This
position,
from
the
perspective
of
the
Roman
Catholic
Church,
is
that
the
chaplain
services
will
carry
on
whether
the
CSC
funding
is
in
place
or
not.
She
is
looked
upon
by
her
confined
congregation
as
their
spiritual
leader
and
she
is
in
fact
described
by
her
Church
as
a
minister.
In
essence,
I
find
the
Appellant
is
a
“regular
minister”
of
the
Roman
Catholic
Church
for
the
purposes
of
paragraph
8(1)(c)
of
the
Act.
Decision
The
appeal
is
allowed
and
the
assessment
is
referred
back
to
the
Minister
for
reconsideration
and
reassessment
on
the
basis
that
the
Appellant
is
a
regular
minister
of
the
Roman
Catholic
Church
for
the
purposes
of
paragraph
8(1
)(c).
The
Appellant
being
fully
successful
in
her
appeal
and
being
represented
by
counsel
in
the
hearing,
costs
are
fixed
in
the
amount
of
$500
and
are
awarded
to
the
Appellant.
Appeal
allowed.
Email this Content