Lafleur v. M.N.R., docket 97-67-UI

Date: 19980105

Docket: 97-67-UI

BETWEEN:

NORMAND LAFLEUR, PASTOR,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Lucie Lamarre J.T.C.C.

[[[[[[1] This is an appeal from a decision by the Minister of National Revenue ("the Minister") by which it was determined that the appellant’s employment while he was associated with the Yakima Bible Baptist Church of the U.S. ("Yakima") from August 19, 1995 onwards was insurable. The Minister relied on s. 4(1)(c) and (3)(e) of the Unemployment Insurance Act ("the Act") and s. 12(c) of the Unemployment Insurance Regulations ("the Regulations"). He found that the appellant had been a clergyman with Yakima since August 19, 1995 and that employment of a clergyman or member of a religious order is included in insurable employment. The appellant argued that he had not held insurable employment within the meaning of the Act.

Facts

[ [[][2] In making his determination the Minister relied on the facts set out in paragraph 4 of the Reply to the Notice of Appeal. Those facts read as follows:

[TRANSLATION]

(a) the appellant works as a clergyman and was ordained on September 2, 1988;

(b) the appellant has not taken a vow of poverty;

(c) until 1991 the appellant worked at the Capital City Baptist Church in Victoria, British Columbia, and was paid as an employee;

(d) from 1991 to August 1995 the appellant spent six to seven months a year in the United States as an itinerant preacher and preached in various churches, and those churches regularly sent offerings to the Yakima Bible Baptist Church ("Yakima"), which deposited the offerings in the appellant's personal bank account;

(e) in August 1995 the appellant came to Montréal, where he served with the Église Baptiste de Montréal until summer 1996;

(f) since the summer of 1996 the appellant has lived in Hull, Quebec, where he is currently setting up the Église Biblique Baptiste de l'Outaouais;

(g) since August 1995 the churches have continued sending cheques to Yakima for the appellant in the form of offerings;

(h) the terms and conditions of service of and the nature of the work performed by the appellant are similar to the terms and conditions of service of and the nature of work performed by persons employed under a contract of service . . .

[[3] Only the appellant testified at the hearing. He admitted subparagraphs (a), (b), (e), (f) and (g). He admitted subparagraph (d) for 1995 only.

[[4] The appellant is pastor of the Église Biblique Baptiste de l'Outaouais. He explained that a pastor is elected for life by the members of the Church assembly. He can only be removed for immorality or heresy.

[[5] The appellant receives financial support from several churches, 35 of which are in the United States and 14 in Canada. Some churches make out cheques regularly, others temporarily or irregularly. In the U.S., some churches deposit money in the appellant's personal account through Yakima. Others send money to the appellant directly. According to the appellant, 69 percent of his financial support comes from U.S. churches through Yakima, 10 percent comes from Canadian churches through a single church in Canada and 21 percent is paid to him directly.

[[6] The appellant's income is not fixed. It varies monthly, in the discretion of the churches which finance him. If the appellant needs money, he is responsible for approaching the assemblies of members of other churches to inform them of his financial needs and for going to collect the money he needs.

[[7]Although the appellant mentioned that eventually the Église Baptiste de l'Outaouais (which was completed in September 1997) might take over his financial support, he currently receives nothing from that church.

Analysis

[[8]Section 4(1)(c) and (3)(e) of the Act reads as follows:

4. (1) The Commission may, with the approval of the Governor in Council, make regulations for including in insurable employment

. . .

(c) any employment that is not employment under a contract of service if it appears to the Commission that the terms and conditions of service of and the nature of the work performed by persons employed in that employment are similar to the terms and conditions of service of and the nature of the work performed by persons employed under a contract of service . . .

4. (3) The Commission may, with the approval of the Governor in Council, make regulations for excepting from insurable employment

(e) the employment of a member of a religious order who has taken a vow of poverty and whose remuneration is paid directly or by him to the order . . .

[[9]Section 12(c) of the Regulations reads as follows:

12. Employment in any of the following employments, unless it is excepted employment under subsection 3(2) of the Act or excepted from insurable employment by any other provision of these regulations, is included in insurable employment:

(c) employment of a person as a clergyman or member of a religious order . . .

[[10] In view of the admissions made by the appellant, it is clear here that if there is employment on other grounds it cannot be excepted from insurable employment under s. 4(3)(e) of the Act. However, for a clergyman or a member of a religious order to be regarded as holding insurable employment under s. 12(c) of the Regulations, to begin with the terms and conditions of service of and the nature of the work performed must be similar to the terms and conditions of service of and the nature of the work performed by persons employed under a contract of service (s. 4(1)(c) of the Act).

[[11] In this situation, although the appellant was elected by the assembly of the members of the Church, once elected he was in charge of his own actions. The appellant was appointed for life and so could not be laid off. He could only be removed for immorality or heresy. Further, the appellant received no fixed pay from the church where he served as pastor. During the period at issue he received financial support from quite a large number of churches. It was the appellant who was responsible for finding that financial support.

[[12]Accordingly, it appears to the Court that in the circumstances the terms and conditions of service of and the nature of the work performed by the appellant since August 19, 1995 are not similar to those which would apply to persons employed under a contract of service. The employment is therefore not insurable under s. 12(c) of the Regulations.

[[13] The appeal is accordingly allowed and the Minister's determination reversed.

Signed at Ottawa, Canada, January 5, 1998.

Lucie Lamarre

J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 16th day of November 1998.

Kathryn Barnard, Revisor