Tax Court of Canada Judgments

Date: 19990413

Docket: 98-981-IT-I

BETWEEN:

MARGARET M. NOSEWORTHY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for judgment

Hamlyn, J.T.C.C.

[1] 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.

[2] 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.

[3] 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.

[4] 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.

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] The Archbishop in this letter refers to information he received from Fr. Bernard Pinet, O.M.I.

[10] Exhibit A-1, 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.

[11] Exhibit A-1, 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. ...

[12] Two witnesses were called by the Appellant, John O'Donnell, the author of the above-noted letter, and the Appellant, Margaret Noseworthy, the Nova Institution for Women Roman Catholic Chaplain.

[13] 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.

[14] 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.

[15] 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".

[16] 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.

[17] 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.

[18] 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.

[19] 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.[1]

[20] 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.

[21] 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

[22] Is the Appellant a "regular minister of a religious denomination" for the purposes of paragraph 8(1)(c) of the Act?

ANALYSIS

[23] 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 ....

[24] For the purposes of this hearing the counsel for the Respondent at the outset advised the Court only the status qualification was in dispute.

[25] 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

[26] 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.

[27] 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".

[28] Rip J. then continued to examine if she was a regular minister of the Roman Catholic Church. He considered and quoted the decision of Greenless 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, wherein Hogg J. referred to a decision of the High Court of Justiciary of Scotland in Saltmarsh v. Adair, [1942] S.C. 58. 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;

ii) is appointed by a body or person with the legitimate authority to appoint or ordain ministers on behalf of the denomination; and

iii) 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”.

[29] 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.

[30] More recently, Bowman J. in Kraft v. Canada, [1999] T.C.J. No. 31 (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".

[31] 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.

[32] In Austin v. Canada, [1999] T.C.J. No. 126 (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. Canada, [1997] T.C.J. No. 1191, 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.

[33] 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.

[34] 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.

[35] 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

[36] 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.

[37] 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.

[38] 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.

[39] 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

[40] 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).

[41] 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.

Signed at Ottawa, Canada, this 13th day of April 1999.

"D. Hamlyn"

J.T.C.C.

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