When is an Advisory Board Member an Officer?
The Court was required to determine whether members of the advisory council for the NWMO were in the tenure of an office and therefore were in pensionable employment pursuant to the Canada Pension Plan, paragraph 6(1)(a).
The members of the advisory council were paid $10,000 per year on a quarterly basis, and a per diem amount of $850 for each day the member attended a meeting. They had no decision-making authority and only provided non-binding recommendations.
The Court decided that the definition of “office”, containing the words “means” and “includes” should be interpreted exhaustively with the inclusion added for greater certainty, so that the only class of offices excluded from the wide-ranging exhaustive definition are those that are related to public service or are obtained in unique ways and are officers with authority but are not mentioned in the enumerated list (eg. the Governor General).
The Minister relied on the definition of “office” in the Act, which is the same as the one in the ITA which reads:
The MNR stated that since the members were entitled to a fixed and ascertainable stipend or remuneration, they held an office pursuant to the definition, and thus fell within the definition of employment.
The taxpayers argued that since the number of meetings were not fixed, and not all members attended all meetings, and since the remuneration has a per diem component, the remuneration is neither fixed nor ascertainable.
The Court noted that this argument is contrary to M.N.R. v. The Queen in Right of Ontario and M.N.R. v. Real Estate Council of Alberta, where the Federal Court of Appeal unequivocally ruled that remuneration which is fixed in hourly or per diem amounts is “fixed or ascertainable”, even if the number of hours or days for which the office holder will be paid is uncertain. In light of these cases, the decisions relied on by the Appellant are no longer authoritative”.
|The taxpayers also argued that the advisory council members were volunteers that received an honorarium.The definition in question is both exhaustive (“means”) and inclusive (“includes”), and the taxpayer relied on both the ejusdem generis rule and the expressio unius est exlusio alterius rule. Ejusdem generis is known as a “canon of construction”, it states that when a limited list of specific things also includes a more general class, that the scope of that more general class shall be limited to other items more like the specific items in the list. The expressio unius est exlusio alterius rule states that when items are listed, anything not explicitly stated is assumed to not be included.
The court agreed that the provision used a less than precise drafting style. However, it begins with the word “means”, and this generally makes the definition exhaustive, and if it begins with “includes”, it is simply an illustration of examples and is open ended.
The definition of “office” uses both “means” and “includes” and has two components to its definition. The first portion is wide reaching but exhaustive and captures the advisory members as office holders. The problem arises with the inclusion of a more specific group of individuals in the second portion of the definition. The inclusion of this second specific enumerated list appears to be redundant as those persons would fall within the first definition. Thus, the presumption against tautology dictates that the second inclusion cannot be redundant. This second list is of enumerate public service group members so that those note listed are not meant to be included in the group.
The court referred to the noscitur a sociis rule which states that An ambiguous word or term can be clarified by considering the whole context in which it is used, without having to define the term itself.
In relying on the rule, the Court stated that there was “something about the “colour” of the enumerated list that strikes [him] as narrowing the broader definition of “office” in respect to a particular category of persons without undermining the broadness of the broader definition in respect of person not in that particular category”. The court held that the specific public service group is simply added for greater certainty to include specific person who due to their public service or somewhat unique way of attaining their position may be seen as falling outside of the broad definition of “office”. The position of the advisory council was not in the same category as the enumerated person, and the failure to enumerate them does not indicate the intention to exclude them. The enumerate group reflects the officer as an officer with authority.
The court stated that the members had a role to perform and received remuneration for that role, and in their appointed position they had tenure of office. The court also stated that:
Thus it is the office that must have a permanent nature, not the occupants of the office at any particular time, for there to be tenure of office. Even if the term of the individual was relevant, and even if the term was for a fixed period, the person tenure of each member has in fact enjoyed is sufficient for them to be said to have held the position in a meaningful way.
– Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3
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