The Minister relied on the   definition of “office” in the Act, which is the same as the one in   the ITA which reads:

“office”   means the position of an individual entitling him to a fixed or ascertainable   stipend or remuneration and includes a judicial office, the office of a   minister of the Crown, the office of a lieutenant governor, the office of a   member of the Senate or House of Commons, a member of a legislative assembly   or a member of a legislative or executive council and any other office the   incumbent of which is elected by popular vote or is elected or appointed in a   representative capacity, and also includes the position of a corporation   director, and “officer” means a person holding such an office;

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   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:

In coming   to this conclusion, I also find comfort in another implicit aspect of an   “office”, namely, that it imports a position of continuity and permanence   that is independent of the person who holds it. In this sense, it is the   nature of the position, not the period it is held by a particular person,   which enables a finding that the occupant of the position has the tenure of   an office.

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.