BETWEEN:
NUCLEAR WASTE MANAGEMENT ORGANIZATION,
and
THE MINISTER OF NATIONAL REVENUE,
____________________________________________________________________
Appeal heard on April 26, 2012 at Toronto, Ontario
Before: The Honourable Justice J.E. Hershfield
Appearances:
|
Patrick Moran
|
|
____________________________________________________________________
The appeal is dismissed, without costs, and the decisions of the Minister of National Revenue are confirmed, in accordance with and for the reasons set out in the attached Reasons for Judgment.
Signed at Ottawa, Canada this 18th day of June 2012.
BETWEEN:
NUCLEAR WASTE MANAGEMENT ORGANIZATION,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
[1] This is an appeal by Nuclear Waste Management Organization (the “NWMO”), a corporation constituted pursuant to the Nuclear Fuel Waste Act[1] and Part II of the Canada Corporations Act,[2] against decisions of the Minister of National Revenue (the “Minister”).
[2] The decisions of the Minister being appealed confirmed rulings that members of the Appellant’s Advisory Council were in the tenure of an office and therefore were in pensionable employment pursuant to paragraph 6(1)(a) of the Canada Pension Plan (the “Plan”).[3]
[3] The Appellant contends that the Advisory Council members did not hold an office with the Appellant and that there was no employment relationship between the Appellant and the Advisory Council members.
[4] The persons affected by the Minister’s rulings of the employment status of members of the Appellant’s Advisory committee are:
|
Advisory Council members affected by the ruling |
Relevant Periods |
|
Helen C. Cooper |
January 1, 2005 to December 31, 2007 |
|
David Cameron |
January 1, 2006 to December 31, 2009 |
|
Marlyn Cook |
January 1, 2008 to December 31, 2009 |
|
Frederick Gilbert |
January 1, 2006 to December 31, 2009 |
|
Rudyard Griffith |
January 1, 2008 to December 31, 2009 |
|
Donald Obonsawin |
January 1, 2006 to December 31, 2009 |
Background
[5] The background facts set out in the Appellant’s Amended Notice of Appeal are attached to these Reasons as Appendix 1 and the background assumptions of fact relied on by the Minister are attached to these Reasons as Appendix 2.
[6] In general terms, the factual background described in the pleadings and relied on by each of the parties are not materially different. Indeed, no witnesses were called at the hearing and counsel for each party acknowledged that the facts relied on by the other were in all material respects admitted.
Issues
[7] The sole basis for the Minister’s confirmation of the rulings that the members of the Advisory Council were engaged in pensionable employment is the definition of employment in subsection 2(1) of the Plan which provides as follows:
“employment” means the state of being employed under an express or implied contract of service or apprenticeship, and includes the tenure of an office; [Emphasis Added.]
[8] Further the term “office” is defined in subsection 2(1) of the Plan as follows:
“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;
[9] The sole issue then in this appeal is whether or not the members of the Appellant’s Advisory Council held an office during the relevant periods.
Facts and Submissions
[10] Perhaps the most important fact upon which the Respondent relies is the method of compensation which is set out in paragraphs 9 (u) and (v) of the Reply to the Notice of Appeal (the “Reply”). They provide for the remuneration to be paid to the members of the Advisory Council. Such remuneration is as follows:[4]
…
(u) the Appellant paid members of the Advisory Council $10,000 per year – […] – on a quarterly basis;
(v) the Appellant paid members of the Advisory Council a per diem of $850 – […] – for each day the member attended a meeting of the Advisory Council; and
…
[11] Essentially, the Respondent’s argument comes down to the assertion that the Advisory Council members were entitled to a fixed or ascertainable stipend or remuneration and therefore by definition held an “office” pursuant to subsection 2(1) of the Plan and thereby fell within the definition of “employment” pursuant to that same subsection.
[12] The Appellant submitted two books of documents including the appointment instruments, schedules, agendas and minutes of meetings of the Advisory Council and the Triennial Report of the NWMO for the period 2008 to 2010 (the “Report”).
[13] The appointment letters and schedules, agendas and minutes of meetings of the Advisory Council confirm that the Council members were expected to meet three to six times a year, that the number of times the Council met during the period in question varied between four and seven and that not all members attended all meetings.
[14] The Appellant argues that since the number of Advisory Council meetings varies and its members do not attend all meetings and since a portion of their remuneration is based on the number of meetings attended, their remuneration, which is just an honorarium, is neither fixed nor ascertainable and therefore not remuneration contemplated in the definition of “office”. Clearly, this position is contrary to the recent decisions of M.N.R. v. The Queen in Right of Ontario[5] and M.N.R. v. Real Estate Council of Alberta,[6] 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.[7]
[15] Other submissions made by the Appellant require my setting out briefly additional facts.[8] They are not in any material way different from the facts set out and relied upon in Appendix 1:
· the Appellant is a non-profit corporation established by Canada’s nuclear electricity producers in accordance with the Nuclear Fuel Waste Act to provide recommendations on the long-term management of used nuclear fuel;
· the Appellant recommended an approach known as Adoptive Phased Management. The Appellant is responsible for its implementation. That is, it is responsible for the long-term management of Canada’s used nuclear fuels;
· the Appellant provides annual reports to the Minister of Natural Resources[9] and every three years the report (“the Triennial Report”) must include a strategic plan and budget forecast for the next five years.[10] The Advisory Council is tasked with examining and commenting on the triennial reports;[11]
· the Appellant established the Advisory Council and appoints its members in accordance with the Nuclear Fuel Waste Act which sets out the requirement for its composition to reflect a broad range of expertise related to the management of nuclear fuel waste and nuclear energy matters as well being knowledgeable in public affairs, other social sciences and traditional aboriginal matters. It must include nominees from local and regional governments and aboriginal organizations which are affected by the organization’s activities;
· The Advisory Council, holds its own meetings, comments on the Appellant’s plans and budgets, meets regularly with the Appellant to observe, follow and report on the Appellant’s activities and provides guidance and ongoing advice on proposed approaches for managing nuclear waste;
· The Advisory Council is distinct from the Appellant’s Board of Directors who manage the affairs of the Appellant; and
· The Advisory Council has no decision making authority; it gives advice and makes recommendations, neither of which have to be followed.
[16] The Appellant argues that the Advisory Council members are volunteers receiving an honorarium who do not fit in with the list of persons enumerated in the definition of “office”. The Appellant contends that the list is specific in its inclusion of elected or appointed persons in an authoritative governance position or public service role and cannot be taken to include persons in a mere advisory capacity.
[17] Appellant’s counsel referred me to several authorities on statutory construction that might readily be found to support his argument.[12] One of the more compelling references was to Louis-Philippe Pigeon’s “Drafting and Interpreting Legislation” where under the heading “Defining By Enumeration” he mentions not only the ejusdem generis rule but also the expressio unius est exclusio alterius rule. The latter takes on some life when viewed in the light of comments made at a meeting of the Special Joint Committee of the Senate and of the House of Commons as recorded in the Minutes of Proceedings and Evidence, No. 2, Tuesday, December 1, 1964.
[18] At that meeting Mr. Thorson (the then Assistant Deputy Minister of Justice) explained the difference between the definition of “office” in the Unemployment Insurance Act (as it then was) and its corresponding definition in the taxing statutes (presumably the Income Tax Act) was that in the former there is no mention of the office of Governor General. Mr. Thorson went on to say at page 117: “The office of Governor General therefore will not be regarded as being included as pensionable employment.” This suggests that Parliament intended the expressio unius est exclusio alterius rule to apply to the provision under scrutiny here.
[19] Appellant’s counsel reasons that if I find the Advisory Council members to be engaged in pensionable employment, then I must find the Governor General to be so engaged. Applying the expressio unius est exclusio alterius rule to one position requires me to apply it to others, or, not applying it to one, requires that I not apply it to others. Needless to say, he wants me to apply that rule.
[20] While I compliment counsel for his excellent research and well-crafted argument, I am not inclined to purport to make a finding here that impacts on the Governor General. He is not here to make representations. The question of his engagement status for CPP purposes is not before me.
[21] Nonetheless, it strikes me that while the definition of “office” may reflect a less than precise drafting style, it does not invite the construction advanced by the Appellant.
[22] The definition of the term “office” starts off with the word “means”. Generally, if a definition is introduced by the word “means” then that which is enumerated is exhaustive. On the other hand, if a definition is introduced by the word “includes” it is simply illustrating examples and an enumerating list is not exhaustive.
[23] The problem with the definition of “officer” here is that it uses both terms “means” and “includes”. There are two different components to the definition of an officer. The first component is far reaching and broad but is exhaustive in terms of the criterion for inclusion: “a position of an individual entitling him to a fixed or ascertainable stipend or remuneration”. Under that definition the Advisory Council members hold an “office”. While, generally at least, that might be the end of the construction exercise, we are faced with a further, more specific, type of position that Parliament seemingly meant to be applied using the expressio unius est exclusio alterius rule.
[24] The inclusion in the definition of “office” of this more specific group, limited in its membership to those expressly enumerated, appears to be redundant since its members appear to fall into the broader group embraced by the first part of that definition. However, the presumption against tautology dictates that their secondary inclusion cannot be seen as redundant.[13] To eliminate the redundancy, the more specific group, a special public service group, must, by virtue of special mention, be seen as effectively divorced from the broadly defined group and brought back in as, and only as, specifically included in that special public service group. Hence, the Governor General is carved out because that position is not included in the list of “offices” within the additional group. This result is achieved by applying the limiting ejusdem generis rule to the list but not to the broader group that precedes it.
[25] One might also find support for this construction under the microscope of the noscitur a sociis or associated meaning rule of construction.[14] There is something about the “colour” of the enumerated list that strikes me as narrowing the broader definition of “office” in respect of a particular category of person without undermining the broadness of the broader definition in respect of persons not in that particular category.
[26] Lest this reasoning appears too tortured, I suggest that this special public service group is simply added for greater certainty to include specific persons that due to their public service or somewhat unique way of attaining their position may have been seen as falling outside the initial broad definition of “office”. This conclusion is in conformity with giving the words “means” and “includes” used in sequence their ordinary meaning. Regardless, the effect is the same – the Advisory Council members hold an “office”.
[27] Having said that, I note that a suggestion was also made that the Advisory Council members did not have or occupy a “position” which is a pre-requisite in the definition of “office”. No authority was cited for this proposition.
[28] The simplest meaning of “position” in the context of the definition of “office” is that found in The Living Webster Encyclopedic Dictionary of the English Language[15] where it is defined as a “post or job”. Similarly, the Oxford English Dictionary defines “position” as “A post as an employee; a paid office, a job.”[16] “Post” in turn is defined as “a position of duty, employment or trust, to which one is assigned or appointed.”[17] Other meanings of “position” ascribed in The Canadian Oxford Dictionary speak of “paid employment”. Since defining “office” in terms of employment begs the question, the definition or meaning that seems most appropriate is: a position of duty to which one is assigned or appointed. That is, I conclude that the word “position” in the context of the subject section is a “post” in respect of which duties have been assigned by virtue of an appointment. In any event, I have little doubt that the Advisory Council members occupy a “position” in performing the role they were appointed to perform.
[29] It also needs to be mentioned that the Appellant’s counsel took me through various enactments in the attempt to persuade me that a purposive construction of the definition of “office” in the Plan would require my finding that the Advisory Council members were not meant to be included as persons having a role that made them persons having pensionable employment. The argument is rooted, however, in the fact that the role played by the Advisory Council members was not similar to that of the listed inclusions in the definition of “office”. The enumerated positions were descriptive of persons such as judges, Ministers of government departments and corporate directors who all have real authority. That is, their “office” reflects an “officer” as a person with authority. The Advisory Council members do not enjoy any authority.
[30] With respect, that argument, even coupled with capable submissions on the difficulties of working with words such as “means” and “includes” does not persuade me to find in favour of the Appellant.
[31] The Advisory Council members have a role to perform and receive remuneration for performance of that role. I am satisfied that in their appointed position, being entitled to such remuneration, they enjoyed the tenure of an office. They were, therefore, engaged in pensionable employment throughout the subject periods.
[32] 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.
[33] In Guyard v. M.N.R.,[18] Angers J. at paragraphs 27 to 32 provides an analysis of the concept of “continuity and permanence of office” as discussed in Guérin[19] and MacKeen.[20] At paragraph 33 of his judgment, Justice Angers concludes, consistent with the previous case law, that what matters is that an office must exist independently of their incumbents. Unlike the facts in Guyard where the position in question was set up for a temporary duration, the Advisory Council in the present case is tasked with reviewing and commenting on triennial reports on an ongoing basis. Given the very long lifespan of nuclear waste, absent legislative intervention to remove the Advisory Council, the “office” held by its members is of a very permanent nature.
[34] As an addendum or corollary to that aspect of the meaning of “office”, it can be said that the duration of the term that a particular person occupies or holds it, should not, as a general rule at least, be relevant to either the determination of whether an office exists or whether the holder of it has the “tenure of an office”. Still, as a finder of fact, I note that one assumption in the Reply that I have not mentioned (see Appendix 2) is that the Advisory Council members were appointed for a four year term with the possibility of reappointment.
[35] While I may be bound to accept that as an admitted fact, I note that the appointment letters included in the Agreed Book of Documents do not mention a term. The Respondent’s assumption seems to derive from 2006 letters to each member of the Advisory Council reminding them of a recent meeting where it was discussed that their appointment in 2002 was for a four year term. The letters also seek confirmation of the extension of their term through to June 30, 2007.
[36] However, the Nuclear Fuel Waste Act does not refer to any time period for the duration of appointment for the members of the Advisory Council. All but one of the members of the Advisory Council appointed in 2002 who are named as the workers engaged by the Appellant in pensionable employment continued as members for years after their so-called four year term expired as evidenced by their still holding such positions not only at the end of the period in respect of which this appeal applies but, as named therein, at the time of the 2010 Triennial Report.[21] Similarly, most of them continue to act as members today according to the Appellant’s website.[22]
[37] Even accepting that the appointments were for a fixed term, the personal tenure that each member has in fact enjoyed further illustrates not only the continuity of the positions being discussed in this appeal but the reality that each of them personally enjoyed the tenure of that office in a meaningful way.
[38] Accordingly, for all these reasons, the appeal is dismissed, without costs.
Signed at Ottawa, Canada this 18th day of June 2012.
"J.E. Hershfield"
Hershfield J.
Appendix 1
Material Facts Relied Upon
Background about the Appellant
1. The Appellant was established in 2002 by Canada’s nuclear electricity producers in accordance with the Nuclear Fuel Waste Act to assume responsibility for the long-term management of Canada’s used nuclear fuel.
2. The organization operates on a not-for-profit basis.
3. The Nuclear Fuel Waste Act required the Appellant to provide recommendations to the Government of Canada on the long-term management of used nuclear fuel, based on a three year study and public consultation process.
4. The Appellant initiated this study in 2002 and in 2005, submitted to the Minister of Natural Resources the results of the study and public consultation along with its recommendation for an approach.
5. In June 2007, the Government of Canada, authorized by the Nuclear Fuel Waste Act to decide on a management approach, selected the Appellant’s recommended approach, known as “Adaptive Phased Management”.
6. Under the Nuclear Fuel Waste Act, the Appellant is now responsible for implementing Adaptive Phased Management, subject to all necessary regulatory approvals.
7. The Nuclear Fuel Waste Act requires the Appellant to make annual reports to the Minister of Natural Resources. Every three years, the annual report must include comments made by the Advisor Council on the Appellant’s work (the Triennial report).
The Appellant’s Advisory Council
8. Section 8 of the Nuclear Fuel Waste Act specifically required the Appellant to create an Advisory Council:
8.(1) The waste management organization shall create an Advisory Council, which shall
(a) examine the study referred to in subsection 12(1) and the triennial reports referred to in section 18 that are to be submitted to the Minister; and
(b) give written comments on that study and those reports to the waste management organization.
(2) The members of the Advisory Council shall be appointed by the governing body of the waste management organization. The governing body shall make all reasonable efforts to ensure that the Advisory Council’s membership
(a) reflects a broad range of scientific and technical disciplines related to the management of nuclear fuel waste;
(b) reflects expertise, in matters of nuclear energy,
(i) in public affairs, and
(ii) as needed, in other social sciences;
(b.1)reflects expertise in traditional aboriginal knowledge; and
(c) includes representatives nominated by local and regional governments and aboriginal organizations that are affected because their economic region is specified for the approach that the Governor in Council selects under section 15 or approves under subsection 20(5).
9. As required by the Nuclear Fuel Waste Act, the Appellant’s Board of Directors established an Advisory Council in 2002.
10. The Advisory Council is authorized by the Nuclear Fuel Waste Act to comment every three years on the previous three years’ of the Appellant’s activities. The Advisory Council also comments on the Appellant’s five-year plans and budget forecasts.
11. These independent statements, which include observations on the results of the Appellant’s public consultations and analysis of any significant socio-economic effects of the Appellant’s activities, are published in the Appellant’s Triennial reports. The first such Triennial report will be issued for the year 2010.
12. The Advisory Council meets regularly with the Appellant, following closely the development of the organization’s plans and activities and providing ongoing advice.
13. Typically, the Advisory Council will hold approximately four meetings per year.
14. Agendas for these meetings are set by the Advisory Council and incorporate areas of interest which members themselves have identified as topics for discussion.
15. The Advisory Council produces its own minutes of their meeting, which are made available to the public on the Appellant’s website.
16. The Advisory Council is distinct from the Appellant’s Board of Directors, which manages the affairs of the organization as required by law.
17. Essentially, the Advisory Council is a statutorily-mandated peer review group that provides the Appellant with independent advice on its efforts to find a long-term solution to manage Canada’s used nuclear fuel, but it has no decision-making authority and its recommendations are not binding on the Appellant.
18. Membership on the Advisory Council is voluntary; members are invited to participate by the Appellant’s Board of Directors.
19. Advisory Council members have a diverse background in government, education, public service, aboriginal affairs, engineering, environmental sustainability and the not-for-profit sector.
20. The Appellant pays Advisory Council members an honorarium for their participation.
Appendix 2
Assumptions
1. In determining the Workers were employed in pensionable employment by the Appellant during the Period, the Minister made the following assumptions of fact:
Background – General
(a) the Appellant is a non-profit organization established in 2002 by Canada’s nuclear electricity producers in accordance with the Nuclear Fuel Waste Act (the “NFWA”);
(b) the Appellant was responsible for the long-term management of Canada’s used nuclear fuel;
(c) the NFWA required the Appellant to provide recommendations to the Government of Canada on the long-term management of used nuclear fuel;
(d) the Appellant was required under the NFWA to make annual reports to the Minister of Natural Resources and triennial reports to the Governor in Council;
Advisory Council
(e) the Appellant’s Board of Directors established an Advisory Council in 2002, as required under the NFWA;
(f) the Advisory Council provided general guidance and advice to the Appellant on proposed approaches for the management of nuclear fuel waste, particularly relating to public and stakeholder consultations;
(g) the Advisory Council was required to observe and report on the Appellant’s activities;
The Workers
(h) the Workers were members of the Advisory Council;
(i) members of the Advisory Council were appointed by the governing body of the Appellant, as required under the NFWA;
(j) the Appellant’s Board of Directors was responsible for ensuring that the members of the Advisory Council represented certain disciplines and expertise and stakeholders, as required under the NFWA;
(k) the Workers signed acceptances of appointment;
(l) the Workers were engaged by the Appellant for a four-year term, with the possibility of re-appointment;
(m) the Advisory Council met regularly with the Appellant, closely followed the development of the Appellant’s plans and activities, and provided ongoing counsel and advice;
(n) the Advisory Council held three to six meetings each year;
(o) the Advisory Council set the meeting agendas;
(p) the Advisory Council meetings were usually conducted at the Appellant’s offices;
(q) based on their availability, the Workers decided whether or not to attend the Advisory Council meetings;
(r) the Workers could participate in the meetings in person or by conference call;
(s) the Appellant did not supervise the Advisory Council or the Workers;
(t) the Advisory Council submitted written reports to the Appellant;
(u) the Appellant paid members of the Advisory Council $10,000 per year – except the Chair who was paid $15,000 per year – on a quarterly basis;
(v) the Appellant paid members of the Advisory Council a per diem of $850 – except the Chair who was paid $1,000 – for each day the member attended a meeting of the Advisory Council; and
(w) the Appellant reimbursed the Workers for travel expenses related to the Advisory Council and the Appellant’s Board meetings.
COURT FILE NO.: 2010-3808(CPP)
STYLE OF CAUSE: NUCLEAR WASTE MANAGEMENT ORGANIZATION AND M.N.R.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 26, 2012
REASONS FOR JUDGMENT BY: The Honourable Justice J.E. Hershfield
DATE OF JUDGMENT: June 18, 2012
APPEARANCES:
|
Counsel for the Appellant: |
Dominic C. Belley Patrick Moran
|
|
Counsel for the Respondent: |
Thang Trieu |
COUNSEL OF RECORD:
Firm: Norton Rose Canada LLP
1, Place Ville-Marie, Suite 2500
Montreal, QC, H3B 1R1
Name: Patrick Moran, General Counsel
Firm: Nuclear Waste Management Organization
22 St. Clair Ave., 6th Floor
Toronto, Ontario, M4T 2S3
For the Respondent: Myles J. Kirvan
Deputy Attorney General of Canada
Ottawa, Canada
[1] S.C. 2002, c. 23. [Nuclear Fuel Waste Act]
[2] S.C. 1970, c. 32.
[3] R.S.C., c. C-8.
[4] The omitted portion relates to the chair who was not assessed due to his age disqualifying him from having pensionable employment.
[5] 2011 FCA 314.
[6] 2012 FCA 121.
[7] Guérin v. M.N.R., 52 DTC 118, MacKeen v. M.N.R., 67 DTC 281, Merchant v. The Queen, [1984] CTC 253 (F.C.T.D.) and Real Estate Council of Alberta v. M.N.R., 2011 TCC 5.
[8] Included in the Agreed Book of Documents is the 2010 Triennial Report which includes in Chapter 14 the Advisory Council comments (pages 247 - 274). It evidences significant interaction with the Appellant in the assessment of its work and plans as well considerable independence as an advisory group.
[9] Nuclear Fuel Waste Act, supra note 1 at s. 16.
[10] Ibid. at s. 18(b).
[11] Ibid. at s. 8(1)(b).
[12] Pierre-André Côté et al, The Interpretation of Legislation in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2011) at pages 68-71 and 332-340; Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed., (Markham: LexisNexis Canada Inc., 2008) at pages 6-9, 210-243, 269-272 and 354-357; Louis-Philippe Pigeon, Drafting and Interpreting Legislation, (Toronto: Carswell, 1988) at pages 33-35 and 62.
[13] See, Sullivan, supra note 12 at pages 210-211 and footnote 30.
[14] See a brief discussion of the associated meaning or noscitur a sociis rule in paragraphs 34 and 35 of McDiarmid Lumber Ltd. v. God’s Lake First Nation, [2006] 2 S.C.R. 846.
[15] The Living Webster Encyclopedic Dictionary of the English Language, 1973-1974 Ed., s.v. “position”.
[16] The Oxford English Dictionary, March 2012 Online Ed., s.v. “position”.
[17] Supra note 15, s.v. “post”.
[18] 2007 TCC 231.
[19] Supra note 7.
[20] Supra note 7.
[21] The one exception would appear to be H.C. Cook whose term may have ended at the end of 2007.