Lefebvre v. The Queen

Lefebvre v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2008-06-27
Neutral citation
2008 TCC 395
File numbers
2007-1075(IT)I
Judges and Taxing Officers
Louise Lamarre Proulx
Subjects
Income Tax Act
Decision Content
Docket: 2007-1075(IT)I
BETWEEN:
COLETTE LEFEBVRE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Pierrette Fortin Raymond (2007-1181(IT)I), Lisette Simard Côté (2007‑1528(IT)I), Michèle Richard Auclair (2007-1603(IT)I), Denise Robert Godin (2007‑1621(IT)I), Paul De Leeuw (2007-2094(IT)I), Micheline Bolduc (2007-2542(IT)I), Jean‑Pierre Desnoyers (2007‑2096(IT)I) and Linda Diamond (2007-4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Pierrette Fortin Raymond
The Appellant herself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-1181(IT)I
BETWEEN:
PIERRETTE FORTIN RAYMOND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Lisette Simard Côté (2007-1528(IT)I), Michèle Richard Auclair (2007-1603(IT)I), Denise Robert Godin (2007‑1621(IT)I), Paul De Leeuw (2007-2094(IT)I), Micheline Bolduc (2007‑2542(IT)I), Jean‑Pierre Desnoyers (2007-2096(IT)I) and Linda Diamond (2007-4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
For the Appellant:
The Appellant herself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-1528(IT)I
BETWEEN:
LISETTE SIMARD CÔTÉ,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Pierrette Fortin Raymond (2007-1181(IT)I), Michèle Richard Auclair (2007-1603(IT)I), Denise Robert Godin (2007‑1621(IT)I), Paul De Leeuw (2007-2094(IT)I), Micheline Bolduc (2007‑2542(IT)I), Jean‑Pierre Desnoyers (2007-2096(IT)I) and Linda Diamond (2007-4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Pierrette Fortin Raymond
The Appellant herself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-1603(IT)I
BETWEEN:
MICHÈLE RICHARD AUCLAIR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Pierrette Fortin Raymond (2007-1181(IT)I), Lisette Simard Côté (2007-1528(IT)I), Denise Robert Godin (2007‑1621(IT)I), Paul De Leeuw (2007-2094(IT)I), Micheline Bolduc (2007‑2542(IT)I), Jean‑Pierre Desnoyers (2007-2096(IT)I) and Linda Diamond (2007-4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Pierrette Fortin Raymond
The Appellant herself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-1621(IT)I
BETWEEN:
DENISE ROBERT GODIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
__________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Pierrette Fortin Raymond (2007-1181(IT)I), Lisette Simard Côté (2007-1528(IT)I), Michèle Richard Auclair (2007‑1603(IT)I), Paul De Leeuw (2007-2094(IT)I), Micheline Bolduc (2007‑2542(IT)I), Jean‑Pierre Desnoyers (2007-2096(IT)I) and Linda Diamond (2007‑4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Pierrette Fortin Raymond
The Appellant herself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is allowed for the period within that year that expires on August 1, 2005, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-2094(IT)I
BETWEEN:
PAUL DE LEEUW,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Pierrette Fortin Raymond (2007-1181(IT)I), Lisette Simard Côté (2007-1528(IT)I), Michèle Richard Auclair (2007‑1603(IT)I), Denise Robert Godin (2007-1621(IT)I), Micheline Bolduc (2007-2542(IT)I), Jean‑Pierre Desnoyers (2007‑2096(IT)I) and Linda Diamond (2007-4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Pierrette Fortin Raymond
The Appellant himself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-2542(IT)I
BETWEEN:
MICHELINE BOLDUC,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Pierrette Fortin Raymond (2007-1181(IT)I), Lisette Simard Côté (2007-1528(IT)I), Michèle Richard Auclair (2007‑1603(IT)I), Denise Robert Godin (2007-1621(IT)I), Paul De Leeuw (2007-2094(IT)I), Jean‑Pierre Desnoyers (2007-2096(IT)I) and Linda Diamond (2007-4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Pierrette Fortin Raymond
The Appellant herself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-2096(IT)I
BETWEEN:
JEAN‑PIERRE DESNOYERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Pierrette Fortin Raymond (2007-1181(IT)I), Lisette Simard Côté (2007-1528(IT)I), Michèle Richard Auclair (2007‑1603(IT)I), Denise Robert Godin (2007-1621(IT)I),
Paul De Leeuw (2007-2094(IT)I), Micheline Bolduc (2007-2542(IT)I)
and Linda Diamond (2007-4806(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Nicole Rivard
The Appellant himself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2005 taxation year is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
As for the appeals for the years 1996 through 2004, they are dismissed because they are invalid in that no notice of objection was served on the Minister of National Revenue in accordance with sections 165 and 169 of the Act.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Docket: 2007-4806(IT)I
BETWEEN:
LINDA DIAMOND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the appeals of Colette Lefebvre (2007-1075(IT)I), Pierrette Fortin Raymond (2007-1181(IT)I), Lisette Simard Côté (2007-1528(IT)I), Michèle Richard Auclair (2007‑1603(IT)I), Denise Robert Godin (2007-1621(IT)I), Paul De Leeuw (2007-2094(IT)I), Micheline Bolduc (2007-2542(IT)I) and Jean‑Pierre Desnoyers (2007-2096(IT)I)
on May 26 and May 27, 2008, at Montréal, Quebec
Before: The Honourable Justice Louise Lamarre Proulx
Appearances:
Agent of the Appellant:
Nicole Rivard
The Appellant herself
Counsel for the Respondent:
Benoit Mandeville
____________________________________________________________________
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2003, 2004 and 2005 taxation years are allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Lamarre Proulx J.
Translation certified true
on this 30th day of September 2008.
Brian McCordick, Translator
Citation: 2008TCC395
Date: 20080627
Dockets: 2007-1075(IT)I, 2007-1181(IT)I
2007‑1528(IT)I, 2007‑1603(IT)I
2007‑1621(IT)I, 2007‑2094(IT)I
2007‑2542(IT)I, 2007‑2096(IT)I,
2007‑4806(IT)I
BETWEEN:
COLETTE LEFEBVRE, PIERRETTE FORTIN RAYMOND,
LISETTE SIMARD CÔTÉ, MICHÈLE RICHARD AUCLAIR,
DENISE ROBERT GODIN, PAUL DE LEEUW,
MICHELINE BOLDUC, JEAN‑PIERRE DESNOYERS,
and LINDA DIAMOND,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] These appeals, instituted primarily by pastoral agents within the Roman Catholic Church, concern the deduction, under paragraph 8(1)(c) of the Income Tax Act, for the residence of members of the clergy or of a religious order, or of regular ministers of a religious denomination.
[2] The relevant parts of the provision read:
8. (1) Deductions allowed − In computing a taxpayer's income for a taxation year from an office or employment, there may be deducted such of the following amounts as are wholly applicable to that source or such part of the following amounts as may reasonably be regarded as applicable thereto
. . .
(c) Clergy residence – where, in the year, the taxpayer
(i) is a member of the clergy or of a religious order or a regular minister of a religious denomination, and
(ii) is
(A) in charge of a diocese, parish or congregation
(B) ministering to a diocese, parish or congregation, or
(C) engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination,
the amount, not exceeding the taxpayer’s remuneration for the year from the office or employment, equal to
. . .
[3] Two tests must be met under this provision: the status test and the function test.
[4] The deduction was disallowed under the status test in all cases. The Respondent's position is that the Appellants are not members of the clergy or of a religious order, and are not regular ministers of a religious denomination. The Appellants admit that they were not members of the clergy and were not members of a religious order. However, they submit that they are regular, albeit non‑ordained, ministers of the Roman Catholic Church.
[5] Seven of the Appellants are under the authority of Bishop Berthelet of Saint‑Jean‑Longueuil, and two are under the authority of Bishop Cazabon of St‑Jérôme. Neither bishop testified at the hearing. However, Bishop Berthelet's sworn declaration concerning the status, role and duties of pastoral agents in his diocese was tendered in evidence.
[6] Ms. Fortin Raymond represented all the Appellants from the Longueuil diocese as their agent. Nicole Rivard represented all the Appellants from the St‑Jérôme diocese as their agent. Nonetheless, each of the Appellants had their own documents and arguments.
[7] According to the sworn declaration of Bishop Berthelet, the starting point for his thinking is Interpretation Bulletin IT-141R. I quote from the declaration:
[TRANSLATION]
The starting point of my thinking was the definition in Interpretation Bulletin IT‑141R of the Canada Customs and Revenue Agency. The definition applies to all churches and religious denominations. It seems to correspond to what is experienced in practice in terms of the duties and mandates that I assign to pastoral agents in our diocese. Thus, my thinking started from this definition, and, assuming that one does not want there to be discrimination between religions or denominations, one can say that, given their role, duties and status, such assistants should be treated like clergy.
[8] In Bishop Berthelet's opinion, pastoral agents should be considered equivalent to the definition of clergy in the Interpretation Bulletin. The point that I believe Bishop Berthelet is making pertains to the essential role of pastoral agents in his diocese. But the phrase "member of the clergy" must be interpreted in accordance with the rules of the church to which the member belongs, and we shall see that, under rules of the Roman Catholic Church, only members who have received the Sacrament of Orders are considered members of the clergy of that Church. Consequently, a lay person must take the "regular minister" route in order to have some chance of success in the instant appeals.
[9] Bishop Berthelet goes on to provide the following description of the role of pastoral agents, their training and their degree of permanence:
[TRANSLATION]
Their actions, and the functions entrusted to them, constitute participation in the spiritual leadership of the Catholic Church here. It is necessary to know that in parishes throughout the diocese, ministry is carried out by teams that work in a collegial manner. In a parish, some functions are assigned to the priest and others are assigned to pastoral agents. Together they provide service and spiritual leadership to the Christian community.
To reduce the entire ecclesial function in a parish to the administration of the sacraments is to fail to recognize the importance of the Word of God for us, the many aspects of the ministry of teaching wherein we prepare people for and contribute to their understanding of faith and practice of the sacraments and accompany them. We can take and examine the important role of pastoral agents in each of the sacraments, whether in preparing people or accompanying them before, during and after the celebration of these sacraments. Thus, these pastoral agents play an essential role that allows the faithful to understand, celebrate and live these sacraments fully. It is in this sense that I say that they participate in spiritual leadership.
In order for this spiritual leadership to be exercised, I entrust to them a pastoral mandate of some permanence. These are not people who offer their services occasionally, but people on whom we count permanently. These agents require a long period of formation; several of them have held these positions, either in the diocese or in the parish, for more than ten years. I would say that we could not function without them. They are part of our pastoral staff, and in this sense, they are equivalent to the definition of a member of the clergy in point 4 of document IT‑141R of the Canada Customs and Revenue Agency.
[10] According to the Bishop, to reduce the ecclesial function to the administration of sacraments is to misunderstand the situation. Pastoral agents do not administer the sacraments, but they prepare the faithful for them and accompany them. They play an essential and ongoing role in the Church's teaching and charity. They serve under a mandate issued by the bishop, who certifies their competency and determines the duration of the mandate and the services to be performed.
[11] Counsel for the Respondent produced a 1997 Vatican document entitled Instruction on Certain Questions Regarding the Collaboration of the Non‑Ordained Faithful in the Sacred Ministry of Priest ("the Instruction"). The document was approved by the Pope on August 13, 1997.
[12] Counsel for the Respondent produced this document with the aim of showing that the Vatican draws a marked distinction between priests, who are ordained sacred ministers, and the lay faithful who perform certain duties in sacred ministers' place and are called extraordinary ministers in such cases.
[13] I would note parenthetically that the mere fact that the Vatican thought it necessary to prepare this document constitutes proof of a relatively recent development in which laypersons have taken on importance within the Church.
[14] I quote certain excerpts from the Instruction:
The necessity and importance of apostolic action on the part of the lay faithful in present and future evangelization must be borne in mind. The Church cannot put aside this task because it is part of her very nature, as the 'People of God', and also because she has need of it in order to realize her own mission of evangelization.
. . . Only in some of these functions, and to a limited degree, may the non-ordained faithful cooperate with their pastors should they be called to do so by lawful Authority and in accordance with the prescribed manner. (Emphasis added.)
. . . "The exercise of such tasks does not make Pastors of the lay faithful, in fact, a person is not a minister simply in performing a task, but through sacramental ordination. Only the Sacrament of Orders gives the ordained minister a particular participation in the office of Christ, the Shepherd and Head in his Eternal Priesthood. The task exercised in virtue of supply takes its legitimacy formally and immediately from the official deputation given by Pastors, as well as from its concrete exercise under the guidance of ecclesiastical authority". (Emphasis added.)
. . . The non-ordained faithful may be generically designated "extraordinary ministers" when deputed by competent authority to discharge, solely by way of supply, those offices mentioned in Canon 230, § 3(56) and in Canons 943 and 1112. Naturally, the concrete term may be applied to those to whom functions are canonically entrusted e.g. catechists, acolytes, lectors etc. (Emphasis added.)
It is unlawful for the non-ordained faithful to assume titles such as "pastor", "chaplain", "coordinator", "moderator" or other such similar titles which can confuse their role and that of the Pastor, who is always a Bishop or Priest.
. . .
Necessary Selection and Adequate Formation
Should it become necessary to provide for "supplementary" assistance in any of the cases mentioned above, the competent Authority is bound to select lay faithful of sound doctrine and exemplary moral life. Catholics who do not live worthy lives or who do not enjoy good reputations or whose family situations do not conform to the teaching of the Church may not be admitted to the exercise of such functions. In addition, those chosen should possess that level of formation necessary for the discharge of the responsibilities entrusted to them.
In accordance with the norms of particular law, they should perfect their knowledge particularly by attending, in so far as possible, those formation courses organized for them by the competent ecclesiastical Authority in the particular Churches, (in environments other than that of the Seminary, as this is reserved solely for those preparing for the priesthood). Great care must be exercised so that these courses conform absolutely to the teaching of the ecclesiastical magisterium and they must be imbued with a true spirituality. [Footnotes omitted.]
[15] In my view, the Instruction shows that, despite a fervent wish that religious vocations become numerous again and constitute the norm, the Vatican, out of concern for reality and for the maintenance of order in the Church, has chosen to create a legal structure governing the laity in pastoral service. In the Instruction, the Vatican recognizes the necessity and importance of apostolic action on the part of the lay faithful. However, the Vatican wants a clear distinction to be maintained between ordained ministers and the laity. Lay persons may be called extraordinary ministers when called upon by competent authority to carry out duties that would normally be performed by clergy if there were enough clergy to perform them. The lawful authority must choose faithful of sound doctrine and exemplary conduct. In addition, such lay persons must have adequate formation (training). Suppletive duties derive their legitimacy formally and directly from an official delegation effected by Pastors, and, when performing such duties, a lay person is subject to ecclesiastical authority.
[16] For an analysis of the Instruction, the Appellants' agent referred to an article written this year by Anne Asselin, JCD, of the Faculty of Canon Law of St. Paul University: "Les Laïcs au service de leur Église, Le point actuel du droit." [Lay persons serving their Church: The current law]. Here are some excerpts from the chapter entitled "L'instruction interdicastérielle de 1997", at pages 170, 172, 173 and 184:
[TRANSLATION]
The Instruction suggests that the solution to the shortage of priests lies in the encouragement of a "zealous and well-organised pastoral promotion of vocations". . . . "Any other solution to problems deriving from a shortage of sacred ministers can only lead to precarious consequences." No one can argue with a campaign for vocations; only a priest can replace a priest. But we can ask whether all our hope for the future of the Church should be placed there. A well-managed lay ministry may turn out to be a good thing for the Church.
This doctrinal section of the document concludes with a reminder that this collaboration of lay people in the ministry of priests is of extraordinary character and that its application must "avoid . . . the abuse of multiplying 'exceptional' cases over and above those so designated and regulated."
. . .
. . . The Assembly of Quebec Catholic Bishops also studied the question of traditional vocabulary and current experience of ministry. The bishops suggested adopting a "certain number of agreements to avoid sterile struggles about semantics and even more tensions between ministers that can only harm the community." It seems clear that, in practice, the restrictions on terminology imposed by the Instruction did not have the desired impact, at least not yet, ten years after its promulgation.
. . .
The Instruction does not seem to take into account the fact that the situations which it calls exceptional are in reality frequent, if not habitual, in many dioceses:
My real difficulty with this restrictive decree is that it deals with extraordinary ministers of Communion, and lay ministers in general, at best as helpers who are reluctantly authorized for some exceptional situations for which, unfortunately, no other solution can be found. My real concern is the refusal to recognize the actual pastoral situations in many countries around the world. (R. Stecher, Bishop of Innsbruck, Austria.)
[17] The author understands that the Vatican wants vocations to be more numerous. She says that she cannot argue with this. However, she wonders whether all hope for the future should be placed there. In her view, lay ministry may turn out to be good for the Church. The author notes that the situations that the Instruction purports to consider exceptional are actually commonplace.
[18] Chapter 3.3 of the article is entitled "Les agents de pastorale". Here are some excerpts from pages 210-11:
[TRANSLATION]
. . . What ought to be an exception has, in many cases, become standard practice or habit. This situation can be found everywhere in Canada, Europe and the United States.
Whereas lay people were once said to be involved in "an apostolate in the world," they now exercise "pastoral ministries." The exercise of such ministries is founded in baptism and in a juridical act: a mandate from the competent authority. The activities undertaken by a pastoral agent in the context of Canon 517, §2 include, among other things, preaching, catechesis, presiding over prayer, spiritual direction, administration, assistance to those who are non-practising and to non-believers, and the responsibility to assure that sacramental celebrations are made available to the faithful. . . .
In his discussion of such lay ministers, Roch Pagé describes them as "full-time pastoral agents," preferring this term to "permanent pastoral agents" because a mandate is never for life. It is for a full-time office and for a certain length of time. Permanent ministries — ministries for life — are reserved for ordained, instituted ministries. Even if these ministers cannot exercise their ministry full time, they are still permanent. See Pagé, "Full-Time Pastoral Ministers," pp. 167-168.
Let us say then that in participating in the exercise of a pastoral office, clerics and laity are linked together by the stability that their mandate gives them rather than by the permanence that constitutes the basis of their mandate, since this can differ from one person to another (Pagé, p. 168).
. . . The inclusion of lay people in the ministry of the church and in offices of ecclesiastical responsibility has perhaps happened because of the lack of priests, but it is here to stay. This is not a temporary or provisional measure that will disappear as soon as there are enough ordained ministers.
[19] What I take from this analysis of the Instruction is that the distinction between ordained ministers and lay persons who act in their place must be respected. However, what was supposed to be the exception has become the norm in Canada, Europe and the United States. Lay persons carry out their pastoral ministries on a full-time basis for a limited term, though that term can encompass a great deal of a pastoral agent's active life. The exercise of such ministries is founded in baptism and in a mandate from lawful authority, which is a juridical act. These pastoral ministries include preaching, catechesis, presiding over prayer, spiritual direction, and accompanying and comforting the sick and grieving.
[20] The agent for the Appellants of the Longueuil diocese also referred to an article by Alphonse Borras, of Université catholique de Louvain, entitled "À propos des ministères, L'articulation des ministères : de la théologie à la lettre de mission" [Articulating the ministries: from the theology to the mission letter] (2007) 179 Esprit et Vie 1. I shall quote excerpts from pages 2, 3, 6 and 7:
[TRANSLATION]
If I had to characterize the major change in these last decades in terms of theology, and, above all, in the practice of ministries, I would readily say that, by laboriously but progressively overcoming the split between clerics and the laity, we have moved from a ministerial monopoly of priests to the implementation of a diversity of ministries. As I see it, this change seems to have been accepted, albeit to different degrees, in the local Churches of Western Europe and in North America. . . .
. . .
Indeed, one notes the development of a whole range of tasks assumed by lay people who have the requisite qualities and mandate from the Church. One has also seen that their initial formation continues to deepen in response to the needs of the mission. We should also be happy about this change from a role of helping priests to a genuine partnership with them. What is fortunate is that in general, there is a tendency toward teamwork. . . .
. . .
The ministries entrusted to lay people are "non-ordained" ministries.
. . .
For the lay faithful whom the Church calls upon to exercise a ministry — in France, they are generically called "lay people involved in an ecclesial mission" — the sacramental investiture of ordination does not exist. Baptism, and the charisms that each of the lay faithful possesses, constitute the theological foundation that justifies the Church in calling them according to the needs of its mission. Their authorization does not come from the Sacrament of Orders, but from their suitability and from the Church's call (see Canon 228, §1). . . .
. . .
Theologically speaking, it is by virtue of their baptism and their own particular charisms, and with the Church's discernment and call in whatever form, that these lay faithful assume ministries that play an indispensible role in building up the Church and contributing to its mission in this place. They participate "more closely" in pastoral responsibility. Their responsibility or function is either general or sectoral, depending on whether they participate in the exercise of pastoral responsibility in close association with the leadership of a community, or carry out their work in a specific sector determined by the Church's pastoral action such as catechesis, visiting the sick, preparation for sacraments, hospitality, solidarity with the poor, charitable or humanitarian endeavours, etc. This participation will take different forms, according to the nature and needs of the ecclesial community in question.
[21] The author discusses a major change over the past few decades in terms of the practice of ministries. He notes that lay persons have taken on ecclesial duties and have deepened their formation. The lay faithful whom the Church calls upon to minister do not derive their capacity from sacramental investiture (i.e. ordination) but from their suitability, and from the Church's call. The pastoral mandate plays the role of an investiture.
[22] The appellants tendered Un document de référence, adopté par les évêques du Québec lors de l'Assemblée plénière tenue à Trois‑Rivières, le 12 mars 2004 concernant le mandat pastoral décerné aux agentes et agents de pastorale laïques. [Reference document concerning the pastoral mandates of lay pastoral agents, and adopted by the bishops of Quebec at their plenary assembly in Trois-Rivières on March 12, 2004.] I shall quote at length from the document:
[TRANSLATION]
The function of lay pastoral agents has been developing in Quebec dioceses for several years now.
It would seem helpful at this point to clarify this topic so we can develop some consistent language about this subject, and, where useful, establish some similarity in the ways that we function.
. . .
Lay pastoral agents
The lay faithful are called, each according to his or her situation, to participate in the mission that God gave to the Church to enable it to accomplish that mission in the world (Canon 204). The term pastoral agent designates those among them who have received a specific mission from the bishop and who collaborate in the exercise of the pastoral responsibility for the parish by carrying out tasks of leadership, animation and coordination.
It is advisable to reserve the expression "pastoral agent" for those lay faithful, and to designate ordained ministers specifically as deacons, priests and bishops, reserving the term "pastor" for the latter two categories.
The pastoral mandate
The pastoral mandate is the act by which the bishop, recognizing the suitability, ability and competence of a member of the lay faithful, chooses that person to collaborate in the exercise of pastoral responsibility, and gives him, or her, a mission.
A person is recognized as suitable when they accept their baptismal faith and testify to it by the coherence of their life. They have significant experience of our common ecclesial life, know how to make the connection between faith and life, and are in complete solidarity with the thought and the mission of the Roman Catholic Church through the diocesan bishop, notably in matters of doctrine. Moreover, their state of life must conform to Church teaching, particularly in matters of marriage.
The diocesan bishop determines the necessary formation and requisite capacities to exercise this mission.
The bishop grants this mandate in writing for a determinate period. The text refers explicitly to the criteria of suitability and the required abilities, and to how the mandate will be terminated or revoked. The procedure for non-renewal or revocation of the pastoral mandate is defined by diocesan decree. A pastoral mandate does not necessarily require the bishop to guarantee employment. The signature of the mandated person mandated indicates the person's acceptance.
The employment contract
The pastoral agent signs an employment contract with his or her employer. The contract sets out the terms of employment. It must state that the possession of a pastoral mandate is required in order for the contract to be valid, and that the revocation or non-renewal of the mandate automatically results in the termination of the employment contract.
The pastoral agent's employer in a parish is the fabrique [administrative committee]. The employer of a diocesan pastoral agent is the Corporation of the Roman Catholic Bishop. The pastoral agent's employer in a civil setting is the civil institution itself.
[23] The document specifies that pastoral agents are men or women who, under a special mission from the bishop, collaborate in the exercise of pastoral responsibility by carrying out tasks of direction, animation or coordination. The pastoral mandate is the document in which the bishop, acknowledging the suitability, abilities and skills of a member of the lay faithful, chooses that lay person to exercise a pastoral ministry.
[24] At page 18 of the Lettre pastorale aux prêtres et aux diacres aux agentes et agents de pastorale et aux personnes collaboratrices en paroisse [Pastoral letter to the priests, deacons, pastoral agents and parish workers] (Official Communication No. 7 of the Saint‑Jean de Longueuil Church, April 15, 2001), a paragraph entitled [TRANSLATION] "Ordinary and extraordinary ministers" reads:
[TRANSLATION]
Ordinary ministers are those who carry out their duties pursuant to their ordination and to the jurisdiction that the bishop has conferred on them. Extraordinary ministers are those who receive a specific personal mandate authorizing them to act in particular circumstances because there are no ordinary ministers or because impediments prevent the ordinary ministers from acting. In our diocese, a certain number of people can act as extraordinary ministers of baptism and preaching. The two documents to which we are referring specify their ministry and how it is to be exercised.
[25] The agent also referred to Post-Synodal Exhortation Christifideles Laici of His Holiness Pope John Paul II on the Vocation and the Mission of the Lay Faithful in the Church and in the World (December 30, 1988). The following is an excerpt from it:
When necessity and expediency in the Church require it, the Pastors, according to established norms from universal law, can entrust to the lay faithful certain offices and roles that are connected to their pastoral ministry but do not require the character of Orders. The Code of Canon Law states: "When the necessity of the Church warrants it and when ministers are lacking, lay persons, even if they are not lectors or acolytes, can also supply for certain of their offices, namely, to exercise the ministry of the word, to preside over liturgical prayers, to confer Baptism, and to distribute Holy Communion in accord with the prescriptions of the law." However, the exercise of such tasks does not make Pastors of the lay faithful: in fact, a person is not a minister simply in performing a task, but through sacramental ordination. Only the Sacrament of Orders gives the ordained minister a particular participation in the office of Christ, the Shepherd and Head, and in his Eternal Priesthood. The task exercised in virtue of supply takes its legitimacy formally and immediately from the official deputation given by the Pastors, as well as from its concrete exercise under the guidance of ecclesiastical authority. [Footnotes omitted.]
[Emphasis added.]
[26] This excerpt reconfirms that lay persons may carry out certain duties of ordained ministers when expediency in the Church requires it.
[27] In his book of authorities, Counsel for the Respondent included the House of Commons debates from when the provision in question was enacted. I am referring to the debates on November 10, 1949, during which Mr. Sinclair, the Minister of Finance, made the following statement about the reason for the deduction in question:
The present exemption can be justified in that a minister's home is, if I may use the expression, more or less his place of doing business, the place where during week days he ministers to his congregation and performs other functions in connection with his office.
[28] In this regard, most of the Appellants spontaneously mentioned, without specific prompting, that their residences are frequently used for pastoral meetings.
[29] The agent of the Appellants from the St-Jérôme diocese outlined the dwindling numbers of ordained ministers in the diocese: in 1985, there were 124 priests, and in 2008, there are 46. Twenty-five of those priests are permanently on duty,