Lichtman v. The Queen

Lichtman v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2017-12-18
Neutral citation
2017 TCC 252
File numbers
2016-323(IT)I, 2016-324(IT)I, 2016-326(IT)I
Judges and Taxing Officers
Diane Campbell
Subjects
Income Tax Act
Decision Content
Docket: 2016-323(IT)I
BETWEEN:
RABBI ADAM LICHTMAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on common evidence with the appeals of Rabbi Lawrence Goldman, 2016-324(IT)I and Rabbi Shlomo Estrin, 2016-326(IT)I on February 7, 2017, May 8, 9, 10, 11, 2017 and June 14, 15, 16, 2017, at Vancouver, British Columbia
Before: The Honourable Justice Diane Campbell
Appearances:
Counsel for the Appellant:
Edwin G. Kroft, Q.C.
Deborah Toaze
Eric Brown
Counsel for the Respondent:
Robert Danay
Elizabeth MacDonald
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2012 and 2013 taxation years are dismissed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of December 2017.
“Diane Campbell”
Campbell J.
Docket: 2016-324(IT)I
BETWEEN:
RABBI LAWRENCE GOLDMAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on common evidence with the appeals of Rabbi Adam Lichtman, 2016-323(IT)I and Rabbi Shlomo Estrin, 2016-326(IT)I on February 7, 2017, May 8, 9, 10, 11, 2017 and June 14, 15, 16, 2017, at Vancouver, British Columbia
Before: The Honourable Justice Diane Campbell
Appearances:
Counsel for the Appellant:
Edwin G. Kroft, Q.C.
Deborah Toaze
Eric Brown
Counsel for the Respondent:
Robert Danay
Elizabeth MacDonald
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2011, 2012 and 2013 taxation years are dismissed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of December 2017.
“Diane Campbell”
Campbell J.
Docket: 2016-326(IT)I
BETWEEN:
RABBI SHLOMO ESTRIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on common evidence with the appeals of Rabbi Adam Lichtman, 2016-323(IT)I and Rabbi Lawrence Goldman, 2016-324(IT)I on February 7, 2017, May 8, 9, 10, 11, 2017 and June 14, 15, 16, 2017, at Vancouver, British Columbia
Before: The Honourable Justice Diane Campbell
Appearances:
Counsel for the Appellant:
Edwin G. Kroft, Q.C.
Deborah Toaze
Eric Brown
Counsel for the Respondent:
Robert Danay
Elizabeth MacDonald
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 2011 and 2012 taxation years are dismissed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 18th day of December 2017.
“Diane Campbell”
Campbell J.
TABLE OF CONTENTS
I. Introduction: 1
II. Appellant’s Position: 3
III. Respondent’s Position: 3
IV. The Facts: 4
A. Orthodox Judaism: 5
B. The Vancouver Hebrew Academy (“VHA”) and the Evidence of Rabbi Dan Pacht: 6
C. The Appellants’ Role with the VHA and in the Vancouver Jewish Community: 9
D. Rabbi Lawrence Goldman: 10
E. Rabbi Shlomo Estrin: 13
F. Rabbi Adam Lichtman: 14
G. Congregation Schara Tzedeck and the Role of the Synagogue Rabbi: 15
V. Analysis of the Expert Reports: 17
A. Admissibility of the Rabbinical Court Report: 17
a) Objection Based on “Formal Ruling” of a Religious Court 18
b) Objection Based on the Independence of Rabbi Feigelstock and Rabbi Rosenblatt 19
B. Admissibility of Rabbi Eleff’s Expert Report: 26
a) Properly Qualified Expert 26
b) Relevance. 30
c) Necessity in Assisting the Trier of Fact 32
d) Exclusionary Rules. 33
VI. The Clergy Residence Deduction: 36
A. Were the Appellants “Ministering” to the Students Attending VHA?. 36
(i) Case law.. 36
(ii) Expert Evidence on Orthodox Judaism, Torah Education and the Role of Rabbis 42
a) Weight of the Rabbinical Court Report 42
b) No Consensus on the Spirituality of Torah Education. 43
c) The Primary Role of a Rabbi 46
d) My Conclusions Respecting the Expert Evidence on Orthodox Judaism and “Ministering”. 50
B. Do the Students Attending VHA Constitute a “Congregation” within the Meaning of Paragraph 8(1)(c)(ii)?. 51
(i) Case Law.. 51
(ii) Statutory Interpretation. 54
a) Textual and Ordinary Meaning. 54
b) Contextual Meaning. 55
c) Purpose and Scheme of the Act 61
C. Did the Appellants also Minister to a Congregation of the Wider Vancouver Jewish Community?. 64
VII. Conclusion: 64
Citation: 2017 TCC 252
Date: 20171218
Docket: 2016-323(IT)I
BETWEEN:
RABBI ADAM LICHTMAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2016-324(IT)I
AND BETWEEN:
RABBI LAWRENCE GOLDMAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent;
Docket: 2016-326(IT)I
AND BETWEEN:
RABBI SHLOMO ESTRIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Campbell J.
I. Introduction: [1] These appeals deal with the interpretation and application of subparagraph 8(1)(c)(ii) of the Income Tax Act (the “Act”) and, more specifically, clause 8(1)(c)(ii)(B). I must determine whether the Appellants’ teaching duties and functions at the Vancouver Hebrew Academy (the “VHA”) constituted “ministering to a…congregation”, which would then permit them to claim the “clergy residence deduction” (the “Deduction”) pursuant to this provision.
[2] Rabbi Adam Lichtman appeals notices of reassessment and assessment issued by the Minister of National Revenue (the “Minister”) in respect to his 2012 and 2013 taxation years, respectively. Rabbi Lawrence Goldman appeals notices of reassessment and assessment in respect to his 2011, 2012 and 2013 taxation years, respectively. Rabbi Shlomo Estrin appeals notices of reassessment in respect to his 2011 and 2012 taxation years.
[3] The Appellants are ordained rabbis in the Vancouver Orthodox Jewish community. During the taxation years under appeal, the Appellants taught Judaic studies curriculum to children attending the VHA, the only Orthodox Jewish elementary day school in the Vancouver Jewish community. In computing their net income during these taxation years, each of the Appellants claimed the Deduction which the Minister denied on the basis that the Appellants were not in charge of or ministering to a congregation pursuant to subparagraph 8(1)(c)(ii) of the Act.
[4] Paragraph 8(1)(c) sets out a two-fold test, the status and function test, both of which must be met in order to qualify for this Deduction. The Appellants satisfy the first part, the status test, in that they are “members of a clergy or of a religious order or a regular denomination under subparagraph 8(1)(c)(i) of the Act. It is the second part, the function test, that is in dispute under subparagraph 8(1)(c)(ii) of the Act. The sole issue before me is whether the Appellants’ activities and functions at the VHA and as well in the greater Vancouver Orthodox Jewish community can be considered as “ministering to a…congregation”, pursuant to clause 8(1)(c)(ii)(B). One of the aspects in resolving this issue involves a determination of the admissibility and weight to be accorded to two expert reports, one from the Rabbinical Court tendered on behalf of the Appellants and a second from Rabbi William (Zev) Eleff, tendered on behalf of the Respondent.
[5] These appeals, being heard on common evidence, commenced before me in February, 2017, pursuant to the Informal Procedure. Almost immediately after the examination-in-chief began in respect to the Appellants’ first witness, Rabbi Dan Pacht, Respondent counsel objected to a line of questions being pursued by counsel for the Appellants in respect to the texts and principles of Orthodox Judaism. The basis of the objection was that the questions delved into an area that was within the realm of expert evidence. I agreed with the Respondent’s objection and because the proceeding was brought under the Tax Court of Canada Rules (Informal Procedure), I adjourned the appeals and directed the parties to obtain and submit expert reports. When the hearing resumed in May, 2017, the Appellants tendered an expert report, written by Rabbi Andrew Rosenblatt and co-signed by Rabbi Avraham Feigelstock. This report was provided “…on behalf of the Beit Din or Rabbinical Court of the Orthodox Rabbinical Council of British Columbia (the “Rabbinical Court”). [Rabbinical Court Report, page 3]. The Respondent tendered an expert report written by Rabbi William Eleff. Without providing advance notice to the opposing party, both Appellant and Respondent counsel proceeded to challenge the admissibility of each other’s reports. Voir dires were held to determine the admissibility of both reports. I used my discretion under the Tax Court of Canada Rules (Informal Procedure) and adopted the suggestion of counsel for both the Appellants and the Respondent in reserving my decisions in the voir dires and issuing those decisions concurrently with my written reasons in these appeals.
[6] After reviewing the evidence presented in the voir dires, I have concluded that both reports will be admissible subject to the qualifications that I have imposed. The reports which were previously marked at the hearing for identification only as Exhibits A-2 and R-14, are now accepted and form part of the record as full Exhibits.
II. Appellant’s Position: [7] The Appellants submit that they were entitled to claim the clergy residence deduction during the relevant periods because they provided Jewish religious instruction and guidance to elementary Orthodox Jewish children attending VHA, who were assembled primarily for this instruction. In leading these children in Jewish worship and instructing them in Jewish principles and values, the Appellants were ministering to a congregation. The Appellants relied on a number of cases decided by the former Chief Justice Bowman to support their argument (Appellants’ Opening Statement, pages 7-8).
III. Respondent’s Position: [8] The Respondent submits that if I accept the Appellants’ argument on the interpretation of subparagraph 8(1)(c)(ii) of the Act, it would be inconsistent with the plain meaning of the provision, its context in the overall statutory scheme, Parliament’s intention to deliberately exclude full-time teaching activities from the ambit of this provision and that it would lead to the absurd result where, unlike other Judeo-Christian denominations, any religious activities undertaken by Orthodox Rabbis would necessarily fall within the meaning of ministering to a congregation (Respondent’s Written Submissions, paragraph 4).
IV. The Facts: [9] I heard evidence from seven witnesses, each of whom is an Orthodox Jewish Rabbi:
• the three Appellants in these appeals;
• Rabbi Dan Pacht, the head of the VHA;
• Rabbi Avraham Feigelstock, currently the head of the Beit Din, a Hebrew term for a Rabbinical Court translated as “House of Judgment” (Exhibit A‑2, page 3), the authority in Jewish law for the Orthodox Rabbinical Council of British Columbia;
• Rabbi Andrew Rosenblatt, a member of the Orthodox Rabbinical Court of British Columbia since 2003, senior Rabbi with Schara Tzedeck, the largest Orthodox Jewish synagogue in Vancouver and a member of the executive of the Rabbinical Council of America and chair of its Ethics Development Committee. He was introduced by the Appellants as both a proposed expert witness in the laws and practices of Orthodox Judaism and as a fact witness in respect of his role as the Rabbi at the Schara Tzedeck;
• Rabbi William (Zev) Eleff, currently the Chief Academic Officer of the Hebrew Theological College, the major Orthodox college and rabbinical seminary in the North American Midwest and a member of the Orthodox Rabbinical Council of America, the largest Orthodox rabbinical organization in the world. He was the Respondent’s only witness and was called as a proposed expert on religion in North America with a particular focus on the history, religious laws and practices of Orthodox Judaism and the Rabbinate.
I will discuss the evidence presented by Rabbi Feigelstock, Rabbi Rosenblatt and Rabbi Eleff in my analysis of the expert reports.
A. Orthodox Judaism: [10] Orthodox Judaism is one of three modern movements or denominations of Judaism in North America. Because of the central role that both tradition and the customs and practices play in Orthodox Judaism, it is important to impart these principles to children beginning at an early age. These customs and beliefs have their origins in two sacred texts, the Torah and Talmud. The Torah sets out the 613 commandments that affect every aspect of the life of an Orthodox Jew. These include observance of kosher dietary laws, reciting of prayers, studies of the Torah, ritual circumcisions and bearing children.
[11] Orthodox Jews believe that the Torah was directly passed from God to Moses at Mount Sinai. Orthodox Judaism is founded in the belief that this group was exiled to Babylonia and returned to Israel with Ezra and Nehemiah. Orthodox Judaism preserved the subsequent foundational texts of Jewish law in the Mishnah and in the Babylonian Talmud. After generations of compiled commentary on the earlier Mishnah, Rabbis eventually adopted the Babylonian Talmud as their most authoritative text (Appellants’ Argument and Submissions, page 23).
[12] The Talmud is a codification of the oral law, edited to include subsequent clarifications to the laws contained in the Torah. Those laws have been further added to and elaborated upon by Rabbis who have produced further codes and texts in this regard. In addition to Jewish law, the Talmud also contains lore (aggadah), although there does not appear to be any rabbinic consensus as to how authoritative the aspects of the Talmud relating to lore may be. Talmudic lore does provide that the Biblical commandment to study the Torah is greater than all of the other 613 commandments combined and the Rabbinical Court Report relied on this to assert the fundamental importance to Orthodox Judaism of religious education. However, on cross-examination, Rabbi Rosenblatt admitted that this statement would be a common “statement of hyperbole” that is used to describe and emphasize the importance of a variety of commandments (Transcript, Vol. 3, pages 314-317 and Respondent’s Written Submissions, page 14). The Rabbinical Court Report asserts that the obligation to study Torah is a religious act and that the recital of blessings is required before studying Torah. Rabbi Rosenblatt also testified that Orthodox Jews are required to recite more than 100 blessings daily, some of which occur during prayer services while others are recited before or after routine activities such as upon wakening, upon leaving the bathroom, eating bread or washing one’s hands. Orthodox Jews are required to participate in three daily prayer services during weekdays, four prayer services on the Sabbath and on holidays and on the Yom Kippur holiday five prayer services.
B. The Vancouver Hebrew Academy (“VHA”) and the Evidence of Rabbi Dan Pacht: [13] Rabbi Pacht holds undergraduate and graduate degrees in Rabbinic and Talmudic studies from the New York Talmudical Institute, as well as a Master of Science in Education Administration from New York State University. He received his ordination in Tennessee. Rabbi Pacht has been at the VHA since August, 2004 and was head of the school during the relevant taxation years. He hired both Rabbi Goldman and Rabbi Lichtman.
[14] The Orthodox Jewish community in Vancouver is a relatively small one, comprised of approximately 600 families. About 20 to 30 Orthodox Jewish rabbis, including the three Appellants, serve this community. There are five Jewish day schools, two elementary schools and three high schools. VHA is the only Orthodox Jewish elementary day school in Vancouver and parents pay in order for their children to attend. During the relevant taxation years, the parents paid yearly tuition costs of $10,000 per child.
[15] The VHA was established and is operated by the Vancouver Hebrew Academy Society (the “VHA Society”). The constitution of the VHA Society states that its purposes were, among other things:
…
a. to establish and operate one or more schools for Jewish children, consisting of both a full general studies curriculum and full Jewish studies curriculum and whose policies will be in keeping with the principles of Orthodox Judaism;
b. to carry on activities dedicated to the advancement of Orthodox Jewish education;
c. to develop a strong positive Jewish identity, a love for Judaism and a deep sense of commitment to and involvement with the nation of Israel and “K’lal Yisrael” – the worldwide community of Israel;
d. to teach children in those traits of character, morality and ethics that are reflected in the teachings of the Jewish faith and that are reflective of traditional Jewish life;
…
(Exhibit A-1, Tab 1).
[16] The VHA operates an accredited elementary school that offers a dual curriculum consisting of Judaic studies and general studies that conform with the requirements of the British Columbia Ministry of Education. Students attend the VHA from kindergarten to grade seven. During the taxation years under appeal, a total of 115 to 130 students were enrolled at the VHA. Of the families of the students attending the VHA, 35 percent are affiliated with the synagogue, Schara Tzedeck. The remaining families are affiliated with synagogues of Orthodox or other Jewish religious denominations.
[17] Rabbi Pacht testified that VHA fulfills the purposes of the VHA Society by conveying to the Orthodox Jewish children the values, ethics and principles embedded in the Torah and specifically the 613 commandments (Mitzvots), which govern almost every aspect of life for an Orthodox Jew. “Torah” may have either a broad or narrow meaning but in this context it is used in its broad sense to refer to the whole body of religious law contained in the written law (the Five Books of the Bible) and the oral law (Talmud) together with the subsequent explanations and commentaries (Rabbinical Court Report, Exhibit A-2, page 4). The VHA’s mission for its Judaic studies curriculum is specifically to provide Torah education which “inspires the pursuit of academic excellence and provides children with the foundation skills to fortify their Jewish identity and ignite in them a passion for a lifetime of exploring their Jewish heritage and the world.” (Exhibit A-1, Judaic Studies Curriculum, Tab 5, page 110).
[18] Students attending the VHA spend more than 50 percent of their day studying Judaism, starting with the morning prayers in which all students participate. Afternoon prayers are introduced to the students in the intermediate grades. These prayers are led by Judaic studies teachers, such as the Appellants, with the students being taught not only how to recite the prayers but also their meaning. Although prayer services are held in a regular room, students orient themselves in a manner facing east that is similar to prayers being recited in a synagogue. In the higher grades, students are given the opportunity to lead the prayers, “…the same way that there might be a leader in the congregation…much like they would see in synagogue.” (Transcript, Vol. 3, page 423, lines 16-20, Testimony of Rabbi Pacht). During the weekdays, over 90 percent of the students participate in religious worship only at the VHA, as opposed to a synagogue, but this is meant to prepare the students for synagogue prayer.
[19] The Judaic studies curriculum is composed of courses in Chumash (Bible), Navi (Prophets), Tefillah (Prayer), Halachah (Jewish law), Gemara (Talmud), Jewish history and general Judaic knowledge. The Hebrew language is also taught to the students to enable them to continue their life-long study of Torah.
[20] Rabbi Pacht testified in respect to those courses that were offered to the students at VHA. Chumash introduces students to the sacred texts of the Bible, the Five Books of Moses. Navi is a course where students study the books of the prophets – Joshua, Judges, the Books of Samuel and the Book of Kings. The Tefillah encompasses a course on how prayers are properly recited. Halachah introduces students to Jewish law, with emphasis on the laws and practices relating to Shabbat and religious holidays. Gemara exposes students to the Talmud, the oral tradition of the law that is viewed by Orthodox Jews as having been passed directly from God to Moses and subsequently codified. The study of Jewish law exposes students to the entire history of the Jewish people from ancient times through to modern Jewish history, including the formation of the state of Israel. The general knowledge course covered particular building blocks in Jewish knowledge including the commandments, categories of kosher animals, birds and fish named in the books of the written law, such as the Five Books of the Bible.
[21] Students at VHA also follow other customs and practices of Orthodox Judaism, as they are taught how to live their lives in accordance with the 613 commandments in the Torah. For example, only kosher food is permitted in the school. In addition, students are required to bring bread for their lunch so that they could participate in the practice of “benching”, a term used for reciting grace after eating a bread-based meal, one of the 613 commandments.
[22] During the taxation years, the VHA employed female teachers to teach some of the Judaic studies curriculum. The teaching duties contained in the employment contracts, that each of the Appellants had with the VHA, were the same duties as those stipulated in the contracts of the female teachers who are not ordained rabbis.
[23] VHA also offered special classes to students, such as an advanced course in Talmud studies, over the lunch hour and after school.
[24] Although three Orthodox synagogues in Vancouver offer religious instruction to children for a few hours weekly, Rabbi Pacht testified that the VHA curriculum in Judaic studies was a more detailed, intense and experiential program (Transcript, Vol. 3, pages 418-419).
[25] Rabbi Pacht testified that he encouraged VHA rabbis to be actively engaged in the broader Jewish community and in the synagogues, even though this requirement was not part of their duties under their employment contracts with VHA (Transcript, Vol. 3, pages 426-428).
C. The Appellants’ Role with the VHA and in the Vancouver Jewish Community: [26] During the relevant taxations years, the Appellants were employed as teachers of Judaic studies at the VHA pursuant to employment contracts (the “Teaching Contracts”) with the VHA Society. The Appellants did not teach any of the courses in the general studies curriculum. The Teaching Contracts define each of the Appellants as the “employee” or the “teacher” and require that the teacher’s performance of the duties at VHA under these contracts are to “take priority over any other professional commitments made to other parties” (Exhibit A-1, Tab 2, Clause 3.2). Each contract provides further that the teacher is responsible for all of the duties that are outlined in Schedule “A” of the contract.
[27] Schedule “A” of the Teaching Contracts is titled “Teaching Staff Job Description”. This schedule sets out both general and specific duties that are required of the teacher.
[28] The general duties that are outlined in Schedule “A” are those that would be typically required of any teacher in a regular school setting and include: demonstrating professional conduct, participating in supervisory duties, responsibilities respecting special programs, attending staff meetings, parent‑teacher interviews, school events and preparation and submission of course outlines with particular content in September of each school year.
[29] The specific duties of each teacher set out the particular classes that each Appellant would be teaching in a given school year. It also specified the working hours for full-time and part-time teachers. Each Appellant, being full-time teachers or employees, was expected to be present at the school between the hours of 8:15 a.m. and 4:10 p.m..
[30] The Teaching Contracts also stipulated that a teacher shall be responsible for teaching components of the British Columbia curriculum if these duties were assigned to that teacher. While the Appellants did not teach any general studies curriculum during the relevant taxation years and Rabbi Lichtman testified he was not certified to teach any general studies courses, the school reserved the right to assign the Appellants to teach such courses pursuant to that clause in their contracts. All or substantially all of the Appellants’ income during the relevant years originated from their employment as teachers with the VHA.
[31] In addition to teaching at the VHA, all of the Appellants were actively involved in the greater Vancouver Jewish community through their involvement at the local synagogues, providing spiritual guidance and counselling to community members and hosting families in their homes on the Sabbath and for holiday meals.
D. Rabbi Lawrence Goldman: [32] Rabbi Goldman was ordained in Israel in 2004. During this period, he also studied with Ner Le’Elef, an organization that trained rabbis in several outreach programs designed to assist Jews of the Orthodox Jewish faith living in smaller Jewish communities around the world. Individuals enrolled at Ner Le’Elef studied one of three streams of curriculum: those who wished to become a pulpit/synagogue rabbi, those who wanted to become an outreach professional and those who wanted to be involved in Jewish youth education. Rabbi Goldman received training in the Jewish youth education stream.
[33] After his ordination, Rabbi Goldman was recruited in 2004 to the VHA by Rabbi Pacht. During the period in issue, he was involved with boys and girls in Grades 4 to 7 and taught the Talmud (Jewish oral law), Chumash (the Bible), Navi (the prophets), Jewish law (Halachah), Jewish history and Mussar (character development). He also regularly led the male students in Grades 5 to 7 in morning prayers, using the same prayer book and materials as he would use in an Orthodox synagogue. The words of the prayers were the same at VHA as he used when acting as a rabbi at the synagogue. When praying with his students he used the same words he used when leading a group of ten adult men but admitted that there would be more content within the latter setting. On cross‑examination, he also admitted that he was required to teach students how to pray as part of the Tefillah curriculum.
[34] Rabbi Goldman’s teaching methodology or philosophy toward his students was to “…impart skills to them, the skills that could lead them to becoming life‑learners and be able to open up texts later in life.” (Transcript, page 475, lines 8-10) and even more importantly, according to his testimony, he “…tried to give them an excitement for Judaism. …an understanding of how important it is, how vital it is, how connected we are to our heritage.” (Transcript, page 475, lines 12-15). The teaching of Jewish ethics and values based on the Torah was at the centre of all subjects that were taught.
[35] The VHA curriculum contained specific exit expectations respecting students. Rabbi Goldman was required to mark his students for the purposes of report cards, the same requirement as in the general studies courses, although he factored in effort as well. He assessed students through both written and oral work but testified that he always judged success beyond the raw score that a student received for the purposes of a report card.
[36] Rabbi Goldman’s duties under the Teaching Contract included preparation of a course outline containing course content, planning for assessment (teaching strategy), achievement indicators and learning outcomes (linkage to the British Columbia curriculum organizers). This last item was a unique feature of a combined Judaic program and a general studies program being offered to students, which Rabbi Goldman explained in the following manner:
…since our school is a 50 percent Judaic program and 50 percent general studies program, we had to find areas within the Judaic curriculum that would fulfill some of the B.C. Ministry outcomes to get certain amount of hours. So, often in our -- the language arts outcomes or analytical reasoning skills, which is something we do on a very regular basis in the Judaic curriculum, we were able to link it to the B.C. curriculum as well.
Q And just to be clear, these government mandated curriculum points, these were not related to Judaic studies at all. They were sort of general knowledge, what you call general knowledge?
A Well, I would say it didn’t change our Judaic curriculum at all, but it was -- it was general studies or general knowledge that the -- I guess that happened to have fallen under the realm of our Judaic curriculum.
(Transcript, Vol. 4, page 507, lines 1-18)
[37] Rabbi Goldman was also required under his Teaching Contract to attend parent/teacher interviews, staff meetings, professional day development sessions four to five times yearly and also to supervise students during recess and lunch. He also led prayer services for the older students. His Teaching Contract did not require that he conduct any of his contractual duties in his home.
[38] In addition to his contractual duties at VHA, Rabbi Goldman testified that he was actively involved in the Vancouver Jewish community, leading prayer services in the community on regular weekdays and on holidays and leading prayer services on almost every Sabbath at a local synagogue in Richmond, British Columbia, composed of about 20 Jewish families. He testified that for an extended period, in the absence of a lead rabbi, both he and Rabbi Estrin led services at this synagogue. In this regard he stated:
…and the two of us took on with one other community rabbi, we took on the helm of the entire congregation, and we became, I guess, three rabbis who were leading the congregation. And we did all that pro bono. (Emphasis added)
(Transcript, Vol. 3, page 474, lines 17 - 20)
[39] Rabbi Goldman’s involvement with the synagogue in Richmond occurred in his spare time. The course content in the Torah that he offered at this synagogue was very similar to the content taught at the VHA. However, he did not formerly test or grade the members at the synagogue. His preparation was also different since the synagogue members were adults. For the children attending this synagogue, a special miniature version of the sermon was offered. When asked to compare his roles in teaching students at VHA as opposed to members at the Richmond synagogue, he testified that they all had the same goal which was to deliver the message of Torah to the audience in order to inspire them to live as Torah observant Jews.
[40] Rabbi Goldman also provided bar mitzvah lessons within the community. At one point, he was approached by the board of the Schara Tzedeck and Rabbi Rosenblatt to teach primary bar mitzvah at the synagogue. In carrying out these duties, he taught boys how to read the Torah on Saturday mornings and sometimes on several days through the week. He tailored his Torah instruction differently than at the VHA, as many of the boys to whom he taught bar mitzvah lessons at the Schara Tzedeck were not students at the VHA. He also acted as a witness for conversions and for divorce proceedings, gave lectures at the Schara Tzedeck and in peoples’ homes during his spare time and hosted people for Sabbath and for other holiday meals. Rabbi Goldman provided a number of additional examples of his activities in the Jewish community outside of his teaching responsibilities at VHA but they occurred outside the relevant taxation years at issue in these appeals.
[41] None of those community activities was required under his Teaching Contract with the VHA but Rabbi Pacht, as head of the school, strongly encouraged him to be involved.
E. Rabbi Shlomo Estrin: [42] Rabbi Estrin followed a little different path to his ordination. In 1987, he graduated from California State University with an Arts degree as a screenwriter. While in college he started working with youth at a residential treatment centre and continued this work after graduation. He testified that initially he was not religious until his brother sparked his interest in Judaism.
[43] Around 1990, he relocated to a Yeshiva (house of learning) in Jerusalem to study Torah on a full-time basis. At a certain point during the ten years he spent in Israel, he decided he wanted to become a teacher, which led him to enroll in the same curriculum stream that Rabbi Goldman had studied at Ner Le’Elef. While studying at Ner Le’Elef, Rabbi Estrin took courses in Jewish law (Halachah), the Torah and courses on how to provide guidance in marriage, community growth, listening skills and in “reading people”. He received his ordination in 2000 and moved to Vancouver to teach at the VHA.
[44] At the VHA, during the relevant taxation years, Rabbi Estrin taught Torah and specifically classes in Chumash or Bible, Halachah or Jewish law, Jewish history, Hebrew, origins and practices of Jewish holidays, Mussar or conduct, Navi or prophets, Talmud and ethics. At various points in time during this period, he taught students in Grades 2, 4 and 5. His goal in teaching at VHA was to give his students as well as their families “…true Torah teaching and set a true example for what Torah is,…” so that they could grow to appreciate the special heritage of the Jewish people (Transcript, Vol. 4, page 529, lines 22-23). He taught the Hebrew language with the goal of providing his students with the tools to learn Torah on their own initiative and to be able to pray from a prayer book.
[45] In addition, Rabbi Estrin taught and led prayers with the students on a daily basis. He taught tunes to the students to assist in remembering the prayers and composed “yiddle riddles” to assist in discussions of weekly Torah readings. He hosted the families of students for Sabbath on a weekly basis and counselled families on personal issues.
[46] Apart from his duties at the VHA, Rabbi Estrin, like Rabbi Goldman, was also involved in the Richmond synagogue, giving weekly Torah lessons, leading services on Sabbath and occasionally delivering sermons and classes at not only that synagogue but at others as well.
F. Rabbi Adam Lichtman: [47] In 1999, Rabbi Lichtman commenced two years of study in Torah at the Wisconsin Institute for Torah Study. In 2001, he attended Yeshiva Toras Chaim in Florida and in 2002 began his studies at the Rabbinical Seminary of America in New York, from which he received his ordination in 2012.
[48] After his ordination, he learned that Rabbi Pacht from VHA was recruiting a Judaic studies teacher. He joined the staff of the VHA commencing in the 2012-2013 school year. During the relevant taxation years, he taught Chumash, Navi, Jewish holidays, Jewish law, Jewish history and Mishmah. He taught Grade 2 in the morning and Grade 5 in the afternoon. He was not certified to teach courses in the general studies curriculum. He led his students including Grade 3 students each morning in prayers or Tefillah. Every Friday, he also delivered a sermon to his classes regarding the weekly Torah reading, which included topics such as humility, honesty, the 613 commandments and generally ethical lessons on how to live as Torah observant Jews.
[49] Similarly to the other Appellants, Rabbi Estrin was required to assess his students on their course performance. In addition, he attended parent/teacher interviews and staff meetings and supervised students at recess and over lunch. These duties were all in accordance with his duties prescribed in his employment contract.
[50] Rabbi Estrin also provided counselling to his students and their families on matters such as how to deal with death. He attended houses of mourning to deliver sermons and prayer services. He also visited students when they were ill at home or in hospital.
G. Congregation Schara Tzedeck and the Role of the Synagogue Rabbi: [51] Of the approximately 600 families in the Vancouver Orthodox Jewish community, 500 of these families are members of the Schara Tzedeck, the largest Orthodox Jewish synagogue in Vancouver. Rabbi Rosenblatt has been employed as a rabbi at this synagogue since 2003.
[52] Because of the nature of the issues in these appeals, a comparison of the Appellants’ activities and duties at the VHA and in the Vancouver Jewish community to the role that Rabbi Rosenblatt has as a synagogue rabbi is helpful. Rabbi Rosenblatt’s role is described in his employment contract as “…that of a rabbi and Judaic and religious leader of the congregation” (Exhibit R-6, paragraph 3.1). This contract outlined a list of his duties and attached it as Schedule “B” to the contract. Those duties included:
• serve as the Congregation’s pulpit Rabbi, including attending religious services on weekdays and on Shabbat and festival days, delivering a “D’var Torah” from the pulpit on Shabbat morning and festival days and delivering “D’var Torah” and teaching those relevant classes as directed through the planning of the education, programming, and strategic planning committees of the Congregation;
• develop and effect, in cooperation with the Board, “outreach” programs…;
• work in cooperation with the Orthodox Rabbinical Council of British Columbia to facilitate conversion…;
• oversee the Congregation’s Bar and Bat Mitzvah programs,…;
• develop and effect, in cooperation with the Board, the Congregation’s youth activities and programs,…;
• perform wedding ceremonies for members of the Congregation…;
• visit sick and infirm members of the Congregation;
• perform funeral ceremonies of deceased members of the Congregation;
• in months where unveilings are permitted by halacha attend at and perform the rites for unveilings for deceased members or the deceased relatives of members,…;
• provide spiritual, moral, and personal counselling to members…;
• in conjunction with such other employees of the Congregation…;
supervise, plan and administer programs of religious education;
assess the appropriateness of visiting scholars and programs…
• serve as final content editor…;
• supervise the Kashrut of the Eruv, the mikveh and all food preparations…;
• develop his own knowledge…;
• work in conjunction with the Board…;
• serve as a permanent voting member of the Religious Services Committee;
• give direction to any member of the staff or clergy of the Synagogue…;
• perform limited executive and administrative functions…;
• …hosting members of the Congregation…;
• maintain fixed, regular office hours in the Synagogue on weekdays,…;
• attend at such meetings of the Board or the Executive or committees of the Congregation…;
• generally devote such time as is required to effectively conduct the religious and spiritual affairs of the Congregation;
• generally promote the good reputation of the Congregation….
[53] Rabbi Rosenblatt’s testimony respecting his activities and duties were consistent with the list of duties of a synagogue rabbi outlined in the Schedule “B” attached to his employment contract. He delivers sermons at Schara Tzedeck and spends time in the community outreach program recruiting new members to the synagogue, one of the primary sources of funding for the activities of the synagogue. He is responsible for a weekly blog that disseminates the Torah message. He also spends time teaching Torah in both the synagogue and the larger Jewish community. As part of this duty, he teaches an after-school education program at the Schara Tzedeck, called the “T-Jex” or “The Jewish Experience” (Exhibit A-1, Tab 13) to children within the Jewish community who are not enrolled in a Jewish elementary school. He testified that the nature and aim of the T-Jex curriculum at his synagogue is the same as the Judaic studies curriculum offered at the VHA, although admittedly less intense. He also taught weekly Torah classes at Talmud Torah, a Vancouver Jewish community day school for the broader Jewish community. He also g