Includes – What Department of Justice Says it Means in Canadian Law

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Includes – What Department of Justice Says it Means in Canadian Law

The Department of Justice Canada’s definition of “includes” supports Apu’s Theory that Canadians receive income as an Income Tax Act (“ITA”) “officer” for Her Majesty’s ITA “office” as “public money” for the Consolidated Revenue Fund (“CRF”).

Written and Published Exclusively for Canada’s Department of Justice. Not normally available to the public.

Summary

The Department of Justice Canada’s definition of includes supports Apu’s Theory that Canadians can receive income as an Income Tax Act (“ITA”) “officer” for Her Majesty’s ITA “office” as “public money” for the Consolidated Revenue Fund[1] (“CRF”). This is because it is the Receiver General that receives income tax payments for the CRF. The crux is the status of the money. Does the money stay as private property, or does the owner consent to convert[2] it, as deemed by ITA s.6(3) into Financial Administration Act (“FAA”) s.2 “public money” for the CRF? The status of the person is secondary to the status of the money.

Introduction

Some believe the word “includes” is restrictive. They are wrong. One of our tipsters lent us The Composition of Legislation[3] published for the Department of Justice (click on the picture of the book’s cover page above to download the 350K PDF of the relevant pages). The author, Elmer Driedger, was Deputy Minister of Justice and Deputy Attorney General of Canada. As Deputy Ministers stay longer and so wield more power than Ministers, we can treat what Driedger says in this particular book as gospel. Driedger also published The Construction of Statutes, Butterworths, 1974, just two years earlier. Oddly, this earlier text, which is available to the public (as opposed to The Composition of Legislation which was available only to the Department of Justice) does not address the words “includes” or “deem”.

In brief, the word “includes” can enlarge[4] or settle doubts about the meaning of a word. Let’s see how this impacts the ITA definition of “employee”.

First Definition of Includes (To Enlarge)

Under Chapter VI, Definitions, page 46 Driedger discusses “includes”:

TO ENLARGE

A definition may retain the ordinary meaning of a word and add a meaning it does not normally have (emphasis is mine):

lease” includes an agreement for a lease.

servant” includes agent.

money” includes negotiable instrument.

Occasionally the meaning is virtually exhaustive.

intoxicant” includes alcohol, …(lists many other things)… capable of human consumption that are intoxicating.

Includes rather than means is used to catch anything that didn’t happen to come into the draftsman’s mind; he has therefore protected himself against oversight. Similarly, in the following examples:

rodent” includes all members of the order Rodentia.

mark” includes mark, sign, device, imprint, stamp, brand, label, ticket, letter, word or figure.

Income Tax Act Amended in 1953: Employee Includes Officer

Only 81 days after the Supreme Court of Canada ruled in Goldman[5] that income for an office could only be profit for that office, the ITA definitions of “officer” and “employer” were both introduced[6] at the same time in 1953:

employee” includes officer

employer”, in relation to an officer, means the person from whom the officer receives the officer’s remuneration

As both of these definitions were introduced at the same time, and there is obviously a relationship between employee and employer, the definitions of these two words must be defined to work with each other. Page 50 of Driedger’s book helpfully discusses the phrase “in relation to” as:

Words in addition to means or includes may be used to introduce a definition. There are instances where a word is to have a special meaning in one case, and its ordinary meaning in other cases (emphasis is mine):

titlein relation to a loan secured by a mortgage on a long-term lease means the entire interest of the lessee.

Conclusion for First Definition of Includes (To Enlarge)

Using Driedger’s first definition, one can conclude that an ITA “employer” has two meanings:

  1. A special meaning in one case”: one who pays a worker working as an ITA “officer”
  2. An ordinary meaning in other cases”: one who pays a worker who is working, but not as an ITA “officer”

This means CRA can walk into any activity in CANADA[7] and, if they see someone working for somebody else, can proceed to address that worker as an ITA “employee” without prejudicing their right to work or not to work as an ITA “officer”. ITA s.6(3) deems (which Driedger on page 133[8] says “creates a legal fiction”) all workers in Canada do ITA “employment” or ITA “office” sources of income as an ITA “officer”. However, ITA s.6(3) cannot force that worker to work only as an officer, as evidenced by the dual meanings within the ITA definition of “employer” that we just saw above, and also because ITA s.6(3) explicitly allows a taxpayer to rebut the deeming to work as an ITA “officer”.

This fits Apu’s Theory that the ITA has jurisdiction to recognize (but not to tax) private property, as an ITA “employee” can then be either a worker that is:

  1. Not an ITA “officer”; earning private property which ITA s.3(f) deems equal to zero, and from which income tax is calculated, or
  2. An ITA “officer”;  earning FAA s.2 “public money” (instead of private property), from which income tax owed is calculated.

Second Definition of Includes (To Settle Doubts)

Driedger also has a second meaning of “includes” on page 46:

TO SETTLE DOUBTS

There are cases where there may be doubt whether a word means a particular thing. Includes is used, but rather than add a meaning it serves to settle a doubt. For example –

highway” includes any public road, street, lane or other public way or communication

unmarried person” includes a widow, a widower and a divorced person.

child” includes a natural child, stepchild or adopted child.

wares” includes printed publications.

land” includes mines, minerals, casements, servitudes and all interests in real property.

Conclusion for Second Definition of Includes (To Settle Doubts)

If we apply this second definition, we still have the natural and ordinary meaning of employee, plus, “to settle a doubt”, an ITA “employee” can also be an ITA “officer”, so when CRA says “employee” they still mean either someone working for someone else within CANADA, or someone working as an ITA “officer”.

Conclusion for Both Definitions

An ITA “employee” is non-discriminatory[9] by having two meanings: a worker who is not an ITA “officer” or a worker who is an ITA “officer”. By the Government’s own guidebook by Driedger, either meaning of includes means an ITA “employee” can, as an option, have a relationship to an ITA “officer”.

Categories: legal definitions, income tax

Tags: Consolidated Revenyue Fund, includes, officer, private property, public money

 

  1. Financial Administration Act, R.S.C., 1985, c. F-11, s.2
  2. Conversion is a s.322(1) Criminal Code offence, so the only person who can lawfully convert the money is the owner of the private property (“consensual interference”): Halsbury’s Laws of England, 1913, Vol. 27, p. 501
  3. The Composition of Legislation, Elmer A. Driedger, Second Edition. Revised, The Department of Justice Ottawa, 1976
  4. Driedger on page 45 also discusses definitions used to narrow the ordinary meaning of a word. Driedger does not  list “includes” in his examples.
  5. Goldman v. Minister of National Revenue, [1953] 1 S.C.R. 211, ruled Feb 23, 1953.
  6. An Act to amend The Income Tax Act, 1-2 ELIZABETH II, CHAPTER 40 (Assented to May 14, 1953). This is reproduced in Apu’s Theory, Chapter 12.
  7. Work is a civil right within the jurisdiction of the provinces and outside the jurisdiction of the federal government: Reference re legislative jurisdiction of Parliament of Canada to enact the Employment and Social Insurance Act (1935, c. 48), [1936] SCR 427. That could be why the ITA deems (see next footnote) Canadians work as a federal ITA “officer”.
  8. The Composition of Legislation, Elmer A. Driedger, Second Edition, page 133: “Deemed – Used to establish legal fictions. For a statutory purpose it is often necessary to deem a thing to be something it is not.”
  9. This position also absolves CRA from having to teach its agents about the formation, legal powers, legal duties, and identification of an ITA “employee” that is an ITA “officer”.

 

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