RABBI ADAM LICHTMAN, Appellant, v. HER MAJESTY THE QUEEN,, 2017 TCC 252

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 thedeceased 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 rabbioutlined in the

Schedule “B” attached to his employment contract. He delivers sermons at Schara Tzedeck and spends time in thecommunity outreach program recruiting new members to the synagogue, one of the primary sources of funding for the activities of thesynagogue. He is responsible for a weekly blog that disseminates the Torah message. He also spends time teaching Torah in both thesynagogue 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 aJewish elementary school. He testified that the nature and aim of the T-Jex curriculum at his synagogue is the same as the Judaic studiescurriculum offered at the VHA, although admittedly less intense. He also taught weekly Torah classes at Talmud Torah, a VancouverJewish community day school for the broader Jewish community.

He also gave lectures at various locations within the Jewishcommunity, including private homes and community centres. [54] Despite the extensive list of duties contained in his employment contract with the Schara Tzedeck synagogue that have noconnection or very little connection to teaching, Rabbi Rosenblatt took the view that his teaching responsibilities were his “…primaryresponsibility as a rabbi” (Transcript, Vol. 2, page 243, line 11).

In comparison, the duties listed in the Teaching Contracts that theAppellants had with VHA are those that would be typically required of any teacher in a typical school setting and although some of theactivities undertaken by the Appellants within the Jewish community are similar to those duties of Rabbi Rosenblatt, they occurred in theAppellants’ spare time and were not a part of their contractual duties with VHA. V. Analysis of the Expert Reports: A. Admissibility of the Rabbinical Court Report: [55] The Appellants tendered this report to the Court when the hearing resumed in May, 2017.

The author of this report was RabbiRosenblatt and the Appellants proposed that he be accepted as an expert witness on the doctrine and principles of Orthodox Judaism. Thereport had been reviewed for its accuracy and co-signed by Rabbi Feigelstock. He made no substantive changes to Rabbi Rosenblatt’sreport and testified that the report represented a “formal ruling by the Beit Din” or the Rabbinical Court (Transcript, Vol. 2, page 165,lines 2-3).

Rabbi Rosenblatt also had a brief conversation with Rabbi Hillel Brody, head of the Vancouver Torah Learning Centre, todiscuss the accuracy of information contained in the report. [56] Appellant counsel submits that this report meets all of the requirements or criteria for expert reports set out in The Queen vMohan, (SCC), [1994] 2 SCR 9 (“Mohan”): (

i) relevance, (ii) necessity, (iii) expert that is properly qualified and (iv)absence of any exclusionary rules. [57] Respondent counsel did not specifically object to the admissibility of the Appellants’ report based on the Mohan criteria butrather based his objection on two very specific grounds: (

a) the report was tendered on behalf of the Rabbinical Court of British Columbia and was presented in a manner that was meantto “bolster the perceived reliability of their evidence” as a formal ruling of a religious court” (Respondent’s Written Submissions,

paragraph 179), and (

b) both Rabbi Rosenblatt and Rabbi Feigelstock were not sufficiently independent from the three Appellants which prevented them from providing the Court with fair, objective and non-partisan expert evidence that would assist the Court with the issues. [ 58 ] Although both of these objections have merit, I have concluded that neither is sufficient to exclude the Rabbinical Court Report.

a) Objection Based on “Formal Ruling” of a Religious Court [ 59 ] The Respondent objects to the fact that the Appellants have tendered the report not only on behalf of its authors, Rabbi Rosenblatt and Rabbi Feigelstock, personally, but also as a report of the Beit Din or Rabbinical Court of British Columbia. The Respondent argued that this amounts to an attempt by the Appellants to improperly cloak the evidence with an added layer of authority in presenting it from a religious court in order to bolster the perceived reliability of the evidence of both Rabbis.

This “…heightens the danger that the fact finding process will be distorted and the Court will inappropriately defer to the Rabbis’ opinion” (Respondent’s Written Submissions, paragraph 177) by lending undue weight to the opinion of both Rabbis. The Respondent felt this danger would be significantly increased by the fact that both Rabbis purported to not only speak on their own behalf but also on behalf of the Rabbinical Court of British Columbia.

Rabbi Feigelstock testified that he reviewed the report because as a ruling of the Rabbinical Court it must contain information that is 100 percent correct (Transcript, Vol. 2, pages 147-148 and pages 173-174). [ 60 ] The Appellants correctly pointed out that there is nothing improper respecting organizations and entities holding and rendering opinions on its behalf.

In fact, there have been precedents before this Court in which reports are tendered and accepted on behalf of a particular organization, which has been authored by its members ( Grimes v The Queen , 2016 TCC 280 , 2016 DTC 1210 and Zeller Estate v The Queen , 2008 TCC 426 , 2008 DTC 4441). [ 61 ] I acknowledge that the Respondent’s concerns are legitimate but the decisions or rulings of any religious court, no matter how prestigious, will have no force of law before this Court.

I rely on the well-known common-law principle of stare decisis that this Court is bound only by decisions of the Supreme Court of Canada, the Federal Court of Appeal and this court in the general procedure and in that order. I do not believe that I will be ensnared by any baseline danger of giving undue weight to this report or the evidence of either Rabbi Feigelstock or Rabbi Rosenblatt because it is a report of a religious court. While I acknowledge the Respondent’s concerns, I am able to carefully and fairly evaluate the evidence before me and weigh it accordingly.

b) Objection Based on the Independence of Rabbi Feigelstock and Rabbi Rosenblatt [ 62 ] This is the Respondent’s main objection to the admissibility of the Appellants’ report because the facts call into question the ability of both Rabbi Feigelstock and Rabbi Rosenblatt to provide fair and objective opinion evidence when they have extensive personal and professional ties to the Appellants. [ 63 ] Both Rabbis have wide ranging ties with the Appellants and their families through the VHA and the Schara Tzedeck.

The Respondent argued that the facts show that these parties are involved in an intricate web of interconnections of personal, professional and religious relationships within the Vancouver Orthodox Jewish community.

Consequently, the Respondent believes, that on a balance of probabilities, they will be unable to give independent and impartial expert evidence to the Court. [ 64 ] The connection among the three Appellants, Rabbi Feigelstock and Rabbi Rosenblatt can be summarized as follows: • Because the Vancouver Orthodox Jewish community is small and the VHA is the only Orthodox Jewish elementary day school in the community, the families and teachers at VHA are closely connected.

Rabbi Rosenblatt personally knew most, if not all, of the group of approximately 20 to 30 Orthodox Jewish rabbis, including the Appellants, Rabbi Pacht and Rabbi Feigelstock, living in Vancouver. • Rabbi Rosenblatt’s five children, the Appellants’ children and many of Rabbi Feigelstock’s thirteen children, and his 25 to 30 grandchildren and Rabbi Pacht’s children have attended and interacted with each other and with the Appellants in small classes at the VHA that were being taught by the Appellants. • Rabbi Feigelstock’s wife, daughter and daughter-in-law all taught Judaic studies at the VHA.

They are or were at one point colleagues at the VHA of one or more of the Appellants.

A VHA newsletter indicated that the Feigelstock family are a part of the VHA family. • The Appellants testified that their interactions at VHA were not limited to the students but extended to the families, including activities such as counselling, hosting them on the Sabbath and other religious holidays and so forth. • Rabbi Rosenblatt and his wife were actively involved in VHA school activities along with the Appellants and their families. • VHA functions, such as graduation and Shabbaton retreats, were and continue to be held at Schara Tzedeck where Rabbi Rosenblatt presided. • Rabbi Rosenblatt had hosted Rabbi Goldman and his family at his home overnight and also hosted Rabbi Lichtman when he interviewed him for his teaching position at VHA. • The Appellants have many personal and professional interactions with Rabbi Rosenblatt through the synagogue, the Schara Tzedeck.

For example, many VHA activities take place at this synagogue and are attended by all of the parties and their families. In addition, Rabbi Goldman was hired after consultation with Rabbi Rosenblatt and he regularly attends services at the synagogue to pray with Rabbi Rosenblatt. Rabbi Lichtman periodically gave sermons at the synagogue while Rabbi Estrin was responsible for the youth programs at the synagogue.

[ 65 ] The leading case on the admissibility of expert evidence where it is being challenged on the grounds of independence and impartiality is the recent Supreme Court of Canada decision in White Burgess Langille Inman v Abbott & Haliburton Co. , 2015 SCC 23 , [2015] 2 SCR 182 (“ White Burgess ”).

The Court concluded, at paragraph 40, that “…the dominant approach in Canadian common law is to treat independence and impartiality as bearing not just on the weight but also on the admissibility of the evidence….” The test for assessing whether an expert is independent or impartial is to examine whether the relationship or shared interest results in the proposed expert being unable or unwilling to carry out his primary duty to the Court which is to provide fair, non-partisan and objective assistance ( White Burgess , paragraph 30 ).

Apparent or perceived bias resulting from a proposed expert’s relationship or interest with a party to the litigation will not be determinative. At the end of the day, the proposed expert’s duty to the Court must supersede any duty that may exist to the party that calls them as a witness. The Supreme Court in White Burgess at paragraph 32 held that three related concepts, impartiality, independence and absence of bias, underlie the duty to provide independent opinion evidence to the court.

An expert’s opinion must be first, impartial in that it reflects an objective assessment of the matters requiring an expert opinion, second, independent in that it will be the product of independent thinking and judgment uninfluenced by the retainer paid or the outcome and third, unbiased in that it does not unfairly favour one party over another. [ 66 ] In assessing the admissibility of a proposed expert’s evidence where independence and impartiality are at issue, the Supreme Court of Canada, at paragraphs 47-48, stated the following respecting the burden of proof: [47] …While I would not go so far as to hold that the expert’s independence and impartiality should be presumed absent challenge, my view is that absent such challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. [48] Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty.

If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or impartiality, should be excluded. This approach conforms to the general rule under the Mohan framework, and elsewhere in the law of evidence, that the proponent of the evidence has the burden of establishing its admissibility. [ 67 ] The threshold for admissibility, however, “is not particularly onerous” ( White Burgess , paragraph 49 ).

The Supreme Court in its reasons emphasized this at paragraph 49: …exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

Finally, this decision directed that a trial judge is required to examine both the particular circumstances of the proposed experts and the substance of the proposed evidence to determine if the threshold is met. [ 68 ] The Supreme Court at paragraph 49 also sets out several examples where independence and impartiality may or may not become an issue for the purposes of admissibility: …For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible.

In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court.

Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.

Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. (Emphasis added) [ 69 ] In addition to the intricate web of relationships and connections the Appellants and their families have with Rabbi Feigelstock and Rabbi Rosenblatt and their families, the Respondent submitted that the substance of the Rabbinical Court Report contains examples of the authors of that report assuming the role of advocate on the Appellants’ behalf and therefore it is tainted by a lack of objectivity.

For example, both Rabbi Feigelstock and Rabbi Rosenblatt asserted that “…the role of the rabbi is always to give instruction in either Torah knowledge generally or in a specific application” (Rabbinical Court Report, paragraphs 7.1 and 7.3).

However, the Respondent submits that this is not supported by the evidence or by the actual employment duties of Rabbi Rosenblatt as pulpit rabbi at Schara Tzedeck. [ 70 ] The evidence submitted in the voir dire does establish a myriad of personal, professional and religious relationships and interconnections linking the authors of the Rabbinical Court Report and their families to the Appellants and their families. Given these ties, the burden remained on the Appellants, who proposed to tender Rabbi Feigelstock and Rabbi Rosenblatt as experts, to establish their independence and objectivity.

Although the Respondent, in challenging their independence and impartiality has established a “realistic concern” that they may lack a sufficient degree of independence from the Appellants, I conclude that the Appellants have met the low threshold that has been established by the Supreme Court of Canada in White Burgess .

Based on the evidence, the web of ties, although intricate, among Rabbi Rosenblatt, the primary author of the report, Rabbi Feigelstock, who reviewed and co-signed it and the Appellants, is not sufficient to disqualify the expert report and evidence at the threshold stage. [ 71 ] Neither Rabbi Rosenblatt nor Rabbi Feigelstock have any personal direct or indirect financial interest in the outcome of these appeals. They did not receive payment for authoring the report, which was written at the request of Appellant counsel for the purposes of these appeals.

[ 72 ] Despite the many ties within this small and closely-knit Orthodox Jewish community, neither Rabbi Rosenblatt nor Rabbi Feigelstock have actual familial connections to the Appellants. Rabbi Rosenblatt was fulfilling his contractual duties as the rabbi of Schara Tzedeck when he hosted Rabbi Goldman and Rabbi Lichtman.

Rabbi Feigelstock testified that he personally had little interaction with the Appellants although he did acknowledge that his wife was more actively involved with the VHA. [ 73 ] Neither Rabbi Rosenblatt nor Rabbi Feigelstock will incur any professional liability if their report is inadmissible.

Both testified, however, that their reputations as well as the reputation of the Rabbinical Court, could be seriously impacted if the ruling of the Rabbinical Court was found to be less than 100 percent accurate. [ 74 ] Their report, as a whole, set out their responses respecting questions posed to them by Appellant counsel in respect to the principles and beliefs of Orthodox Judaism.

Although the Respondent was of the view that the report contained instances where the Rabbis appeared to take on the role of advocate, those instances are not so self-evident that I would exclude its admissibility based solely on this factor.

Neither Rabbi advocated that the Appellants should be entitled to the deductions they had claimed or that their functions at VHA constituted “ministering to a congregation” within the meaning of the Act . [ 75 ] Both Rabbis testified that they were providing a fully accurate report to the Court and both testified that their relationship with the Appellants did not affect their objectivity in authoring the report. Rabbi Rosenblatt disclosed that he consulted only very briefly with Rabbi Brody regarding accuracy and a Yeshiva student who assisted with formatting only.

Neither Rabbis discussed or showed the Report with or to the Appellants. [ 76 ] On a balance of probabilities, the evidence presented in the voir dire is insufficient in establishing that either Rabbi Rosenblatt or Rabbi Feigelstock were unwilling or unable to provide this Court with fair, objective and non-partisan evidence.

The low threshold test established in White Burgess has been met and consequently there is no basis that would warrant excluding the Appellants’ expert report. [ 77 ] In the alternative, the Respondent argued that if I did admit the Rabbinical Court Report, that it should be accorded very little weight in these appeals for two reasons: (

a) The questions that were posed and the resulting substance of the report has little to do with the customary matters such as divorce, conversion, civil disputes that the court generally deals with. The Respondent pointed out that its witness, Rabbi Eleff, testified that the bulk of any Rabbinical Court’s rulings deal with “life cycle” issues, being primarily divorce. (

b) Based on the testimony of Rabbi Rosenblatt and Rabbi Feigelstock, Rabbinical Court rulings are signed by three rabbis in accordance with rabbinic law and customs. The Rabbinical Court Report authored by Rabbi Rosenblatt and Rabbi Feigelstock contains only their signatures and therefore not the required three signatures signing off on a report.

I will deal with the Respondent’s concerns respecting these two matters in my analysis. [ 78 ] I note that the Ontario Court of Appeal in The Queen v Tang , 2015 ONCA 470 , at paragraph 6 stated: … Burgess indicates, in most cases, suggestions that an expert witness lacks independence or impartiality will go to the weight of the expert's evidence rather than its admissibility. (Emphasis added) [ 79 ] While the Court, in its role as gatekeeper, has a residual discretion to exclude the evidence, the prejudicial effect on the integrity of the trial process in admitting the report does not outweigh the probative value in admitting it.

It will assist this Court in its fact finding functions except where I limit its weight in my analysis. In addition, although there were peculiarities in the manner in which these appeals were conducted and unforeseen complexities that arose, they were nevertheless commenced and conducted pursuant to the Informal Procedure Rules of the Court, which remain less stringent in respect to procedure regarding expert evidence.

In coming to this conclusion, I have applied the two-part test set out in White Burgess in that I have considered the ability of the proposed experts to comply with their duty to the Court to be independent and impartial in light of the Respondent’s concerns and weighed the risks and benefits associated with such admission into evidence. B. Admissibility of Rabbi Eleff’s Expert Report: [ 80 ] The Respondent’s proposed expert report was authored by Rabbi William (Zev) Eleff, who was also the Respondent’s only witness.

He was tendered as an expert on religion in North America with a particular focus on the history, religious laws and practices of Orthodox Judaism and the Rabbinate ( Exhibit R-15). Although not specifically required under the Informal Procedure Rules, Rabbi Eleff signed a Certificate Concerning the Code of Conduct for Expert Witness pursuant to paragraph 145(2) (

c) of the Tax Court of Canada Rules (General Procedure ), SOR/90-688a, as amended (Exhibit R-16). In doing so, he acknowledged his overriding duty to assist this Court impartially on matters relevant to these appeals. [ 81 ] The Appellants challenged the admissibility of the Eleff Report and Rabbi Eleff’s testimony on the basis that the Mohan criteria have not been met. The Appellants argue that:

(1) Rabbi Eleff, as an expert in the history of Judaism in the United States, lacked special knowledge and expertise concerning the practices of Orthodox Judaism in Canada, or of Christianity and Protestantism, or of the laws and practices of Orthodox Judaism in general; (2) the evidence was not relevant to the matters at issue in these appeals; (3) the evidence was not necessary as it usurped the role of the trier of fact by defining the term “congregation” and it failed to address the laws and practices of Orthodox Judaism; and (4) the Report should be excluded since it did not set out the facts and assumptions on which it relied nor did it disclose the source documents. [ 82 ] For the reasons set out in the following analysis of these four Mohan criteria, I am concluding that the Eleff Report and the testimony of Rabbi Eleff be admitted subject to the qualifications and parameters set out in these conclusions.

a) Properly Qualified Expert

[ 83 ] The Appellants’ primary objection to Rabbi Eleff’s expertise focused on the fact that he was better qualified as an American Jewish scholar and historian but that he was not well versed in Orthodox Judaism, its history, laws and practices, within Canada. The Appellants submit that in addition to the concerns over Rabbi Eleff’s qualifications in respect to Orthodox Judaism in Canada, there are also concerns regarding his qualifications to address Christianity and in particular Protestantism. [ 84 ] Rabbi Eleff is an American Jewish historian.

He did not study or take courses in Canadian Jewish history in completing either his academic studies and degrees or his ordination. His Ph.D. dissertation and Master of Arts thesis did not address or discuss Canadian Jewish history. He has not written any books on this topic and, on cross-examination, he displayed little knowledge of Canadian geography. He testified that he has been in Canada on four or five occasions but that he did not visit any of the Canadian Jewish archives and heritage centres situated in major Canadian cities (Transcript, Vol. 4, page 648).

He did not know the history of Jewish communities in many of the Atlantic provinces or in the Prairies. He admitted that he is not an expert in the regional history of Jews in British Columbia nor had he conducted any primary research in this area. [ 85 ] However, notwithstanding that Canadian Jewish history is not Rabbi Eleff’s primary focus of his research and scholarly studies, he testified that he was conversant in this area (Transcript, Vol. 4, page 624). He has written about Jewish history in Toronto and Montreal, the sites of the two largest Canadian Jewish communities.

He was also invited to be editor of the Journal of Canadian Jewish History (Transcript, Vol. 4, page 671). In cross-examination, he readily identified and described the authors and the leading scholarly works on Canadian Jewish history. The fact that he has almost no knowledge of Canadian geography nor the fact that he has not visited many Canadian cities nor any of the repositories for Canada Jewish history, does not preclude him from gaining knowledge about the history and developments of Orthodox Judaism in Canada.

In fact, Rabbi Eleff testified that most of the primary sources, on Canadian Jewish history, are actually held by an institution affiliated with the Hebrew Union College in Cincinnati, Ohio (Transcript, Vol. 4, pages 646, 647 and 669) and, at the very least, there are copies located at the Cincinnati archives. When sources from the Montreal archives are required, he used his research funding to request microfilms from McGill University (Transcript, Vol. 4, page 673).

There was no need for Rabbi Eleff to physically attend at a Canadian archive in order to engage in scholarship studies or to obtain relevant sources. The fact that he did not specifically study any of the regional Canadian Jewish communities or their histories, does not make him any less of an expert in the history and developments of Orthodox Judaism in Canada.

His testimony on this remained uncontradicted. [ 86 ] The Respondent submitted that the Appellants’ objections to Rabbi Eleff’s expertise, respecting Canadian Orthodox Judaism and Canadian Jewish history, were based on two false premises: (1) that Canadian and American Jewish history are distinct fields of study; and (2) that Orthodox Jewish communities in the United States and Canada are disconnected communities with materially different religious beliefs or practices (Respondent’s Written Submissions, paragraph 161). [ 87 ] Based on the evidence, I am of the view that the field of Canadian Jewish history has not developed independently to such an extent that it forms a distinct field of study separate and apart from the broader field of American Jewish history.

Rabbi Eleff’s testimony supports that conclusion that the study of Canadian Jewish history is enveloped “within the broader field of American Jewish history (Transcript, Vol. 4, pages 656-657). In fact, the evidence supports that the former is still in its emergent period and that there are very few scholars who spend their careers focusing on this field (Transcript, Vol. 4, page 643). [ 88 ] I am also of the view, based on the evidence, that the beliefs and practices of Orthodox Judaism in Canadian communities are not so materially different from those of the Orthodox Jewish communities in the United States.

The Appellants’ submissions that these communities are disconnected in respect to their beliefs and practices is not supported by the evidence. First, many of the rabbis in these proceedings had professional ties to the United States. All three Appellants, as well as Rabbi Pacht and Rabbi Rosenblatt are American expatriates or were educated in that country. Many of them received Rabbinical ordination in the United States. Rabbi Rosenblatt occupied the position of treasurer of the Rabbinical Council of America to which many Canadian rabbis belong.

The theological seminary in New York where Rabbi Eleff and Rabbi Rosenblatt were ordained is regarded as “the flagship of modern Orthodoxy in North America and its rabbis populate pulpits throughout North America and in the world” (Transcript, Vol. 4, page 608, lines 16-18). The same Hebrew rituals and prayer books are used in Orthodox Jewish communities throughout both Canada and the United States and they all follow the same sacred texts.

Rabbi Rosenblatt’s contract of employment with his synagogue, Schara Tzedeck, describes his duties as those typically performed by a rabbi of a “North American” Orthodox synagogue (Transcript of the Cross-Examination of Rabbi Rosenblatt, Vol. 3, page 266, lines 7-27).

According to the evidence of Rabbi Eleff, many young men from Canadian Jewish communities study in either Israel or the United States because of the lack of institutionalized rabbinical programs in this country (Transcript of the Re-Examination of Rabbi Eleff, Vol. 4, page 673, lines 20-26). [ 89 ] Further, the Appellants’ concern, that Rabbi Eleff’s qualifications did not qualify him to speak to the laws and practices of Orthodox Judaism, is misplaced and without merit. This concern is based partly on the fact that Rabbi Eleff is not a member of any Rabbinical Court.

His curriculum vitae clearly shows that he possesses the academic training, experience, publications, teaching and lecturing to be considered an expert in the laws and practices of Orthodox Judaism. He received two rabbinical ordinations, one of which was from the same “flagship” seminary that the Appellants’ expert, Rabbi Rosenblatt, had attended. Rabbi Eleff has published many peer-reviewed articles on Jewish law (Halakah) in the Hebrew publication, Beit Yitzhak, the official rabbinical studies journal of the seminary (Eleff Report, Tab A, page 8).

For example, one of the publications was specifically titled “The Intersection between Halakah and History”.

In addition, in 2016 he was interviewed by the Atlantic magazine regarding the subject matter of the conversion of Ivanka Trump to Orthodox Judaism, a matter that was evidently within the ambit of the rabbinical courts (Transcript, Vol. 4, pages 625-626, lines 24-28 and 1-8). [ 90 ] I have not been convinced by the evidence before me that the experience gained from being a member of a rabbinical court, which deals primarily with family matters, necessarily better qualifies someone in providing answers to the matters in dispute in these appeals.

The issue before me involves broader questions relating to the basic texts of Orthodox Judaism, the centrality of Torah education, the role of Orthodox Jewish rabbis and the importance of Torah education for the children of this faith. These are not issues that rabbinical courts and in particular, the Rabbinical Court of British Columbia, deal with on a daily basis. Although these broad questions of religious principles may arise from time to time, a rabbinical court deals primarily with life-cycle issues relating to marriage,

divorce and conversions along with the occasional civil dispute. [ 91 ] However, the Appellants’ objection, that Rabbi Eleff may not possess the necessary knowledge and expertise in Christianity and particularly Protestantism, to qualify him as an expert to address this area, is in fact supported by the evidence. Rabbi Eleff’s knowledge and experience in this area are sparse to non-existent. Any experience he may possess is extremely limited.

After completing his Ph.D. dissertation, he continued with the Department of Near Eastern and Judaic Studies at Brandeis University and taught a course in religious pluralism in the United States that focused on the history of Judaism, Christianity and Islam. He studied these religions with a scholar at Harvard University where he completed numerous reading courses. Apart from these few endeavours, he has never practiced the Christian faith, he has never visited a church and he did not complete primary research in Christianity.

His purported knowledge in this field is derived almost entirely from reading primary sources written by other scholars. His Ph.D. dissertation was on the topic of American Judaism while his Master of Arts thesis was on Orthodox Jews and racial desegregation. His published books focus on various topics on Judaism in the United States.

Similarly, none of his articles, book chapters, book reviews, online articles, Hebrew publications, conference papers or presentations centre on the topic of Christianity and other religions, but instead focus on Judaism. [ 92 ] Consequently, I conclude that Rabbi Eleff is not qualified to speak to Christianity and other religions and therefore those parts of his report that address the concepts of Christianity, particularly Protestantism and other religions will be excised and excluded as part of the evidence that I will consider in my analysis.

However, he is otherwise qualified to provide expert evidence respecting the history of Orthodox Judaism in Canada as well as the laws and practices of Orthodox Judaism in general.

b) Relevance [ 93 ] The Appellants submit that both the Eleff Report and Rabbi Eleff’s testimony are not relevant because they focus primarily on the history of Judaism in the United States which will not be pertinent to the issue before this Court.

More specifically, the Appellants object to the inclusion of the following sections of the Eleff Report: • the Different Religious Movements/Denominations in North American Judaism; • the Role of the Synagogue in North American Orthodox Judaism; • Comparisons between Orthodox Jewish Congregations and the Local Church in Protestant Christianity in North America; • the Current Process Required to Become Ordained as an Orthodox Jewish Rabbi in North America; • How the Roles and Functions of the Orthodox Congregational/Pulpit Rabbis in North America have Changed Over Time. (Appellants’ Argument and Submissions, paragraphs 515-519). [ 94 ] With respect to the Appellants’ first concern regarding the Report’s emphasis on the history of Judaism in the United States, I have already canvassed this area in my discussion of the

section dealing with “properly qualified expert”. Briefly, I am of the view that Canadian Jewish history, as a field of study, is covered under the broad umbrella of American Jewish history. [ 95 ] There is no evidence before me that the laws and practices of Orthodox Jewish communities and Orthodox Judaism in Canada is materially distinct from those in the United States. [ 96 ] Generally, with respect to the remaining Appellants’ concerns regarding the Eleff Report, I go back to the initial decision on the necessity for expert evidence in these appeals. To adequately deal with the issue of whether the Appellants were “ministering to a congregation” within the meaning of paragraph 8(1)(

c) of the Act , I am required to position the Appellants’ activities and functions at the VHA and within the Vancouver Jewish community in the context and principles of Orthodox Judaism. The sections in this report to which the Appellants object, are largely relevant to these appeals subject to several exceptions. [ 97 ] The first

section dealing with “The Different Religions Movements/Denominations in North America Judaism” provides the Court with a basic overall understanding of some of the background information concerning Orthodox Judaism. Although the content is quite extensive, to the degree that it provides information on and a comparison between Reform Judaism and Conservative Judaism, it will assist this Court in appreciating the texts of the Orthodox movement. [ 98 ] The

section titled “The Role of the Synagogue in North America Orthodox Judaism” provides historical and background details on one of the key infrastructures in any viable Jewish community, the synagogue. Traditionally, the role of education was the responsibility of the synagogue. Through time, Jewish day schools developed and assumed this responsibility. This

section of the Eleff Report provides a comparison between the synagogue and the Jewish day school and will be relevant in understanding the role of a rabbi who teaches Judaic studies at a Jewish day school. [ 99 ] However, I am excluding the

section of the Eleff Report dealing with the comparisons between Orthodox Jewish Congregations and the local church in Protestant Christianity in North America. Although this had the potential of being relevant, I have already concluded in my reasons that Rabbi Eleff clearly lacks the expertise to testify as an expert in regard to Christianity. [ 100 ] The

section dealing with the process required to become ordained as a rabbi in North America will also be excluded because, while it may be informative on how rabbinical training prepares rabbis in fulfilling various functions in the community, it is not relevant to these appeals as the status test under paragraph 8(1)(

c) of the Act is not in dispute. [ 101 ] Lastly, the

section in the Eleff Report, that dealt with the evaluation of the roles and functions of Orthodox Pulpit Rabbis and focused on the rabbi/teacher, the rabbi/scholar and the rabbi/pastor is relevant. Rabbi Eleff pursued an historical narrative but it is relevant because the role and function of rabbis in different settings is key to the issue before the Court. A consideration of how their roles evolved over time will assist this Court in understanding the current roles that they now exercise within the Orthodox Jewish community.

[102] The balance of the Eleff Report is relevant to the issue before the Court.

c) Necessity in Assisting the Trier of Fact [103] The Appellants submit that the Eleff Report does not meet the Mohan criteria because the report attempts to usurp the role of thetrier of fact in its deliberate use of the word “congregation” throughout the report and uses it as a synonym for the word “synagogue”.The Appellants argue that in doing so Rabbi Eleff has defined synagogue and those who gather there as the only circumstances in whicha “congregation” exists in Orthodox Judaism.

However, I conclude that he was not attempting to usurp my role but rather he was simplyemploying the common usage of the term, which is consistent with a dictionary definition of “congregation”. In fact, some of the Rabbisin their testimony also utilized the term “congregation” in a similar fashion and the employment contract of Rabbi Rosenblatt with ScharaTzedeck utilizes the term as well. [104] In using the term “congregation”, Rabbi Eleff did not attempt to equate the meaning of “congregation” in Orthodox Judaism toits meaning under paragraph 8(1)(

c) of the Act nor did he attempt to offer his opinion on this. [105] Expert evidence will generally be required in respect to matters that involve religious law. The expert evidence provided byRabbi Eleff is necessary in that it will assist this Court in considering highly technical matters such as the basic texts and practices ofOrthodox Judaism, the role of the rabbis in the modern Orthodox Jewish community and the place of the synagogue within thecommunity, all of which are beyond the expertise of the Court.

d) Exclusionary Rules [106] The Appellants submit that Rabbi Eleff fails to include in his report the facts and assumptions and the source documents uponwhich he relied. Although there is merit in this objection, it does not warrant excluding the entire report on this basis alone. [107] The admissibility of an expert report and expert evidence must be viewed within the proper procedural context.

Subsection 7(1)of the Informal Procedure Rules provides a more lenient approach to such evidence when introduced under those Rules: 7(1) A party who intends to call an expert witness at the hearing of an appeal shall, not less than 10 days before the commencement ofthe hearing, file at the Registry and serve on the other parties a report, signed by the expert, setting out the expert’s name, address andqualifications and the substance of the expert’s testimony. (Emphasis added) [108] In electing to proceed under the Informal Procedure Rules, the parties must recognize that, in the Cou

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