Colebrooke et Al v The National Insurance Board
| Jurisdiction | Bahamas |
| Judge | Sawyer, P.,John, J.A.,Blackman, J.A. |
| Judgment Date | 23 November 2010 |
| Neutral Citation | BS 2010 CA 260 |
| Docket Number | CAIS No. 127 of 2008 |
| Court | Court of Appeal (Bahamas) |
| Date | 23 November 2010 |
Court of Appeal
Sawyer, P.; Blackman, J.A.; John, J.A.
CAIS No. 127 of 2008
Mr. Warren Cathcart, Mr. Arnold Forbes with him for the appellants
Mr. Harvey O. Tynes, Q.C., Mrs. Heather Maynard, Mrs. Melisa Wright-Knowles and Ms. Tanisha Tynes with him for the respondent
Employment Law - Appeal — Contract of service — “employed persons” within the meaning of the National Insurance Act — whether the National Insurance Act was intended to cover persons carrying out religious functions — contract of service between minister of religion and his church — nature of contractual relationship — presumption against an intention to create a legally enforceable contract of service — Appeal allowed.
Contract Law - Intension to create legal relations — Contract of employment — contract of service between minister of religion and his church — Appeal allowed.
This is an appeal from the decision of Stephen Isaacs, J., (“the learned judge”) given on 1st September, 2008, in which he dismissed the appellants' application for judicial review of a decision by the National Insurance Board (“the respondent”) refusing to change its categorization of the first appellant and 28 others in a similar relationship to the second appellant from that of “employed persons” or “employees” to that of volunteers.
At the hearing on 30 March, 2010, there was a great deal of discussion as to whether the appellants were seeking to impugn the constitutional validity of the National Insurance Act, (Ch. 304) (“the Act). Mr. Cathcart quite candidly informed the Court that that was not what he was suggesting by his reference to Article 22(1) of the Constitution. His contention, as I understood it, is that when a public body, like the Board is seeking to apply the act to religious organizations, they must keep at the forefront of their minds that freedom of religion is guaranteed to every person in The Bahamas by that Article and that in so far as any law may vitiate or interfere with the free exercise of that right by persons in The Bahamas, the law will have to be read in conformity with that Article and may, as a result, lead to the non-application or at least a proportionately adjusted application of the law to the particular set of facts and circumstances.
Also at that hearing, and as 1 understood him, Mr. Tynes, as he did at the resumed hearing on 1 June, 2010, submitted, among other things, that the appellants' application for judicial review of the Board's decision that they were “employer and employed persons” for the purpose of the Act, was statute-barred as well as misdirected since they knew what the determination of the Board was since 1992 and they did not seek to appeal it to the appeal tribunal and did not at any time between 1992 and 2007, apply to the Supreme Court for judicial review.
The respondent had taken similar objections to the proceedings before the learned judge in the Supreme Court but the learned judge, quite rightly, in my judgment, overruled those objections and heard the application on its merits.
I agree with the learned judge's decision on the objections by the respondent for the reasons he gave and would only add that the fact that the appellants were not notified of the time and place when the Board was going to consider their representations that they were not employed persons and employer, and did not inform the appellants that they could attend and participate rendered that decision a nullity under the fundamental principle of fairness (Wednesbury fairness), and I am not aware that time runs from a nullity for the purposes of the Limitation Act, 1995 (Ch. 83).
In light of the fact that in the second preamble to the Constitution The Bahamas has recognised that “the preservation of their Freedom will be guaranteed by a national commitment to Self-discipline, Industry, Loyalty, Unity and an abiding respect for Christian values and the Rule of Law” and the number of churches and church-organizations in The Bahamas, I invited counsel for the respondent to assist us in considering this appeal by letting us have any information they may have on similar organizations like the appellants' so that we may not ourselves fall into error in this appeal.
When the hearing resumed on 1 June, 2010, the respondents did not present any additional material, we were therefore left to decide this matter on the material adduced before us.
The undisputed factual background to the appellants' application for judicial review has conveniently been set out in the judgment of the learned judge. I gratefully adopt and adapt it in this judgment. It is as follows:
The first appellant has been a member of Worldwide Order of Special Fulltime Servants of Jehovah's Witnesses (“the Order”) since 1973. The Order is a non-profit company registered under the Companies Act; it has its local facilities at Hillview Court, Highland Park, Nassau. Those facilities are called “Bethel”.
Members of the Order receive a monthly reimbursement for their private expenses; those assigned to Bethel receive $34.00, traveling overseers receive $40.00 and full-time preachers receive $350.00. The first appellant is a full time preacher as are 25 other members.
The National Insurance Act, (Ch. 350) (“the Act”) was assented to on 12 December, 1972 but did not enter into force until 7 October, 1974 in relation to employed persons and on 5 April, 1976 in respect of self-employed persons.
On 1 July, 1977, the Order made inquiries in writing to the respondent as to whether the Order was liable to make national insurance contributions on behalf of its members.
By a letter dated 9 October, 1978, the respondent informed the order that the relevant members were employed persons and that the Order could challenge that decision under the National Insurance (Determination of Claims and Questions) Regulations. The Order did not challenge the respondent's determination at that time.
In July, 1989, the Order started making contributions for its ministers but by a letter of 1 February, 1991, it requested an exemption from such payments for its full-time ministers. By its letter dated 16 May, 1991, the respondent affirmed its earlier decision that the ministers were employed persons and therefore could not be exempted. The respondent added that by the Third Schedule to the Contribution Regulations, exempted workers were those under age 14, persons covered by the Vienna Convention on Diplomatic Relations and workers with International Organizations such as the United Nations. Later, the appellants opined that the Third Schedule was not relevant to its members.
On 27 January, 1992, the respondent decided - “determined” - that the ministers were employed persons and they must therefore pay contributions under the Act. The appellants did not appeal that decision, although they could have done so under the National Insurance (Determination of Questions) Regulations.
Subsequently, the Order engaged counsel to represent it and on 21 May, 2004, counsel wrote to the respondent requesting it to revisit the issue. At the request of the respondent conveyed by its letter of 13 August, 2004, counsel sent a revised copy of the vow of obedience and poverty on 4 January, 2005, for the respondent's consideration. The respondent replied to that letter by a letter dated 12 April, 2005 under the hand of counsel to the respondent. The material paragraphs of that letter read:
“Please be advised that The National Insurance Board maintains its position that the ordained ministers are employed persons and subject to payment of national insurance contributions…
“The fact that they took a vow of obedience and poverty does not alter the fact that they are working for the Christian Congregation of Jehovah's Witnesses. If they are injured whilst preaching the gospel of God, The National insurance Board would be obliged to pay all of their industrial expenses, even if they had commenced preaching for one day.
“There are other denominations within The Bahamas with similar workers who took vows of poverty …
“However, these denominations pay national insurance contributions on behalf of their employees.”
I will refer to the terms of that letter later on in this judgment as it is the point at which the issue between the parties appears to have crystallised.
In a letter dated 30 January, 2006, counsel referred to the letter of 12 April, 2005 as a “determination”. And, by a letter dated 16 February, 2006, the respondent affirmed its position in accordance with the resolution of 27 January, 1992 and advised the respondent's counsel of his right of appeal under regulation 5(3) of the Determination Regulations.
After again writing to the respondent on 19 July, 2006, counsel for the appellants began the judicial review proceedings on 16 August, 2006 by issuing an ex parte summons supported by affidavit seeking leave to apply for judicial review.
On 23 November, 2006, leave was granted and on 13 December, 2006, the appellants filed their originating notice of motion seeking the following reliefs:
“1. A declaration that the first applicant, in his capacity as a member of the religious order known as the Worldwide Order of Special Fulltime Servants of Jehovah's Witness … is not liable to make any contributions under the National Insurance Act.
2. A declaration that members of the Order are not liable to make contributions under the Act.
3. A declaration that the second applicant is not liable to make any contributions under the Act with reference to the members of the Order.
4. A declaration that the putative contributions collected by the respondent from January 27th 1992 onwards were unlawfully exacted from and that the applicants are entitled to repayment thereof, respectively.
5. An Order...
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