The Queen v. Fisher, 96 DTC 6291, [1996] 2 CTC 103 (FCA)

Isaac C.J.: — This application by the Crown was heard at the same time as similar applications in Court Files A-305-94 and A-306-94. A copy of these reasons shall be filed in each of these files and when so filed, shall constitute the reasons for decision in them.

The issue in each application is whether paragraph 56(1 )(b) of the Income Tax Act (the “Act”) is constitutionally invalid as being inconsistent with section 15 of the Canadian Charter of Rights and Freedoms.

In each application, the Tax Court judge, acting under the Informal Procedure, followed the majority decision of this Court in Thibaudeau v. R. (sub nom. Thibaudeau v. Canada), [1994] 2 C.T.C. 4, 94 D.T.C. 6230, and concluded that paragraph 56(1 )(b) of the Act was offensive to section 15 of the Charter, with the result that child support payments paid to each of the applicants was not subject to income tax in their hands.

The decision of this Court in Thibaudeau was reversed by the Supreme Court of Canada which, by a majority, has declared that paragraph 56(1 )(b) or the Act was constitutionally valid and not inconsistent with section 15 of the Charter.

While we have every sympathy for the applicants, we are all of the view that the applications must be allowed, since this majority decision of the Supreme Court of Canada is binding on this Court.

Before disposing of these applications, we wish to comment on one matter which was brought to our attention in argument. It was represented to us that the learned Tax Court judge was of the view that a notice of constitutional question as required by section 57 of the Federal Court Act, was not necessary in the Informal Procedure where the constitutional validity or applicability of a law is raised in proceedings before that Court.

We are all of the view, contrary to the view expressed by the learned Tax Court judge, that in every case in which the constitutional validity or applicability of a law is brought in question in the manner described in section 57 of the Federal Court Act, the notice required by the section shall be given.

The applications will therefore be allowed, with costs fixed at $250 payable to each respondent pursuant to section 18.25 of the Tax Court of Canada Act, the decisions of the Tax Court are set aside and each of these matters is remitted to the Tax Court for the redetermination in a manner not inconsistent with these reasons.

Applications allowed.