Pratte,
J
[TRANSLATION]:—This
is
an
appeal
from
a
Trial
Division
judgment,
which
dismissed
the
appeal
brought
by
appellant
against
the
assessment
of
his
income
tax
made
for
the
1970
taxation
year.
The
only
problem
raised
by
this
case
concerns
a
sum
of
$5,000
which
appellant
received
from
a
former
employer
after
he
had
been
dismissed
by
the
latter
at
the
end
of
August
1970.
Does
this
sum
represent
for
appellant,
as
the
trial
judge
held,
a
taxable
benefit
from
an
employment?
Early
in
May
1968,
appellant
was
hired
as
financial
director
of
Villa
Medica
Inc,
a
corporation
operating
a
private
hospital
in
Montreal.
The
terms
of
this
contract
of
employment
were
amended
on
January
10,
1969
to
specify
that
appellant’s
services
were
retained
for
a
five-year
period
from
May
1,
1968
to
April
30,
1973,
and
to
provide
that,
in
the
event
that
he
was
dismissed
without
cause
before
expiry
of
the
term
fixed,
he
would
be
entitled
in
his
entire
discretion
and
without
prejudice
to
any
other
recourse
he
could
exercise,
to
demand
that
the
Company
pay
him
a
sum
of
$30,000
as
liquidated
damages.
At
the
end
of
August
1970
when
he
returned
from
vacation,
appellant
was
told
that
his
employment
would
be
terminated
in
August
31.
On
August
20,
the
president
of
Villa
Medica
Inc
told
the
corporation’s
board
of
directors
that
he
was
terminating
appellant’s
employment,
that
the
amount
of
$30,000
that
had
been
paid
to
him
as
a
consequence
of
this
dismissal
would
be
paid
in
24
equal
and
consecutive
monthly
amounts,
and
finally,
that
the
corporation
should
enter
into
a
contract
with
appellant
recognizing
that
his
contract
of
employment
had
been
breached
on
the
condition
stated.
The
board
of
directors
then
adopted
a
resolution
approving
the
proposed
contract
and
authorizing
the
corporation’s
vice-president
to
sign
it.
The
following
day,
August
21,
1970,
appellant
and
Villa
Medica
Inc
signed
a
deed
containing
the
following
stipulations:
(a)
the
parties
agreed
to
terminate
appellant’s
contract
of
employment
on
August
31,
1970;
(b)
Villa
Medica
Inc
undertook
to
pay
appellant
the
sum
of
$30,000
which
it
owed
him
as
liquidated
damages,
in
twenty-four
equal
and
consecutive
monthly
amounts,
beginning
on
September
30,
1970,
provided
that
appellant
made
no
claim
against
his
former
employer;
(c)
appellant
undertook
not
to
work
for
another
private
hospital
in
Quebec
for
a
period
of
two
years;
and
he
further
undertook
to
make
no
criticism
of
Villa
Medica
Inc,
its
directors,
officers,
or
employees.
During
1970
Villa
Medica
Inc
paid
appellant
the
sum
of
$5,000,
on
account
on
the
amount
of
$30,000
which
it
owed
him.
It
is
this
amount
of
$5,000
which
the
judgment
a
quo
regarded
as
taxable
income
from
appellant’s
employment
within
the
meaning
of
section
5
of
the
Income
Tax
Act.
Section
5
of
the
Income
Tax
Act
indicates
what,
in
a
taxation
year,
constitutes
a
taxpayer’s
income
from
an
office
or
employment.
In
principle,
this
income
is
“the
salary,
wages
and
other
remuneration
.
.
.
received
by
the
taxpayer
in
the
year’’,
plus
the
value
of
“other
benefits
.
.
.
received
or
enjoyed
by
him
in
the
year
in
respect
of,
in
the
course
of,
or
by
virtue
of
the
office
or
employment’’.
Counsel
for
the
respondent
maintained,
first,
that
the
sum
of
$5,000
in
question
here
constituted,
within
the
meaning
of
section
5,
either
a
“salary’’,
wages
or
other
remuneration
from
appellant’s
employment’’
or,
in
any
case,
a
benefit
which
was
“received
by
him’’
by
virtue
of
“his
employment,
because
payment
of
this
sum
was
a
benefit
stipulated
in
his
contract
of
employment”.
I
cannot
accept
this
argument.
The
$5,000
received
by
appellant
was
paid
to
him
as
liquidated
damages
to
compensate
him
for
the
detriment
he
suffered
as
a
result
of
the
loss
of
his
employment.
If
the
agreement
liquidating
the
amount
of
these
damages
had
been
concluded
after
appellant’s
dismissal,
it
is
clear
from
the
decision
of
this
Court
in
The
Queen
v
R
B
Atkins,
[1976]
CTC
497;
76
DTC
6258
that
the
sum
of
$5,000
would
not
have
constituted
“salary”,
“wages”,
“remuneration”
or
a
“benefit”
received
by
appellant
by
virtue
of
his
employment.
I
do
not
see
how
the
fact
that
Villa
Medica
Inc’s
obligation
to
pay
damages
was
anticipated
and
liquidated
before
rather
than
after
the
contract
was
terminated
can
alter
the
nature
of
the
amount
in
question:
both
cases
involve
damages
liquidated
by
agreement.
The
second
argument
made
by
counsel
for
the
respondent
was
that
the
sum
of
$5,000
is
deemed,
under
section
25
of
the
Act,*
to
have
been
received
by
appellant
as
remuneration
for
his
services.
This
argument
requires
the
Court
to
consider
whether
on
the
evidence
the
sum
of
$5,000
can
reasonably
be
regarded
as
having
been
received
by
appellant
under
one
of
the
headings
described
in
clauses
(i),
(ii)
and
(iii)
of
section
25.
In
answer
to
this
question
I
would
say,
first,
that
appellant
definitely
did
not
receive
this
sum
in
the
circumstances
provided
for
by
clauses
25(i)
and
(ii):
it
was
not
paid
to
him
either
to
induce
him
to
enter
into
a
contract
of
employment
or
as
remuneration
for
services
which
he
had
rendered.
However,
did
appellant
receive
it
as
provided
for
by
clause
25(iii),
in
consideration
or
partial
consideration
for
a
covenant
with
reference
to
what
he
was
to
do
or
not
do
after
the
employment
terminated?
One
is
at
first
tempted
to
answer
this
question
in
the
affirmative,
since
the
contract
concluded
between
appellant
and
Villa
Medica
Inc
on
August
21,
1970
provided,
on
the
one
hand,
that
Villa
Media
Inc
undertook
to
pay
him
the
sum
of
$30,000,
and
on
the
other
hand
that
appellant
undertook
not
to
work
for
another
private
hospital
in
Quebec,
and
in
addition
not
to
make
criticisms
of
his
former
employer.
From
merely
reading
this
contract,
it
would
seem
that
the
circumstances
contemplated
by
clause
25(iii)
have
been
fulfilled
here.
The
matter
is
otherwise,
however,
if
we
look
at
all
the
evidence
without
giving
undue
importance
to
the
“form”
or
“legal
effect”
of
the
agreement
of
August
21,
1970.
It
then
appears,
in
my
opinion,
that
the
amount
paid
by
Villa
Medica
Inc
cannot
be
reasonably
regarded
as
having
been
received
in
consideration
or
partial
consideration
for
appellant’s
undertaking
not
to
work
in
a
private
hospital
and
not
to
criticize
his
former
employer.
Before
the
contract
of
August
21,
1970
was
entered
into
Villa
Medica
Inc,
which
had
just
dismissed
appellant,
already
owed
him
(and
admitted
owing
him)
the
sum
of
$30,000
which
it
had
undertaken
to
pay
him
as
liquidated
damages;
and
he
was
subsequently
paid
the
$5,000
in
question
here
in
partial
performance
of
this
obligation.
In
other
words,
appellant
in
fact
undertook
not
to
criticize
his
former
employer
and
not
to
work
for
another
private
hospital
in
Quebec,
but
in
my
opinion
the
evidence
established
that
the
sum
of
$30,000
promised
by
Villa
Medica
Inc
did
not
constitute
the
consideration
for
this
under-
taking.
I
accordingly
conclude
that
the
evidence
showed
that
the
sum
of
$5,000
received
by
the
appellant
from
his
former
employer
was
not
paid
to
him
in
the
circumstances
contemplated
by
clauses
25(i),
(ii)
and
(ili).
For
these
reasons,
I
would
allow
the
appeal,
quash
the
judgment
of
the
trial
judge,
vacate
the
assessment
and
refer
the
matter
back
to
the
Minister
for
him
to
re-assess
appellant,
assuming
this
time
that
the
sum
of
$5,000
which
he
reveived
from
Villa
Medica
Inc
does
not
constitute
a
benefit
from
an
employment.
I
would
award
appellant
his
costs
in
this
Court
and
at
trial.