Cirella v. The Queen, 77 DTC 5442, [1978] CTC 1 (FCTD)

The Associate Chief Justice:—The issue in this appeal is whether the plaintiff is liable for income tax in respect of an amount of $14,500, being part of a total amount of $34,400 awarded him by a judgment of the Supreme Court of Ontario in 1972 for damages for personal injuries Sustained by him in a motor vehicle accident in 1968. The reasons for judgment indicate that the particular amount of $14,500 was awarded as special damages in respect of the plaintiff’s loss of income for the period from the time of the injury to the end of 1971.

The plaintiff is a welder. At the time of the injury he was employed as such by a company known as “Indofab” and earning $108 per week. He went back to his employer after his recovery but, because of the permanent disability arising from his injuries, he was unable to do the heavy work involved in his job. Since then he has carried on a light welding business of his own. The precise date when the business was Started is not clear. the evidence of the plaintiff being that it was in 1970 or 1971.

In reassessing the plaintiff for the 1972 taxation year, the Minister included the $14,500 in the plaintiff's income and his action in so doing was upheld by the Tax Review Board.

In support of the assessment, the defendant in the defence cited sections 3 and 9 of the Income Tax Act. The same statutory provisions had been cited by the Minister in his notification under subsection 165(2). But as the evidence indicated that, prior to the injury, the plaintiff had been an employee of Indofab rather than engaged in carrying on his own business, counsel for the Crown also referred to and relied on subsection 5(1).

Section 3 of the Act requires that there be brought into the computation of the income of a taxpayer for a taxation year:

. . . the aggregate of amounts each of which is the taxpayer’s income for the year . . . from a source inside or outside Canada, including, without restricting the generality of the foregoing, his income for the year from each office, employment, business and property. ...

Under subsection 5(1),

9. (1) Subject to this Part, a taxpayer’s income for a taxation year from an office or employment.is the salary, wages and other remuneration, including gratuities, received oy him in the year.

Under subsection 9(1),

9. (1) Subject to this Part, a taxpayer’s income for a taxation year from a business or property is his profit therefrom for the year.

No case was cited, and I am not aware of any, in which the particular problem raised by this appeal, viz, the liability of a taxpayer for income tax in Canada in respect of special damages awarded for loss of income over a particular period of time resulting from the impairment of his earning capacity by personal injuries, has been decided. I was told by counsel for the plaintiff—without protest by counsel for the defendant—that such amounts have not heretofore been assessed. But whether that is so or not, the point was left open by the majority of the Supreme Court in The Queen v Jennings et al, [1966] SCR 532. There, in the course of discussing the application in this country of the decision of the House of Lords in British Transport Commission v Gourley, Judson. J said at page 544:

For what it is worth. my opinion is that an award of damages for impairment of earning capacity would not be taxable under the Canadian Income Tax Act. To the extent that an award includes an identifiable sum for loss of earnings up to the date of judgment the result might well be different. But I know of no decisions where these issues have been dealt with and until this has been done in proceedings in which the Minister of National Revenue is a party, any expression of opinion must be insecure. Such litigation would have to go through the Board of Tax Appeals or direct to the Exchequer Court with a final appeal, in appropriate cases, to this Court. As matters stand at present this ground alone is perhaps sufficient for the rejection of the principle in Gourley.

The substance of the argument put forward by counsel for the defendant, as I understood it, was that the amount here in question was not damages for the loss of anything of a capital nature but was for loss of income for a particular period of time, that as such it replaced or compensated the plaintiff for income he would have earned and thus it should be brought into his income for tax purposes. He relied in particular on London and Thames Haven Oil Wharves, Ltd v Attwooll, [1967] 2 All ER 124, where an amount recovered for loss of use of a jetty for 380 days during repair following a collision by a ship with it was held to have been properly assessed as income, and Raja's Commercial College v Gian Singh & Co Ltd, [1977] AC 312, where damages recovered for loss of the opportunity to earn a higher rent during a period in which tenants, who had been given notice to quit, overheld were considered to be assessable as income of the landlord.

I do not think the principle of these cases bears on the present situation. They were concerned with elements to be brought into account in computing the profits of businesses or properties where there had been a decrease or shortfall in the revenue, in the first case by damage done to an income-producing asset of the business and in the second by a tortious overholding of an income-producing, property. In each case, the loss had been compensated for by the damages awarded. Here, there was no property in respect of which any loss arose and for any part of the period involved in the calculation of the damages here in question in which it might be concluded that the plaintiff was carrying on his newly-commenced business it cannot, in my view, be affirmed that there was any loss or shortfall of revenue of that business attributable to the tort for which he was compensated since the injuries had been incurred long before the business was commenced. I should add that I also doubt that the plaintiff could properly be regarded as an asset of his own business so as to treat damages recovered for personal injuries occasioned to him as filling a hole or shortfall of the revenue of the business resulting from his injury. In my view, therefore, the amount in question is not assessable in whole or in part as income of the plaintiff's business.

Nor do I think the amount can be regarded as income from employment. It was not salary or wages or a gratuity or other remuneration of employment, and it was not paid or received as such.* [1] It was not earned by working for or serving anyone. And it was not paid or received to induce the plaintiff to work for or serve anyone.! [2]

Moreover, in defining income from employment, the statute is very precise as to what is to be included, but nowhere does it specify that such an amount is to be included as such income.

There remains the question whether the amount is otherwise of an income nature so that it ought to be regarded as income from a source of income within the meaning of section 3. The wording of the judgment describes the amount in terms suggestive of income and calculates it in part on the basis of prospective income that, but for the injury, might have been earned. But the nature of the amount, as I see it, is determined not by that but by the nature of the award itself. What a court awards in personal injury cases is damages to compensate the injured person for the wrong done him. One of the elements frequently involved in such awards is the impairment of the earning capacity of the injured person resulting from his injuries and, in such cases, it is usual to assess the damages in respect thereof in two parts: one consisting of the loss up to the time of the judgment, which can generally be calculated with some approach to accuracy because the relevant events have already occurred; and the other, the loss for the future which can never be better than an informed and reasonable estimate. In both instances, however, they are for the same injury, the same impairment of earning power. There is but one tort and one impairment and, in my opinion, the damages therefor are all of the same nature.

The point is put thus in the 13th edition of McGregor on Damages at page 296:

The only feature which is not actually decided by Gourley’s case is whether these particular damages would themselves be liable to tax, for it was agreed that they would not be. Earl Jowitt alone gave his opinion on the correctness of this, saying that he thought that it was rightly agreed. And indeed it would seem that there is no “source” from which the amount given as damages can be said to come as income, for it represents not so much loss of earnings as the loss of future earning capacity, which is a capital value. Further, no distinction was taken in Gourley’s case between the special damages for loss of earnings up to the time of judgment and the general damages for loss of future earning capacity. This is correct, and it would be fallacious to regard the special damages as taxable on the ground that they are loss of income and the general damages as not taxable on the ground that they are loss of a capital asset. For both are of the same nature, and it is only the accident of the time when the action is heard that will put a particular sum into the one category or the other. If the general damages for loss of future earning capacity are to be regarded as not taxable, then the same should be said in respect of the special damages, which in this case only represent a portion of the general damages for loss of earning capacity in a crystallised form. And indeed the plaintiff has not specifically earned, by working for them, the sums of damages awarded as special.

To the same effect is the reasoning of the High Court of Australia in Graham v Baker (1961-62), 106 CLR 340. The Court (Dixon, CJ and Kitto and Taylor, JJ) said at page 346:

So far the matter has been discussed as if the right of a plaintiff whose earning capacity has been diminished by the defendant’s negligence is concerned with two separate matters, ie loss of wages up to the time of trial and an estimated future loss because of his diminished earning capacity. It is, we think, necessary to point out that this is not so. A plaintiff’s right of action is complete at the time when his injuries are sustained and if it were possible in the ordinary course of things to obtain an assessment of his damages immediately it would be necessary to make an assessment of the probable economic loss which would result from his injuries. But for at least two obvious reasons it has been found convenient to assess an injured plaintiff’s loss by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff’s proved condition at the time of trial, to attempt some assessment of his future loss.

This view was followed by Gibbs, J in Groves v United Pacific Transport Pty Ltd et al, [1965] Qd R 62 at 65:

Although it is usual and convenient in an action for damages for personal injuries to say that an amount is awarded for loss of wages or other earnings, the damages are really awarded for the impairment of the plaintiff's earning capacity that has resulted from his injuries. This is so even if an amount is separately quantified and described as special damages for loss of earnings up to the time of trial. Damages for personal injuries are not rightly described as damages for loss of income.

Adopting, as I do, this view of the nature of the right of the plaintiff to the damages in question and having regard as well to the fact that they were in no sense earned or gained in the pursuit of any calling or trade or from property but arose from the injury done him, I am of the opinion that these damages are not of an income character and that the description of them in the judgment as damages for loss of income and the reasoning applicable thereto do not characterize the amount awarded as income but merely indicate the method by which a portion of the total award, which is of a capital rather than an income nature, was calculated. See The Glenboig Union Fireclay Co, Ltd v Commissioners of Inland Revenue (1922), 12 TC 427, and The Queen v Atkins (supra).

The appeal will be allowed with costs and the reassessment will be referred back to the Minister for reassessment accordingly.