Neutral citation: 2002 FCA 266
CORAM: ISAAC J.A.
HER MAJESTY THE QUEEN
Heard at Fredericton, New Brunswick, on June 13, 2002.
Judgment delivered at Ottawa, Ontario, on June 21, 2002.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: ISAAC J.A.
Neutral citation: 2002 FCA 266
CORAM: ISAAC J.A.
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT
 This is an appeal from a judgment of the Tax Court of Canada allowing Ms. Whitney's appeal against reassessments issued by the Minister of National Revenue under the Income Tax Act (the Act) with respect to her 1996 and 1997 taxation years with costs. The decision is reported at 2001 DTC 423,  2 CTC 2714.
 The issue raised on appeal is whether the Tax Court Judge correctly held that the compensation received by the respondent while unable to work by reason of a work-related injury came within the ambit of paragraphs 56(1)(v) and 110(1)(f) of the Act.
 Paragraph 56(1)(v) requires the inclusion in income of:
compensation received under an employees' or workers' compensation law of Canada or a province in respect of an injury, a disability or death.
une indemnité reçue en vertu d'une loi sur les accidents du travail du Canada ou d'une province à l'égard d'une blessure, d'une invalidité ou d'un décès.
 Paragraph 110(1)(f) permits the deduction in computing taxable income of inter alia, any amount that is:
(ii) compensation received under an employees' or workers' compensation law of Canada or a province in respect of an injury, disability or death, ...
(ii) une indemnité reçue aux termes d'une loi fédérale ou provinciale sur les accidents du travail pour blessure, invalidité ou décès, [...]
 It is common ground that if the compensation does not come within these paragraphs, which in effect exempt such payments from taxation, it is taxable under section 5 of the Act as income from employment.
 The Tax Court Judge found as a fact (paragraph 8 of the reasons) that the compensation in issue was received pursuant to article 27.01 of the collective agreement between the respondent's union and her employer, the Government of New Brunswick. He went on to hold that the compensation was nevertheless received "under" the Workers' Compensation Act of New Brunswick (the Compensation Act) as this word is used in paragraphs 56(1)(v) and 110(1)(f) of the Act.
 In coming to this conclusion, the Tax Court Judge relied on the terms of the collective agreement which by mutual agreement adopt the disability certification process of the Workers' Compensation Board of New Brunswick (now the Workplace Health Safety and Compensation Commission). He said at paragraph 20(a) of his reasons:
I do not think it is necessary to go beyond the plain meaning of the words, as set out above in both French and English. "Under" is a common English word of reasonable elasticity. Where the entitlement to workers' compensation is made by the WCB under the WC Act the receipt of that compensation constitutes a receipt under an employees' or a workers' compensation law of a province. The Province of New Brunswick is an employer within the meaning of the WC Act. All of the procedures for claiming compensation by an injured employee conform to the WC Act, which determines the entitlement and duration of the compensation. The right to be paid compensation by the employer in accordance with article 27 of the collective agreement is entirely dependent upon the direction of the WCB.
 In my respectful view, the decision of the Tax Court Judge cannot be sustained on appeal for the reasons which follow.
 The compensation in issue was paid by the employer and received by the respondent under the collective agreement and pursuant to its terms. That one of these terms required that the work-related injury of the respondent be certified by the Workers' Compensation Board (article 27.01(a) of the collective agreement) does not alter the fact that the compensation was paid and received under the collective agreement and not under the Compensation Act. This is particularly so when regard is had to the fact that as noted by the Tax Court Judge (reasons, paragraph 10), the arrangement under which the Workers' Compensation Board provides the employer with its disability certification process is extra-statutory.
 Indeed, not only was the compensation not paid under the Compensation Act, but the payments were made in a manner that was inconsistent with this Act. Paragraph 38.2 (2.2) of the Compensation Act provides that no compensation can be paid thereunder until there has been an interruption of earnings equivalent to three working days. It is common ground that there was no such interruption in this case. Furthermore, the compensation paid to the respondent amounted to 100% of her regular pay whereas the authority for making such payments under the Compensation Act is limited to 85% of that amount net of taxes (see the definition of "loss of earnings" and "average net earnings" in section 38.1(1) of the Compensation Act).
 It follows that even if I were to ignore the fact that the payments in issue were not made by the Workers' Compensation Board as the Compensation Act contemplates, they also did not meet the terms and conditions according to which compensation could be paid under this Act. That, in my view, precludes a finding that the compensation was paid "under" the Compensation Act.
 Another way of considering the matter is to simply ask what legal recourse would the respondent have in the event that the compensation to which she is entitled ceased being paid without cause or reason? When asked this question, counsel for the respondent reluctantly conceded the obvious, that is that his client would have no recourse under the Compensation Act, her only rights being those which accrue to her under the terms of the collective agreement.
 The absurd result which the Tax Court Judge attributes to the plain application of the Act in this instance (reasons, paragraph 20(c)) is based on a misconception of the object of the relevant provisions. The Tax Court Judge states at paragraph 20(b) of his reasons that "The overall scheme of paragraphs 56(1)(v) and 110(1)(f) is that payments of compensation to injured employees who cannot work are not taxable.".
 The scheme is not so broad. The relevant provisions refer to "... compensation received under [a] ... compensation law ...". This wording, on the face of it, excludes payments made to a disabled worker by an employer under a long-term disability program (see Suchon v. Canada  1 C.T.C. 2094) or under a collective agreement.
 There is no ambiguity in paragraphs 56(1)(v) and 110(1)(f) of the Act. The ambiguity which the Tax Court Judge saw in these provisions is based entirely on Interpretation Bulletin IT-202R2 which in his view reflects the "legally correct position" (reasons, paragraph 21).
 I agree that the Bulletin does raise an ambiguity inasmuch as it appears to contemplate that compensation comes within the relevant provisions even though it is not paid or received under a compensation law. However, the Act itself reflects no such ambiguity and the Bulletin, being a non-statutory document, cannot create an ambiguity where none exists in the relevant provisions of the Act. (Compare Harel v. Deputy Minister of Revenue (Quebec), 77 D.T.C. 5438).
 For these reasons, I would allow the appeal, set aside the judgment of the Tax Court Judge in its entirety and restore the reassessments issued by the Minister of National Revenue with respect to the respondent's 1996 and 1997 taxation years. Because the Minister's Bulletin is at the root of the confusion which led to this litigation, I would award no costs despite the result.
Julius A. Isaac J.A."
J. Edgar Sexton J.A."