Date: 20120419
Docket: A-56-11
Citation: 2012 FCA 121
CORAM: PELLETIER J.A.
GAUTHIER J.A.
STRATAS J.A.
BETWEEN:
MINISTER
OF NATIONAL REVENUE
Appellant
and
REAL
ESTATE COUNCIL OF ALBERTA
Respondent
Heard at Calgary,
Alberta, on April 19,
2012.
Judgment delivered from the Bench at Calgary, Alberta, on April 19, 2012.
REASONS FOR JUDGMENT OF THE COURT BY: STRATAS
J.A.
Date:
20120419
Docket:
A-56-11
Citation:
2012 FCA 121
CORAM: PELLETIER
J.A.
GAUTHIER
J.A.
STRATAS
J.A.
BETWEEN:
MINISTER OF
NATIONAL REVENUE
Appellant
and
REAL ESTATE
COUNCIL OF ALBERTA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Calgary, Alberta, on April 19,
2012)
STRATAS J.A.
[1]
In
this case, the Tax Court judge found that Ms. Beverly Andre-Kopp, a member of
the respondent, was not engaged in an “office” within the meaning of subsection
248(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) and subsection
2(1) of the Canada Pension Plan, R.S.C. 1985, c. C-8: 2011 TCC 5. The
primary basis for this finding was that she was entitled in her position to a per
diem payment but the number of days she worked was not fixed or
ascertainable in advance. She could be paid nothing. Therefore, in the judge’s
view, upon appointment, she was not entitled to receive anything at all (at
paragraph 43).
[2]
Since
the judgment of the Tax Court, this Court has ruled to the contrary in another
case: Canada (Minister of
National Revenue) v. Ontario, 2011 FCA 314. Those
who hold a position and are given a per diem payment are given a “fixed
or ascertainable stipend or remuneration” within the meaning of the
subsections.
[3]
In
this Court, Mr. Ryder for the respondents gamely seeks to distinguish the Ontario case. He
contended that Ontario stands only for the proposition that per
diem payments can be “fixed or ascertainable stipend[s] or remuneration.”
It did not deal with the other requirement found in the definition of “office”
found in the subsections, namely that “the position…[must be one] entitling”
the individual to “stipend or remuneration.” Here, he says, the position does
not entitle Ms. Andre-Kopp to stipend or remuneration because she might not
receive any pay in the year.
[4]
We
do not agree that Ontario did not decide this
point. On its facts, Ontario is on all fours with the case at bar and
this Court upheld the assessments in issue in Ontario.
[5]
Nevertheless,
in our view, the phrase, “the position…[must be one] entitling” the individual
to “stipend or remuneration,” means nothing more than a position for pay: Vachon
Estate v. Canada, 2009 FCA 375 at paragraphs 38-43. Here Ms. Andre-Kopp was
in a position for pay. If there were no tasks for her to perform in a year, she
would not be paid in that year. But that takes nothing away from the fact that
her position was a position for pay.
[6]
As
a fallback position, Mr. Ryder also submitted that Ontario was
“manifestly wrong” and should not be followed: Miller v. Canada (Attorney General), 2002 FCA
370. He did not pursue that submission in detail. We are not convinced that Ontario is
“manifestly wrong.” We consider ourselves bound by it.
[7]
Therefore,
we shall allow the appeal, set aside the judgment of the Tax Court, and restore
the Minister’s assessments for the 2004, 2005, and 2006 taxation years. At the
end of oral argument a dispute arose concerning the Minister’s entitlement to
costs. Following brief oral submissions, we decided that if the parties cannot
reach agreement on the issue of costs, it may be spoken to by way of motion
under rule 369 of the Federal Courts Rules, SOR/98-106.
"David
Stratas"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-56-11
APPEAL
FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE D.W. ROWE DATED JANUARY 5, 2011,
DOCKET NO. 2010-384(CPP)
STYLE OF CAUSE: Minister
of National Revenue v. Real Estate Council of Alberta
PLACE OF HEARING: Calgary,
Alberta
DATE OF HEARING: April 19, 2012
REASONS FOR JUDGMENT OF THE COURT
BY: Pelletier, Gauthier, Stratas JJ.A.
DELIVERED FROM THE BENCH BY: Stratas J.A.
APPEARANCES:
|
Arnold
Bornstein
Thang
Trieu
|
FOR
THE APPELLANT
|
|
Thomas Ryder
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Myles J. Kirvan
Deputy
Attorney General of Canada
|
FOR THE APPELLANT
|
|
Parlee McLaws LLP
Calgary, Alberta
|
FOR THE RESPONDENT
|
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