S
obier,
T.C.J.:—The
appellant
appeals
from
the
confirmation
by
the
Minis-
ter
of
National
Revenue
(the
"
Minister")
of
the
Minister's
reassessment
whereby
he
included
in
the
appellant's
income
for
the
1987
taxation
year
an
amount
received
under
a
settlement
with
the
appellant's
employer.
The
appellant
claimed
that
he
was
laid
off
by
the
employer
under
circumstances
amounting
to
discrimination
and
complained
to
the
Ontario
Human
Rights
Commission
(the
"Commission")
under
the
Ontario
Human
Rights
Code
(the"Code").
A
formal
complaint
was
filed
by
the
appellant
which
was
responded
to
by
his
employer.
Mr.
Glen
E.
Morrison,
an
employee
of
the
Commission
was
directed
to
investigate
the
complaint.
After
a
fact-finding
meeting
with
Mr.
Morrison
was
held
where
all
the
parties
were
represented,
the
names
of
witnesses
were
obtained
and
they
were
interviewed.
As
a
result,
Mr.
Morrison
issued
an
analysis
of
investigation
findings.
Mr.
Morrison
gave
evidence
that
if
no
settlement
was
achieved
the
matter
would
go
to
the
Commission
to
determine
whether
a
Board
of
Inquiry
should
be
convened
to
hear
the
complaint.
The
employer
made
an
offer
of
settlement
and
under
the
auspices
of
the
Commission
and
its
representatives
a
settlement
was
reached.
Under
the
settlement,
the
appellant
received
the
sum
of
$5,000
from
the
employer.
Mr.
Morrison
made
it
quite
clear
that
there
was
no
finding
of
discrimination
by
the
Commission
nor
did
the
Commission
make
an
award
since
only
a
Board
of
Inquiry
could
make
such
a
finding
and
make
an
award.
Although
the
Commission
employees
were
involved
in
the
negotiations,
Mr.
Morrison
characterized
the
settlement
as
one
made
between
the
employer
and
the
employee.
In
his
report
to
his
superior,
Mr.
Morrison
found
that
the
appellant
could
not
substantiate
claims
for
general
damages
for
mental
trauma
or
embarrassment
resulting
from
his
lost
employment.
In
his
report,
Mr.
Morrison
stated:
Mr.
Niles
claims
as
damages
the
amount
of
his
per
hour
wage
from
the
date
of
termination
February
10,
1984
to
the
date
he
commenced
a
manpower
re
training
course
September
2nd,
1984.
His
hourly
rate
at
termination
was
$9.60
per
hour
for
a
40
hour
week.
I.E.
$9.60
x
40
x
$384.00
x
27
=
$10,368.00.
Mr.
Niles
received
from
the
Unemployment
Insurance
Commission
between
the
lay
off
to
starting
the
re
training
course
$5,684.00.
$10,368.00
—
$5,684.00
=
$4,684.00
+
335.00
as
interest.
General
Damages
Mr.
Niles
requested
$3,000.00
as
general
damages
but
this
could
not
be
supported
by
documentation.
The
parties
agreed
to
settle
for
$5,000.00.
This
memorandum
was
reviewed
by
a
panel
of
the
Commission.
Mr.
Morrison's
superior
endorsed
the
memorandum
as
follows:
Panel.
The
$5,000
settlement
constituted
los[t]
wages
and
some
payment
for
general
damages
was
not
negotiated
in
preference
to
resolving
the
complaint.
The
memorandum
and
endorsement
are
the
only
evidence
before
the
Court
as
to
the
characterization
of
the
payment
of
the
$5,000.
Unfortunately,
due
to
work-related
circumstances,
the
appellant
was
not
available
to
give
evidence.
The
issue
in
this
appeal
is
whether
the
payment
of
the
settlement
amount
was
a
payment
of
a
retiring
allowance
and
therefore
to
be
included
in
computing
income
under
subparagraph
56(1)(a)(ii).
Subparagraph
56(1)(a)(ii)
states
as
follows:
56.
(1)
Without
restricting
the
generality
of
section
3,
there
shall
be
included
in
computing
the
income
of
a
taxpayer
for
a
taxation
year,
(a)
any
amount
received
by
the
taxpayer
in
the
year
as,
on
account
or
in
lieu
of
payment
of,
or
in
satisfaction
of,
(ii)
a
retiring
allowance,
other
than
an
amount
received
out
of
or
under
an
employee
benefit
plan,
a
retirement
compensation
arrangement
or
a
salary
deferral
arrangement,
“Retiring
allowance”
is
defined
in
subsection
248(1)
as
follows:
“retiring
allowance”
means
an
amount
(other
than
a
superannuation
or
pension
benefit
or
an
amount
received
a
consequence
of
the
death
of
an
employee)
received
(a)
upon
or
after
retirement
of
a
taxpayer
from
an
office
or
employment
in
recognition
of
his
long
service,
or
(b)
in
respect
of
a
loss
of
an
office
or
employment
of
a
taxpayer,
whether
or
not
received
as,
on
account
or
in
lieu
of
payment
of,
damages
or
pursuant
to
an
order
or
judgment
of
a
competent
tribunal
by
the
taxpayer
or,
after
his
death,
by
a
dependant
or
a
relation
of
the
taxpayer
or
by
the
legal
representative
of
the
taxpayer;
Counsel
for
the
appellant
urged
that
the
settlement
should
not
be
included
under
subparagraph
56(1)(a)(ii)
and
cites
as
authority
Piazza
v.
Airport
Taxicab
(Malton)
Associates
(1989),
60
D.L.R.
(4th)
759
(Ont.
C.A.).
However,
what
the
Court
decided
there
was
that
compensation
ordered
for
a
breach
of
subsection
4(1)
of
the
Code
is
not
the
same
as
damages
for
wrongful
dismissal.
With
this
the
Court
agrees
but
the
payment
in
question
here
was
not
compensation
ordered
for
breach
of
the
Code
but
payment
of
a
settlement
reached
between
the
employer
and
the
employee.
The
appellant
cannot
argue
by
analogy
that
a
Human
Rights
award
should
be
treated
the
same
as
a
crime
compensation
award
which
the
Minister
has
regarded
as
non-taxable.
Again
what
is
dealt
with
there
is
an
award
whereas
here
we
are
dealing
with
a
settlement.
The
payment
was
neither
an
award
nor
damages,
it
was
payment
of
the
settlement
of
a
complaint.
Although
the
method
of
calculating
the
amount
of
the
settlement
was
based
on
the
appellant's
hourly
rate
of
pay
and
the
number
of
weeks
between
his
layoff
and
the
time
of
commencing
his
retraining,
this
in
itself
is
not
necessarily
the
sole
method
of
determining
the
nature
of
the
payment.
However,
all
other
factors
point
to
this
payment
being
one
made
as
a
result
of
loss
of
employment.
That
he
was
laid
off
does
not
alter
the
fact
that
there
was
loss
of
employment.
The
payment
was
by
way
of
compensation
for
los[t]
wages
which
resulted
from
a
loss
of
employment.
Returning
to
the
question
of
the
meaning
of"
retiring
allowance”,
it
is
clear
that
it
is
an
amount
received
in
respect
of
loss
of
employment
of
the
taxpayer
whether
or
not
received
as
on
account
or
in
lieu
of
payment
of
damages
or
pursuant
to
an
order
or
judgment.
In
interpreting
the
words
“in
respect
of",
the
Court
was
referred
to
The
Queen
v.
Savage,
[1983]
C.T.C.
393;
83
D.T.C.
5409
(S.C.C.).
There
at
399
(D.T.C.
5414)
Dickson,
J.,
as
he
then
was,
cited
Nowegijick
v.
The
Queen,
[1983]
C.T.C.
20;
83
D.T.C.
5041
(S.C.C.)
where
the
Court
dealt
with
those
words
as
follows:
The
words
“in
respect
of”
are,
in
my
opinion,
words
of
the
widest
possible
scope.
They
import
such
meanings
as
"in
relation
to”,
"with
reference
to"
or
"in
connection
with".
The
phrase
"in
respect
of"
is
probably
the
widest
of
any
expression
intended
to
convey
some
connection
between
two
related
subject
matters.
The
use
of
those
words
surely
conveys
a
connection
between
the
amount
received
and
the
loss
of
the
appellant's
employment.
In
Alexander
v.
M.N.R.,
[1973]
C.T.C.
405;
73
D.T.C.
5321
(F.C.T.D.),
there
was
no
action
for
wrongful
dismissal
but
there
was
an
agreement
to
pay
the
appellant
$30,000
for
his
resignation
and
a
release
of
the
employer.
The
Court
held
that
this
payment
was
a
retiring
allowance
even
though
there
was
no
wrongful
dismissal.
All
of
the
other
cases
cited
including
Young
v.
M.N.R.,
[1986]
2
C.T.C.
2111
;
86
D.T.C.
1567
(T.C.C.),
(damages
for
mental
distress
as
a
result
of
wrongful
dismissal),
the
payments
were
all
held
to
be
retiring
allowance
or
termination
payments
and
therefore
taxable.
There
is
no
doubt
but
that
the
settlement
payment
was
made
because
of
the
employee's
loss
of
employment.
It
makes
no
matter
why
he
was
laid
off
whether
for
breach
of
contract
or
because
of
an
alleged
discrimination.
He
received
the
amount
to
settle
his
claim
against
the
employer
for
loss
of
employment.
There
was
no
finding
of
discrimination
nor
was
there
an
award
which
might
have
altered
the
character
of
the
payment.
The
settlement
was
based
on
lost
wages
and
determined
in
that
fashion.
For
the
above
reasons,
the
appeal
is
dismissed.
Appeal
dismissed.
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