Date: 20050113
Docket: A-575-03
Citation: 2005 FCA 16
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
CLAIRE LACOMBE MORENCY
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
Hearing held at Montréal, Quebec, on January 13, 2005.
Judgment delivered from the bench at Montréal, Quebec, on January 13, 2005.
REASONS FOR JUDGMENT OF THE COURT: NOËL J.A.
Date: 20050113
Docket: A-575-03
Citation: 2005 FCA 16
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
PELLETIER J.A.
BETWEEN:
CLAIRE LACOMBE MORENCY
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on January 13, 2005)
NOËL J.A.
[1] This is an appeal from a decision of the Tax Court of Canada in which Judge François Anger dismissed the appellant's appeal from an assessment made pursuant to the Income Tax Act (the I.T.A.) for the 1998 taxation year.
Background
[2] The appellant has been employed by the Government of Quebec since 1974, and during that period has held various positions in various departments. During the relevant years, the appellant was a member of the Syndicat des Professionnels du Gouvernement du Québec (SPGQ).
[3] On April 9, 1981, the SPGQ filed with the Commission des droits de la personne (the Commission) a complaint on behalf of professional women belonging to six employment groups in the Quebec public service. The reason for the complaint was sexual discrimination based on the fact that, for work of equivalent value, these women were not receiving pay equal to that received by members of comparable employment groups.
[4] On March 25, 1991, the SPGQ withdrew its complaint following the signature of a collective agreement which included salary adjustments. The new pay structure established by the agreement was retroactive to January 1, 1990.
[5] Some complainants, including the appellant, asked that the inquiry continue and formed a corporation known as the "Collectif de la plainte des femmes professionnelles du gouvernement du Québec". These complainants wanted the Commission to rule on the validity of the discrimination complaint initially filed by the SPGQ.
[6] On June 19, 1997, the Commission held that the complaint was valid for the employment group of which the appellant was a member, since the evidence established a predominance of women in this employment group and salary discrimination up to 1990, the date the new collective agreement came into effect.
[7] Under a settlement, the Conseil du Trésor paid the Commission the sum of $1,300,000. This amount was distributed by the Commission to everyone concerned in the complaint who had worked in one of the four employment groups between 1981 and 1989.
[8] The amount paid was distributed according to the number of days for which the persons concerned were at work (that is, working days).
[9] The appellant received a T4A form indicating the amount of $5,284 paid by the Government of Quebec for the 1998 taxation year, an amount which she failed to include in calculating her income for the 1998 taxation year. The Minister of National Revenue made an assessment of the appellant which added this sum to her income.
[10] The appellant appealed this assessment to the Tax Court of Canada, alleging that the amount in question was paid to her to compensate for moral injury she had suffered and that the amount should not be included in calculating her income.
[11] The Tax Court of Canada dismissed the appeal. The gist of the trial judge's reasons are found in the following passage (paragraph 18):
The evidence submitted at the proceedings, particularly the settlement of March 23, 1998, reveals that the Conseil du Trésor, representing the Government of Quebec, is the complainants' employer, including the Appellant. The funds used in the settlement originated in the employer and were paid to the Commission in accordance with the agreement for distribution among the complainants through the Commission and based on a specific pro rata basis, that is, based on the number of working days for every person targeted. Therefore, the Commission paid them for and on behalf of the employer. The compensation received was made possible because the Commission had recognized that the complainants were victims of pay discrimination contrary to articles 10 and 19 of the Charter. In my view, the sum therefore awarded in compensation for pay discrimination, as minimal as that sum may appear relative to the recourse established by the 1990 collective agreement, serve to compensate the loss of wages sustained by the persons affected. There is no evidence in this case that the compensation was paid as remedy for a moral prejudice.
[12] That is the decision a quo.
Analysis and decision
[13] The amount in question will count as income if the payment compensates the appellant for the pay she was entitled to receive but did not receive. It will not count as such if the purpose of the payment was to compensate for the moral injury the appellant claims to have suffered.
[14] The question of why the amount was paid is one of fact. Relying on the evidence before him, Judge Angers determined that in the circumstances it was a compensation for pay.
[15] In our view, this was the only determination the trial judge could make on the evidence that was presented to him. In particular, we have in mind the fact that the two organizations that negotiated the payment, and that therefore knew why it was made, both considered that the amount counted as income, that it was paid for and on behalf of the employer and was distributed in proportion to the days worked, that the Commission's decision mentioned wage discrimination (appeal book, page 36) and that in this case there was no evidence of moral injury.
[16] The appeal will be dismissed with costs.
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"Marc Noël"
J.A.
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Certified true translation
K. Harvey
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-575-03
STYLE OF CAUSE: CLAIRE LACOMBE MORENCY
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATES OF HEARING: January 13, 2005
REASONS FOR JUDGMENT LÉTOURNEAU J.A.
OF THE COURT: NOËL J.A.
PELLETIER J.A.
DELIVERED FROM THE BENCH BY: NOËL J.A.
DATE OF REASONS: January 13, 2005
APPEARANCES:
Daniel Bourgeois FOR THE APPELLANT
Bruno Georgescu
Julie David FOR THE RESPONDENT
Simon-Nicolas Crépin
SOLICITORS OF RECORD:
Montréal, Quebec FOR THE APPELLANT
John Sims FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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