Citation: 2011 TCC 320
Date: 20110625
Dockets: 2006-1555(IT)I
2006-1648(IT)I
BETWEEN:
FRANCINE LESSARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Jorré J.
[1]
The appellant is
appealing from her assessments for the 2003 and 2004 taxation years.
[2]
Although the facts of
these cases are unusual, they are not complicated, and there is no real controversy
regarding the facts. The entire controversy is about the consequences of the
facts. The appellant is contesting the inclusion in her income of the amount of
$11,628 in 2003 and the amount of $10,000 in 2004.
[3]
Previously, she had
appealed from her assessment for the 2002 taxation year. That appeal was
dismissed by Justice Lamarre Proulx in Lessard v. The Queen, a decision which
was affirmed by the Federal Court of Appeal.
Leave to appeal was denied by the Supreme Court of Canada.
[4]
On November 5, 2001,
the Régie des rentes du Québec (RRQ) notified the appellant that it had denied the
application for a disability pension that she made on April 16, 2001.
[5]
On October 9, 2002, the
RRQ notified the appellant of its decision concerning her application for
review. The RRQ informed the appellant that, after considering the report of psychiatrist
Dr. Jacques Lesage, it had concluded that the appellant had been disabled since
June 2000, and that a disability pension would be paid accordingly.
[6]
The appellant appealed
this decision before the Tribunal administratif du Québec (Tribunal). Her
contention that she was not disabled within the meaning of the Act
respecting the Québec Pension Plan (AQPP) was accepted. After examining
the evidence, the Tribunal, based on the report of psychiatrist Dr. Lionel
Béliveau, found as follows on November 2, 2004: [translation] "Although the applicant is incapable of
performing her usual employment of Class I senior counsel, the evidence
shows that the applicant is not incapable of carrying on gainful
employment." Consequently, the appellant was not disabled within the
meaning of the AQPP.
[7]
The RRQ paid the
appellant a disability pension in 2003, and until November in 2004, when the
Tribunal rendered its decision. The amounts paid were $11,628 in 2003 and
$10,000 in 2004. The appellant is not disputing that she received these
amounts.
[8]
Neither amount was
repaid before 2005.
[9]
Other than one aspect
that I will deal with below, the appellant's argument is substantially the same
as the argument she made in her 2002 appeal.
[10]
The appellant submits
that the effect of the Tribunal's decision is to set aside the RRQ's decision
to grant a disability pension, with the result that the appellant did not
receive disability benefits. Accordingly, she submits that the amounts of
$11,628 and $10,000 at issue were never income, and cannot be included in her
income.
[11]
I see no relevant
difference between the facts of the cases at bar and the facts set out in the
decision regarding the 2002 year. Moreover, none of the appellant's submissions
have convinced me that a different conclusion should be reached. Consequently,
apart from one aspect that will be discussed below, I accept the analysis
contained in paragraphs 15, 16 and 20 of Justice Lamarre Proulx's decision in Lessard.
[12]
In 2003, and until November
in 2004, the appellant received amounts that were paid as QPP disability
benefits and must be included in her income pursuant to clause 56(1)(a)(i)(B)
of the Income Tax Act (ITA). She had the benefit of these amounts.
[13]
Subparagraph 60(n)(ii)
of the ITA very clearly states what happens where, as here, such an amount must
be repaid. The taxpayer can deduct any amount repaid during the year the
repayment is made.
[14]
There were no
repayments in 2003 or 2004. Consequently, apart from the question that I will
examine below, I would conclude that these appeals must be dismissed.
[15]
One aspect of the
appellant's arguments remains to be examined. These arguments were not
raised in the appeal concerning the 2002 year.
[16]
Noël Saint-Pierre, the
appellant's counsel at the time, filed a Notice of Constitutional Question
dated December 28, 2007. According to the sworn statement of Éric Bernier dated
December 28, 2007, the notice was served on the Attorneys General of the
provinces and territories by fax.
[17]
The appellant relies on
sections 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter),
which provide as follows:
Legal rights
7. Everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
. . .
Equality rights
15. (1) Every individual is equal before and under the
law and has the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
[18]
The appellant's
argument, as I understand it, is that the making of the assessment and the
demand for payment of the income tax on the amounts of approximately $11,628
and $10,000 at issue endanger her health, liberty and security of the person
because it would deprive her of the minimum necessary for her to live on.
[19]
Further, she argues
that it is discriminatory because it would be particularly burdensome for
senior citizens and persons with disabilities.
[20]
The appellant's
arguments are unfounded. Even if I assume that section 7 of the Charter could
apply where the effect of a statute is to deprive someone of the minimum income
necessary for survival,
the appellant has not explained how the taxation of the pension would have such
an effect.
[21]
In fact, I do not see
how the taxation of an amount that the appellant could freely dispose of could,
in and of itself, reduce her income below a certain vital minimum, since the
ITA contains various provisions that have the effect of exempting an
individual's income, below a certain level, from taxation.
[22]
As far as section 15 of
the Charter is concerned, it is important to establish the group to which the
appellant belongs. This group comprises people who, for a time, receive a
pension to which they are not entitled, and who subsequently repay that amount.
It is not persons who suffer a disability, or senior citizens.
[23]
Such a group is not one
of the groups listed in section 15 of the Charter, nor is it a comparable
group. Consequently, section 15 cannot apply.
[24]
With respect to the
2004 taxation year, the appellant also contests the interest assessed on insufficient
instalments. Her contention is that there were no insufficient instalments
because, if the amount received from the RRQ as a disability pension had not
been added to her income, it would not have been necessary to pay instalments.
[25]
Since the Minister of
National Revenue properly added the pension to the appellant's income,
instalments were, necessarily, insufficient.
[26]
For all these reasons,
the appeals are dismissed, without costs.
Signed at Ottawa, Ontario, this
25th day of June 2011.
"Gaston Jorré"
Translation
certified true
on this 16th day
of August 2011
Susan Deichert,
Reviser
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