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Docket: 2004-3151(IT)I
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BETWEEN:
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THELMA FAYLE,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Appeal heard on January 13, 2005, at Victoria,
British Columbia,
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By: The Honourable Justice E.A. Bowie
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Appearances:
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For the Appellant:
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The Appellant herself
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Counsel for the Respondent:
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Raj Grewal
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____________________________________________________________________
JUDGMENT
The
appeal from the reassessment of tax made under the Income Tax
Act for the 2002 taxation year is dismissed.
Signed at Ottawa, Canada, this 20th day of January, 2005.
Bowie J.
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Citation: 2005TCC71
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Date: 20050120
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Docket: 2004-3151(IT)I
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BETWEEN:
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THELMA FAYLE,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
BowieJ.
[1] Following the tragic events of
September 11th, 2001, Ms. Fayle decided to enrol in a course
titled "International Peace Research" that is given at
the University of Oslo in Norway. She now appeals from a
reassessment of her income tax liability for the year 2002
whereby the Minister of National Revenue disallowed her claim to
a tax credit for the fees that she paid to the University. The
entitlement to the tax credit she claims is governed by paragraph
118.5(1)(b) of the Income Tax Act.
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118.5(1) For the purpose of computing the tax
payable under this Part by an individual for a taxation
year, there may be deducted,
(a)
...
(b)
where the individual was during the year a student in
full-time attendance at a university outside Canada in a
course leading to a degree, an amount equal to the product
obtained when the appropriate percentage for the year is
multiplied by the amount of any fees for the
individual's tuition paid in respect of the year to the
university, except any such fees
(i) paid
in respect of a course of less than 13 consecutive weeks
duration,
(ii) paid on
the individual's behalf by the individual's
employer to the extent that the amount of the fees is not
included in computing the individual's income, or
(iii) paid on the
individual's behalf by the employer of the
individual's parent, to the extent that the amount of
the fees is not included in computing the income of the
parent by reason of
subparagraph 6(1)(b)(ix);
...
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118.5.(1) Les montants suivants sont déductibles
dans le calcul de l'impôt payable par un
particulier en vertu de la présente partie pour une
année d'imposition :
a)
[...]
b) si,
au cours de l'année, le particulier
fréquente comme étudiant à plein temps
une université située à
l'étranger, où il suit des cours
conduisant à un diplôme, le produit de la
multiplication du taux de base pour l'année par
le total des frais de scolarité payés
à l'université pour l'année,
à l'exception des frais qui ont
été :
(i) soit
payés pour des cours d'une durée
inférieure à 13 semaines
consécutives,
(ii) soit
payés pour son compte par son employeur, dans la
mesure où ils ne sont pas inclus dans le calcul de
son revenu,
(iii) soit payés
pour son compte par l'employeur de son père ou
de sa mère, dans la mesure où ces frais ne
sont pas inclus dans le calcul du revenu de son père
ou de sa mère par application du sous-alinéa
6(1)b)(ix);
[...]
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[2] There is no disagreement about the
facts. The course in question has been given by the University of
Oslo for more than 50 years. It carries a post-graduate level
credit towards a masters degree. More than 100 students from many
countries enrolled and took the course at the same time that the
Appellant took it. The course is given by the University in two
different forms, and that is wherein lies the Appellant's
difficulty. In one form the course lasts 13 weeks, with some
seven hours per week of classes, for a total of 90 hours. In the
other form it lasts for six weeks, with classes held three hours
per day, five days per week, for a total of 90 hours. The content
of the course is identical in each form. Each form is taught by
the same faculty. The same credit towards a post-graduate degree
is given for successful completion of each form. The tuition cost
for each is the same. There is no question that the Appellant
would have been entitled to the tax credit she seeks had she
taken the 13-week version of the course. However, the Minister
says that she is not entitled to any tax credit because she took
the six-week version. The case is governed, he says, by the
words:
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... except any such fees paid in respect of a
course of less than 13 consecutive weeks duration,
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[...] à l'exception des frais qui ont
été [soit] payés pour des cours
d'une durée inférieure à 13
semaines consécutives,
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[3] In presenting her case, the
Appellant argued that this is a literal but not a wise
interpretation of the Act. I could not agree more.
However, the mandate of this Court, and the appellate courts as
well, is to apply the literal meaning of the words enacted by
Parliament, where that meaning is clear. The Courts may interpret
legislation that is ambiguous, but they may not, in the name of
wisdom or otherwise, stray from the intent of Parliament if it
has been expressed in unambiguous terms.[1] Neither the expression "a course
of less than 13 consecutive weeks duration" in English, nor
"des cours d'une durée inférieure à
13 semaines consécutives" in French, is at all
ambiguous.
[4] It is with considerable regret
that I must dismiss the appeal. The only avenue for relief open
to the Appellant is to seek a remission order under
section 23 of the Financial Administration Act, but
that is a remedy that is outside my jurisdiction.
Signed at Ottawa, Canada, this 20th day of January, 2005.
Bowie J.
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COURT FILE NO.:
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2004-3151(IT)I
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STYLE OF CAUSE:
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Thelma Fayle and Her Majesty the Queen
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PLACE OF HEARING:
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Victoria, British Columbia
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DATE OF HEARING:
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January 13, 2005
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REASONS FOR JUDGMENT BY:
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The Honourable Justice E.A. Bowie
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DATE OF JUDGMENT:
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January 20, 2005
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For the Appellant:
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The Appellant herself
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Counsel for the Respondent:
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Raj Grewal
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For the Respondent:
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John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada
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[1]
Bell
ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R.
559.
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