[OFFICIAL ENGLISH TRANSLATION]
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Reference: 2004TCC436
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Date: 20040628
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Docket: 2003-2154(EI)
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BETWEEN:
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CHARLOTTE GROLEAU,
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Appellant,
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And
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THE MINISTER OF NATIONAL REVENUE,
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Respondent.
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REASONS FOR JUDGMENT
Savoie D.J.
[1] This appeal was heard at
Montréal, Quebec, on March 24, 2004.
[2] This is an appeal in respect of
the insurability of the sum of $10,000 paid to the Appellant at
the time she was hired by Corporation de Tissus Classique, the
Payor, as an incentive to return to work.
[3] On March 21, 2003, the Minister of
National Revenue (the "Minister") informed the Appellant of his
decision whereby the sum of $10,000 was included in her insurable
earnings for the following reason:
[Translation]
[...] You were employed by Corporation de Tissus
Classique/Classic Fabrics Corp., and, with respect to this
employment, any amount you received and from which you benefited,
which was paid by your employer, is included in your insurable
earnings, as set out in subsection 2(1) of the Insurable
Earnings and Collection of Premiums Regulations.
[4] In making his decision, the
Minister relied on the following presumptions of fact:
a) The Payor
operates a business through which it imports fabrics for clothing
manufacturers. (admitted)
b) Prior to
the period at issue, the Appellant had worked in similar
businesses for 20 years. (admitted with additional details)
c) Following
the death of her spouse, the Appellant stopped working, but the
Payor wanted to obtain her services. (admitted)
d) The Payor
offered a bonus of $10,000 at the time of hiring as an incentive
to return to work. (admitted)
e) The
Appellant's main duties consisted of assisting the Payor's
manager, performing office work, and dealing with the Payor's
clients. (admitted with additional details)
f)
During the period at issue, the Appellant rendered services to
the Payor under a contract of service, for three days or 25 hours
per week. (admitted)
g) The
Appellant received from the Payor, at the beginning of her
employment in 2001, a sum of $10,000 in one payment.
(admitted with additional details)
h) The
Appellant described the sum received from the Payor as a "welcome
bonus." (admitted)
i) In
2001, the Appellant received insurable remuneration from the
Payor totalling $30,712, including the $10,000. (admitted
with additional details)
[5] In her testimony during this
appeal hearing, the Appellant stated that one of the businesses
she had worked at for 20 years belonged to the Payor. In addition
to the duties she performed for the Payor, as acknowledged by the
Minister, she also assisted the controller, Mark Tobin. She
specified that she received a net amount of only $6,829.25 from
the $10,000 paid to her by the employer in 2001; she wanted to
specify that her insurable earnings for 2001 was not $30,712, but
$20,678.83 as specified in the payroll record filed as Exhibit
A-2.
[6] The Court's only duty is to
determine whether the sum of $10,000 received by the Appellant in
2001 is an insurable amount.
[7] Parliament has provided a way to
resolve this issue. It has prescribed the following at
paragraph 2(1)(a) of the Insurable Earnings and
Collection of Premiums Regulations(the "Regulations"):
2. (1) For the purposes of the definition "insurable
earnings" in subsection 2(1) of the Act and for the purposes
of these Regulations, the total amount of earnings that an
insured person has from insurable employment is
(a) the total of all amounts, whether wholly or partly
pecuniary, received or enjoyed by the insured person that are
paid to the person by the person's employer in respect of
that employment,
[8] The issue here is the
interpretation of the expression "in respect of"[1] in the wording of this
paragraph.
[9] According to the Oxford Canadian
Dictionary, "in respect of" means:
1. as
concerns;
2. with
reference to.
[10] The Appellant maintained that the
$10,000 was not insurable because it was a "welcome bonus," not a
salary.
[11] To further define the issue, it must be
determined whether the scope of the expression is broad enough to
include or incorporate the sum paid to the Appellant "in respect
of that employment."
[12] It is my opinion that the definition
given in the Oxford[2] supports the conclusion that the Minister correctly
interpreted the meaning and scope of this expression.
[13] The Appellant had the burden of proving
the falsity of the Minister's presumptions and his erroneous
interpretation of paragraph 2(1)(a) of the Regulations on
which he relied.
[14] The evidence presented by the Appellant
did not demonstrate that the Minister had interpreted the meaning
and scope of the expression incorrectly. It was the
responsibility of the Appellant to demonstrate that, on the
balance of probabilities, the Minister's decision was not
well-founded. She did not do so.
[15] The Appellant also maintained that,
upon her request, the Canada Customs and Revenue Agency provided
her with an opinion in which it said that the $10,000 was not
insurable. Counsel for the Minister responded to this
argument by saying that, where the Appellant received this
information from the Agency, the information was wrong, and,
consequently, it is not binding on the Minister or this
Court. Counsel relied on Kennedy v. Canada,
[2001] T.C.J. 486, in which Bowie J. of this Court expressed the
following:
Finally, the Appellant advanced an argument to the effect that
the annuity payments received by her are said by the guide to
qualify her for the pension credit. It was not made clear to me
whether the guide in question was one issued by the Minister of
National Revenue or by some private service. Nor was it clear to
me how that guide (which is in extract Exhibit A-4) would lead
one to the conclusion that the Appellant suggested it had led her
to. Putting this argument at its highest, I am prepared to assume
that the Minister's officials in fact advised the Appellant
through this document, that her pension income entitled her to
the credit that she claims. Such advice, if given, would have
been patently wrong, but erroneous advice whether it comes from
officials of the Minister, the Minister himself, or some private
source, simply cannot change the law as written by Parliament and
raise an entitlement to tax credits which in reality is not found
in the words of the Act. See: M.N.R. v. Inland
Industries Limited, [[1974] S.C.R. 514, pages 523 and 524 (72
D.T.C. 6013, page 6017)].
[16] The Appellant did not discharge the
burden of proof upon her, nor did she succeed in demonstrating
the appropriateness of an intervention by this Court.
[17] Accordingly, this Court must conclude
that the sum of $10,000 received by the Appellant and paid by the
Payor was a part of her insurable earnings for 2001.
Therefore, the Appellant received insurable earnings totalling
$30,712, including the $10,000 bonus, from the Payor in 2001.
[18] For these reasons, the appeal is
dismissed, and the decision of the Minister is confirmed.
Signed at Grand-Barachois, New Brunswick, this 28th
day of June 2004.
Savoie D.J.
Certified true translation
Colette Dupuis-Beaulne
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