Boel v. Human Resources, docket 2000-779-OAS

Date: 20010312

Docket: 2000-779-OAS; 2000-780-OAS

BETWEEN:

JOSEPH P. BOEL, JOAN BOEL,

Appellant,

and

THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA,

Respondent.

Reasons for decision and decision

Beaubier, J.T.C.C.

[1]            These appeals were heard together on common evidence by consent of the parties at London, Ontario on March 9, 2001. Joseph P. Boel testified and acted as agent for his wife Joan Boel, the other Appellant.

[2]            Paragraphs 2 to 15 inclusive of the Reply to Notice of Appeal of Joseph P. Boel outline the chronology of the facts in these cases. They read:

2.              On November 29, 1996, the Appellant was awarded a lump sum retroactive benefit (the "Benefit") by the Workers' Compensation Board ("WCB") in the amount of $30,124.62, and received payment thereof in 1997. The Benefit represented monthly payments plus interest from June 16, 1989 to April 1, 1997. WCB benefits of $287.11 continue to be paid to the Appellant on the first of each month.

3.              On December 20, 1996, the Appellant made an application to the Minister for the GIS.

4.              In the Appellant's Statement of Estimated Income and Application for Renewal of the GIS, both dated February 18, 1997, the Appellant did not indicate any entitlement to the Benefit. As a result of his application, the Appellant received the GIS for the April 1997 – March 1998 payment period.

5.              The Appellant's Statement of Estimated Income dated May 7, 1997 included the total amount of the Benefit received in 1997 together with monthly WCB payments of $287.11.

6.              By letter dated July 31, 1997, the Minister advised the Appellant that it was necessary to recalculate his entitlement to GIS since his spouse had applied for and been awarded spouse's allowance.

7.              By letter dated August 14, 1998, the Minister advised the Appellant that the Benefit should have been included in income for the 1997 year and, consequently, his account was overpaid for the April 1997 – March 1998 payment period in the amount of $1535.79.

8.              By undated Notice of Objection and letter dated November 14, 1998, the Appellant objected to the Minister's determination that the Benefit should have been included in income for 1997 for the purpose of determining entitlement to the GIS.

9.              By letter dated March 23, 1999, the Appellant requested a reconsideration of the Minister's determination.

10.            By letter dated April 21, 1999, the Minister confirmed the determination and informed the Appellant that his income for 1997 exceeded the limit for entitlement to the GIS as of April 1998.

11.            By Notice of Appeal dated June 25, 1999, the Appellant appealed the Minister's decision to the Canada Pension Plan – Old Age Security Review Tribunal (the "Review Tribunal") established under section 82 of the Canada Pension Plan Act.

12.            By notice of referral dated February 15, 2000, the Commissioner of the Review Tribunals referred the matter to the Tax Court of Canada since the basis of the Appellant's appeal is that the Minister's decision or determination as to his income for the 1997 calendar year was incorrectly made.

13.            The Minister made the following assumptions in calculating the Appellant's income for the purpose of determining his entitlement to the GIS:

a)              the facts stated above some of which are reported for case of reference;

b)             the 1997 calendar year is the base year of the purpose of determining the Appellant's entitlement to the GIS for the payment period April 1995 – March 1999.

c)              the Appellant's income for the 1997 taxation year was actually $39,695.18.

d)             the Appellant's 1997 exceeds the limit for the GIS. [sic]

B.             ISSUES TO BE DECIDED

14.            The issue is whether the Minister properly included the Benefit in calculating the Appellant's income for the 1997 calendar year for the purpose of determining his entitlement to the GIS for both the 1997 – 1998 and 1998 - 1999 payment periods.

C.             STATUTORY PROVISIONS RELIED ON

15.            He relies on sections 2, 10, 11, 12, 14, 16, 28, and 37 of the Old Age Security Act, R.S.C. 1985, c. O-9, as amended, and the provisions of the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.), as amended.

[3]            Mr. Boel's claim for the Workers' Compensation in question took years to prosecute. As a result, he was finally paid the $30,142.62 after he became 65. The consequence was that the $30,142.62 receipt of income in 1997 affected the amounts of GIS to which he and Mrs. Boel were entitled.

[4]            None of the assumptions in paragraph 13 of the Reply were refuted.

[5]            The $30,142.62 received is income to Mr. Boel in the year of receipt, namely 1997 pursuant to Section 56 of the Income Tax Act.

[6]            Subsection 28(3) of the Old Age Security Act requires that a determination as to income from a source shall be referred to the Tax Court of Canada for decision for the purposes of appeal under the Old Age Security Act.

[7]            The sum of $30,142.62 is income to Joseph P. Boel for 1997 under the Income Tax Act pursuant to paragraph 56(1)(v) of that Act. That is so decided respecting both appeals.

                Signed at Ottawa, Canada, this 12^th day of March, 2001.

"D. W. Beaubier"

J.T.C.C.