Date: 20000911
Docket: 1999-3246-IT-I
BETWEEN:
ROBERT A. MITCHELL,
Appellant,
AND
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Deputy JudgeWatson, R.,
(Delivered orally from the Bench at Vancouver, B.C., on
Monday, September 11, 2000)
HIS HONOUR: This appeal deals with the 1997 taxation year in
which the Appellant claimed for and was turned down by the
Minister of National Revenue for the GST rebate. As I said
earlier, each case must be decided on its own facts and its own
merits.
As I also mentioned earlier, the burden of proof is on the
Appellant. The Appellant must establish on a balance of
probabilities -- that means probably, not beyond a reasonable
doubt as in some Courts, but on the balance of probabilities --
that the Minister’s decision was ill-founded in fact and in
law.
The only question that is before the Court was in 1997, was
Mr. Mitchell confined for more than six months in an institution
which is similar to a prison. Not a prison, but similar to a
prison. There is ample case law from the Canadian Courts,
including the Federal Court of Appeal that have said more than
once, the law must be given its clear and ordinary meaning of the
words used.
And the question is, has the Appellant here established on the
balance of probabilities that the forensic psychiatric institute
in which he was confined since 1990 was not similar to a
prison.
It does appear to be unfair that some do receive the rebate
and others don’t, but this would be like taking a bus and
putting in your bus fare and finding people getting on by the
back door and going up to the driver of the bus and saying, I
want a refund of my fare because people have got on at the back
without paying. It doesn’t mean that if other people ride
the bus and don’t get paid that you are entitled to ride
the bus and not pay. And it seems very unfair because they get a
free ride and you don’t.
But sometimes we find that life is unfair, there is no doubt
about that. But this Court doesn’t deal with fairness, it
has no jurisdiction to deal with matter of fairness, of does it
make sense or not. This Court has been established under the
Parliament of Canada and been given a jurisdiction to apply the
plain and ordinary meaning of the law.
Section 122.5, paragraph (2) says:
“Persons not eligible individuals, qualified relations
or qualified dependants. Notwithstanding subsection (1), a person
shall be deemed not to be an eligible individual for a taxation
year or a qualified relation or qualified dependant of an
individual for a taxation year where the person...”
paragraph (c),
“is, at the end of the year, confined to a prison or
similar institution and has been so confined for a period of, or
periods, the total of which in the year was more than, 6
months.”
That’s what the Act says.
Taking into consideration all of the circumstances of this
appeal, taking the testimony of the witnesses and the admissions,
I am satisfied that the Appellant has not succeeded in his onus
of establishing on the balance of probabilities that he was
entitled to the GST rebate during the 1997 taxation year.
Accordingly, the appeal is dismissed.
I HEREBY CERTIFY THAT THE FOREGOING
is a true and accurate transcript
of the proceedings herein to the best
of my skill and ability.
____________________________________________
B. Bunnett, Certified Verbatim Reporter
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