Date: 20121126
Dockets: A-346-11
A-347-11
Citation: 2012 FCA 311
CORAM: NOËL
J.A.
GAUTHIER
J.A.
MAINVILLE
J.A.
BETWEEN:
FRANCINE LESSARD
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
Ms. Lessard
is appealing the decision of Justice Jorré of the Tax Court of Canada (2011 TCC 320)
dismissing her appeals of the assessments made under the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.) (the Act) for her 2003 (A-346-11) and 2004 (A‑347‑11)
taxation years.
[2]
These
appeals were consolidated by an order of this Court dated December 7,
2011. In accordance with that order, these reasons will be filed in file No. A‑346-11
and a copy hereof will be filed in file No. A‑347‑11.
[3]
The
appellant submits that the denial of her request for an adjournment presented
at the beginning of the hearing before the TCC on April 18, 2011, violates
her right to representation by counsel and constitutes a breach of the rules of
fairness and natural justice. According to her, the judge also committed many
errors of law in rejecting her arguments and committed palpable and overriding
errors in his assessment of the relevant facts.
[4]
Despite
our sympathy for Ms. Lessard, who is self-represented, I cannot find any
error warranting this Court’s intervention.
[5]
In
the very particular circumstances of these appeals to the TCC, the refusal to
adjourn the hearing yet again (five last-minute adjournment requests had
already been granted) was justified. This is all the more evident when one
considers that Ms. Lessard confirmed during the hearing before us that she
had still not been able to secure the services of counsel to represent her.
[6]
The
appellant’s principal argument is based on the fact that her entitlement to the
amounts taxed in 2003 and 2004 was revoked by a judgment rendered on
November 2, 2004, by the Tribunal administratif du Québec (TAQ). She submits that, under the civil law, that
judgment has retroactive effect, and that the disability pension that had been
paid to her therefore never constituted income in her hands.
[7]
While
it is true that the civil law serves as suppletive law, this is subject to
Parliament’s right to adopt provisions providing otherwise (see section 8.1
of the Interpretation Act, R.S.C. 1985, c. I-21, as amended).
[8]
In
this respect, the Act provides that tax is computed on a yearly basis
(section 3). Moreover, the amounts to be included in income for the year listed
in paragraph 56(1)(a) are paired with the deduction provided for in
subparagraph 60(n)(ii) which allows a taxpayer to give effect to a
change in the tax status of an amount received during the year (or a preceding
year) and to cancel the effects of that amount by repaying it.
[9]
With
respect to the 2003 taxation year, the amounts paid out to Ms. Lessard
retained their pension status throughout the year because the TAQ judgment was
not rendered until November 2004. As for the 2004 taxation year, the amounts
received by the appellant from January to November were pension amounts at the
time of receipt, and it was open to the appellant to give effect to the change
in status of the amounts paid out by repaying them before the end of her taxation
year, which she did not do.
[10]
As a
result, Ms. Lessard had the use of the amounts paid out to her as pension benefits
during her 2003 and 2004 taxation years, which explains why she is liable for
the taxes resulting from the receipt of those amounts.
[11]
There
is therefore no reason to depart from this Court’s decision in Lessard v.
Canada, 2007 FCA 9 (leave to appeal refused by the Supreme Court
of Canada, June 7, 2007, File No. 31942). In my view, Justice Jorré rightly
rejected Ms. Lessard’s main argument.
[12]
In
her Notice of Constitutional Question with respect to the 2003 and 2004
taxation years, the appellant indicates that the combined effect of
paragraph 56(1)(a) and subparagraph 60(n)(ii) violates her constitutional rights because,
in this case, it requires her to pay more taxes, given that her income once she
began repaying the amounts received from the Régie des rentes du Québec (RRQ) was lower than it had been
during the years she was receiving them. According to her, these additional taxes
threaten her survival and dignity contrary to section 7 of the Canadian
Charter of Rights and Freedoms (the Charter). She also asserts that the
provisions constitute discrimination within the meaning of section 15 of
the Charter against the elderly or the disabled.
[13]
In
January 2003, Ms. Lessard had already commenced proceedings before the TAQ
for the reversal of the RRQ decision of October 9, 2002, granting her
claim for a disability pension. As I have already stated, the appellant opted
not to repay the benefits and thereby cancel the inclusion in income of the
amounts paid out to her, even though it was open to her to do so in order to be
consistent with her position that she was not entitled to the benefits in
question.
[14]
In
light of the facts of these cases, I am of the view that the constitutional
questions raised by the appellant are groundless.
[15]
In
the circumstances, the appeal should therefore be dismissed without costs.
“Johanne Gauthier”
“I concur,
Marc
Noël J.A.”
“I concur,
Robert
M. Mainville J.A.”
Certified true translation
Erich Klein
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKETS: A-346-11
A-347-11
APPEAL FROM A JUDGMENT BY JUSTICE GASTON JORRÉ OF THE TAX COURT OF CANADA,
DATED JUNE 25, 2011, IN FILES 2006‑1555(IT)I AND 2006-1648(IT)I.
STYLE OF CAUSE: FRANCINE
LESSARD v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 22, 2012
REASONS FOR
JUDGMENT BY: GAUTHIER J.A.
CONCURRED IN BY: NOËL J.A.
MAINVILLE
J.A.
DATED: November 26, 2012
APPEARANCES:
|
Francine Lessard
|
FOR THE APPELLANT
(on her own behalf)
|
|
Gabriel Girouard
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
N/A
|
FOR THE
APPELLANT
(on her own
behalf)
|
|
William F. Pentney
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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