Macalpine v. Canada (Minister of National Revenue), 2004 FCA 221

Date: 20040607

Docket: A-71-03

Citation: 2004 FCA 221

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

                                                         DONALD MACALPINE

                                                                                                                           Appellant/Applicant

                                                                           and

                                       THE MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                          Heard at Winnipeg, Manitoba, on June 2, 2004.

                                   Judgment delivered at Ottawa, Ontario, on June 7, 2004.

REASONS FOR JUDGMENT BY:                                                                     LÉTOURNEAU J.A.

CONCURRED IN BY:                                                                                                  DÉCARY J.A.

                                                                                                                                 PELLETIER J.A.

Date: 20040607

Docket: A-71-03

Citation: 2004 FCA 221

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

                                                         DONALD MACALPINE

                                                                                                                           Appellant/Applicant

                                                                           and

                                       THE MINISTER OF NATIONAL REVENUE

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

LÉTOURNEAU J.A.

[1]                The applicant challenges a decision of Bowie J.T.C.C. whereby the learned judge ruled that ownership of land in fee simple is not a "timber resource property" within the meaning of subsection 13(21) of the Income Tax Act (Act). The judge came to that conclusion because he was of the view that ownership of land in fee simple is not "a right or licence to cut or remove timber from a limit or area in Canada", as the expression "timber resource property" is defined in the Act.

[2]                Notwithstanding the arguments of Mr. MacAlpine who represented himself at the hearing, we see no reviewable error in the learned judge's interpretation of the law and in its application to the facts of the case.

[3]                There was a discussion in the Tax Court as to the possibility that the applicant's land, on which there is standing timber, might qualify as a timber limit and provide a deduction under schedule 6. The discussion took place in the context of the applicant's statement that he had taken advantage of the Ontario Managed Forest Tax Rebate Program which yields a tax rebate, but, however, does not create a right or a licence. As the judge rightly pointed out, this was not the exemption claimed by the applicant and this was not the issue that was before him.

[4]                Before us, the applicant invoked the Charter in support of his submissions. He complained that he was subject to a treatment different from the more favourable treatment given to large paper or forestry companies operating in the field. I understand the applicant to be relying upon the equality provisions in section 15 of the Charter. According to the state of the law, section 15 has no application in this context as none of the grounds for discrimination, whether therein enumerated or analogous, has been proven. Nor has a prima facie case of illegal discrimination been established.

[5]                The applicant urged upon us in his material to use the Charter to rewrite subsection 13(21) of the Act so as to remedy the injustices and inequities that he claims exist in the taxation system and of which he says he is a victim. While it is true that the Charter has imposed upon the Courts the duty to ensure the conformity and compatibility of the laws of Canada with the Charter, it has not endowed the Courts with the power to rewrite these laws, whether they contravene or not the Charter. In a similar fashion, the Charter is not a licence for Courts or individual judges to discard or ignore at their whim laws validly enacted by Parliament.

[6]                Finally, the applicant complains that the learned Tax Court judge failed to consider Revenue Canada's Interpretation Bulletin, IT-481, dated November 27, 1981, which discusses the tax treatment of "timber resource properties". In a nutshell, the Bulletin states that in determining whether a particular right is a timber resource property, it is necessary to determine whether the right is extendable, renewable or can be substituted for. This exercise calls for an examination of the issuing documents or applicable provincial legislation or provincial practice where the documents and legislation are silent.

[7]                In view of the judge's conclusion that ownership of land in fee simple is not a "right or licence to cut or remove timber", this part of the Bulletin upon which the applicant relies has no application in this case. A review of the transcript of the hearing before the Tax Court shows that the judge was aware of the contents of the Bulletin which was cited and given to him. It is obvious that he considered it, but found it to be of no assistance to the applicant.

[8]                For these reasons, I would dismiss the application for judicial review with costs.

                                                                                                                               "Gilles Létourneau"               

                                                                                                                                                      J.A.

"I agree

Robert Décary J.A."

"I agree

J.D.Denis Pelletier J.A."

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-71-03

STYLE OF CAUSE:                          DONALD MACALPINE v. THE MINISTER OF NATIONAL REVENUE

PLACE OF HEARING:                    Winnipeg, Manitoba

DATE OF HEARING:                      June 2, 2004

REASONS FOR JUDGMENT:       LÉTOURNEAU J.A.     

CONCURRED IN BY:                     DÉCARY J.A.

PELLETIER J.A.

DATED:                                             June 7, 2004

APPEARANCES:

SOLICITORS OF RECORD: