Date: 20020917
Docket: A-205-01
Ottawa, Ontario, September 17, 2002
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
JULES LALANCETTE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
JUDGMENT
The appeal is dismissed with costs.
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"Alice Desjardins"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020917
Docket: A-205-01
Neutral citation: 2002 FCA 335
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
JULES LALANCETTE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Hearing held at Montréal, Quebec, on September 10, 2002.
Judgment rendered at Ottawa, Ontario, on September 17, 2002.
REASONS FOR JUDGMENT: DESJARDINS J.A.
CONCURRED IN BY: NOËL J.A.
NADON J.A.
Date: 20020917
Docket: A-205-01
Neutral citation: 2002 FCA 335
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
JULES LALANCETTE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] The appellant is objecting to a decision by the Tax Court of Canada (per L. Lamarre Proulx J.T.C.C.) which denied him the right to rely on the deduction mentioned in s. 110(1)(f)(iii) of the Income Tax Act and s. 8900 of the Income Tax Regulations on the ground that he was not employed by an international organization during the time that he worked in Haiti as a police officer on a peace mission under the aegis of the United Nations (UN).
[2] Section 110(1)(f)(iii) of the Act, read in conjunction with s. 248, provides as follows:
| 110. (1) For the purpose of computing the taxable income of a taxpayer for a taxation year, there may be deducted such of the following amounts as are applicable
. . .
|
110. (1) Pour le calcul du revenu imposable d'un contribuable pour une année d'imposition, il peut être déduit celles des sommes suivantes qui sont appropriées :
...
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| (f) any social assistance payment made on the basis of a means, needs or income test and included because of clause 56(1)(a)(I)(A) or paragraph 56(1)(u) in computing the taxpayer's income for the year or any amount that is
...
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f) toute prestation d'assistance sociale payée après examen des ressources, des besoins ou du revenu et incluse en application de la division 56(1)a)(I)(A) ou de l'alinéa 56(1)u) dans le calcul du revenu du contribuable pour l'année ou toute somme dans la mesure où elle a été incluse dans le calcul du revenu du contribuable pour l'année, représentant, selon le cas :
...
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| (iii) income from employment with a prescribed international organization, or
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(iii) un revenu tiré d'un emploi auprès d'une organisation internationale visée par règlement;
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| 248. (1) In this Act,
. . .
"employment" means the position of an individual in the service of some other person (including Her Majesty or a foreign state or sovereign) and "servant" or "employee" means a person holding such a position . . .
(My emphasis.)
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248. (1) Les définitions qui suivent s'appliquent à la présente loi.
...
« emploi » Poste qu'occupe un particulier, au service d'une autre personne (y compris Sa Majesté ou un État ou souverain étrangers); "préposé" ou "employé" s'entend de la personne occupant un tel poste . . .
(non souligné dans l'original.)
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[3] The appellant, a member of the R.C.M.P., who in 1994 was in charge of federal operations in Division C, for Quebec, volunteered to take part in a peace mission undertaken by the UN in Haiti. From March 1995 onwards he was given command of the Port-au-Prince metro division and was responsible for police operations in that sector until September 24, 1995. The tax deduction he is claiming in this Court applies to the 1994 and 1995 taxation years.
[4] It was established that the appellant rendered his services in connection with employment and that the UN is an international organization to which the regulations apply. The only question the trial judge had to decide was as to the body "in the service of" which the appellant was during his stay in Haiti. Who was his employer at the relevant time - the UN or the R.C.M.P.?
[5] The trial judge described at length the details of the peace mission created by the UN in Haiti, the assistance provided by member countries in lending national police for a United Nations police force (see United Nations Mission in Haiti (UNMIH), Notes for the Guidance of UNCIVPOL on Assignment, hereinafter referred to as "the Guide", article 11), the exclusively UN line of command to which the appellant was subject and the duties he was responsible for performing with the interests of the United Nations only in view (article 13 of the Guide), as well as the details of the pay the appellant was to receive during the relevant time. The trial judge's decision is reported at [2001] D.T.C. 352 (in French) and [2001] T.C.J. No. 150 (in English), so fully that I do not have to restate all these facts. However, I would note that the appellant's salary continued to be paid to him by the R.C.M.P. throughout his stay in Haiti. A special indemnity paid by the R.C.M.P., and a per diem allowance by the United Nations, were added to the salary. The years spent in Haiti counted for the appellant's seniority and pension fund. His vacation accumulated in accordance with the usual rules. His uniforms and other equipment were provided by the R.C.M.P., although he had to wear the blue beret and certain other insignia with the UN emblem. Although the appellant enjoyed diplomatic immunity in the same way as the United Nations experts, he remained subject to the disciplinary and legal code of his country of origin (see article 19 of the Guide).
[6] I have come to the conclusion that the trial judge was right to conclude that the appellant had remained "in the service of" the R.C.M.P. and that his pay was not "income from employment with a prescribed international organization".
[7] First, it seems clear that the employment relationship between the R.C.M.P. and the appellant was not severed during the relevant time. Second, though it is true that the UN controlled the appellant's daily activities in accordance with the language of the Guide, the context was such that it was the R.C.M.P. which retained ultimate control over him (see Marc Noël, Contract for Services, Contract of Services - A Tax Perspective and Analysis, Report of Proceedings of the Twenty-Ninth Tax Conference, 1978, Canadian Tax Foundation, 712, at 724; Morren v. Swinton and Pendlebury Borough Council, [1965] 2 All E.R. 349, at 351; Ready Mixed Concrete v. Minister of Pensions, [1968] 1 All E.R. 433, at 442-43). The latter could have brought him home at any time, if it felt the need to do so. The assignment of the appellant to Haiti was only incidental to the position he held with the R.C.M.P. The latter remained his true employer throughout the period of his assignment.
[8] I would dismiss the appeal with costs.
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"Alice Desjardins"
Judge
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I concur.
Marc Noël J.
I concur.
Marc Nadon J.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
FILE: A-205-01
STYLE OF CAUSE: JULES LALANCETTE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 10, 2002
REASONS: Desjardins J.A.
CONCURRED IN BY: Noël J.A.
Nadon J.A.
DATE OF REASONS: September 17, 2002
APPEARANCES:
Jacques Renaud FOR THE APPELLANT
Yvan Brodeur
Marie Bélanger FOR THE RESPONDENT
SOLICITORS OF RECORD:
Renaud, Brodeur FOR THE APPELLANT
Montréal, Quebec
Federal Department of Justice FOR THE RESPONDENT
Montréal, Quebec
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