Urie
D.J.T.C.C.:—
The
appellant
appeals
from
the
Notification
of
Confirmation
by
the
Minister
of
National
Revenue
(“the
Minister”)
dated
November
12,
1993
of
the
Notice
of
Assessment
whereby,
inter
alia,
the
appellant’s
contribution
to
her
1992
Registered
Retirement
Savings
Plan
(“RRSP”)
was
limited
to
$1,000.
A.
THE
RELEVANT
FACTS
The
appellant
is
a
Justice
of
the
Court
of
Queen’s
Bench
of
Alberta
having
been
appointed
as
such
by
the
Government
of
Canada
in
November
of
1986.
She
was
39
years
of
age
at
the
time
of
her
appointment,
had
been
a
member
of
the
Alberta
Bar
for
15
years
and
was
the
mother
of
three
children
under
the
age
of
ten
years.
Notice
of
her
appointment
had
been
conveyed
orally
to
her
on
November
8,
1986
by
the
then
Minister
of
Justice.
Two
days
prior
to
that
day
she
had
received
a
telephone
call
from
a
ministerial
aide
who,
she
testified,
among
other
things
had
apprised
her
of
the
judicial
annuity
to
which
by
virtue
of
the
Judges
Act
she,
as
a
federally
appointed
Justice,
would
be
entitled
on
retirement
after
15
years
of
service
and
attaining
the
age
of
65
years.
For
this
benefit
she
would
be
required
to
contribute
seven
per
cent
of
her
annual
salary.
She
was
entitled
also,
he
said,
to
make
full
contributions
to
her
RRSP
annually.
At
the
time
of
her
appointment
the
appellant
had
approximately
$63,000
invested
in
her
RRSP.
In
computing
her
income
for
the
1992
taxation
year
she
deducted
RRSP
contributions
in
the
sum
of
$1,100.
The
Minister
assessed
the
appellant
for
the
year
by
Notice
of
Assessment
dated
May
31,
1993
and
reduced
the
deduction
for
RRSP
premium
contributions
from
$1,100
to
$1,000.
In
his
Reply
to
the
Notice
of
Appeal
the
Minister
says
that
he
made
the
following
assumptions
in
making
his
assessment:
—
(a)
the
appellant
was
a
Justice
of
the
Court
of
Queen’s
Bench
of
Alberta
during
1991
and
1992;
(b)
the
appellant
made
a
premium
contribution
to
an
RRSP
in
the
amount
of
$1,100
during
1992;
(c)
the
appellant
received
a
salary
in
excess
of
$70,000
in
1991
from
her
office
as
a
Judge;
(d)
the
Money
Purchase
Limit
for
1991
was
$12,500;
(e)
the
amount
prescribed
by
subsection
8309(2)
of
the
Regulations
in
respect
of
the
appellant
for
calculating
her
RRSP
deduction
limit
for
1992
is
$11,500
which
is
calculated
as
follows:
Lesser
of:
|
(a)
|
18%
X
1991
salary
|
in
excess
of
|
|
|
Received
as
a
Judge:
|
$12,500.00
|
|
|
$12,500.00
|
$12,500.00
|
|
Minus:
|
|
|
$1,000.00
|
|
$
1,000.00
|
|
$1,000.00
|
|
|
Prescribed
Amount
|
|
$11,500.00
|
|
Prescribed
Amount
|
|
|
(f)
the
appellant
had
no
unused
RRSP
deduction
at
the
end
of
1991
;
|
|
|
(g)
The
appellant’s
1991
earned
income
was
in
excess
of
$70,000;
|
|
|
(h)
the
appellant
had
no
net
past
service
adjustment
for
1992;
|
|
(i)
in
calculating
her
income
for
1992
the
appellant
could
only
deduct
RRSP
premium
contributions
pursuant
to
paragraph
60(i)
and
subsection
146(5)
of
the
Income
Tax
Act,
R.S.C.
1985
(5th
Supp.),
c.
1
(the
“Act”)
to
the
extent
that
the
contribution
did
not
exceed
the
appellant’s
RRSP
deduction
limit
for
that
year;
(j)
the
appellant’s
RRSP
deduction
limit
for
1992
was
$
1,000
which
is
calculated
pursuant
to
paragraph
146(l)(g.
1)
of
the
Act
as
follows:
It
is
from
the
confirmation
of
the
Notice
of
Assessment
following
the
appellant’s
filing
of
her
Notice
of
Objection
that
this
Appeal
has
been
brought.
|
1991
Unused
RRSP
Deduction
Room
|
|
$0.00
|
|
Plus
the
Lesser
of:
|
|
|
a)
|
RRSP
Dollar
Limit
for
1992
|
$12,500.00
|
|
|
b)
|
18%
of
1991
Earned
Income
|
In
excess
of
|
|
|
$12,500.00
|
$12,500.00
|
|
Minus
1992
Prescribed
Amount
|
|
$11,500.00
|
|
Difference
|
|
$
1,000.00
|
|
Subtotal
|
|
$
1,000.00
|
|
Minus
Net
Past
Service
Pension
Adjustment
for
1992
|
$
|
0.00
|
|
1992
RRSP
Deduction
Limited
|
|
$
1,000.00
|
B.
THE
ISSUES
While
the
appellant
in
her
Notice
of
Appeal
set
out
five
issues
to
be
determined
and
the
Minister
joined
issue
thereon,
the
Appeal
was
argued
by
both
sides
only
on
the
following
four
issues.
1.
Is
Regulation
8309(2)
ultra
vires
the
Governor
in
Council
by
exceeding
the
authority
granted
to
the
Governor
in
Council
to
make
Regulations
under
subsection
221(1)?
2.
Is
Regulation
8309(2)
ultra
vires
the
Governor
in
Council
as
being
contrary
to
the
common
law
jurisprudence
which
states
that
the
imposition
of
taxation
must
be
by
statutory
authority
and
not
by
delegated
authority?
3.
Is
Regulation
8309(2)
ultra
vires
the
Governor
in
Council
by
virtue
of
being
contrary
to
section
100
of
the
Constitution
Act,
1867
which
provides
that
“the
salaries,
allowances
and
pensions
of
the
Judges
of
the
Superior...Courts...shall
be
fixed
and
provided
by
the
Parliament
of
Canada”?
4.
If
Regulation
8309(2)
is
validly
enacted,
which
is
not
admitted
but
which
is
expressly
denied,
is
the
interpretation
of
regulation
8309(2)
as
applied
to
paragraph
146(l)(g.
1)
ambiguous
and
if
so,
should
this
ambiguity
be
resolved
in
favour
of
the
interpretation
which
favours
the
appellant?
C.
PRIOR
TO
1991
While
I
am
unable
to
ascertain
from
the
record
what
the
particular
tax
situation
was
during
that
period,
as
a
retired
Judge
who
was
in
receipt
of
a
judicial
salary
and
other
benefits
during
the
period
from
1973
to
the
end
of
1990,
1
think
that
I
am
entitled
to
take
judicial
notice
of
the
fact
that
the
Taxation
Division
of
the
Department
of
National
Revenue
from
at
least
1979
on
had
taken
the
position
that:
—
(a)
amounts
contributed
by
a
federally
appointed
Judge
to
the
pension
plan
under
the
Judges
Act
were
deemed
to
be
contributions
to
a
registered
pension
fund
and
thus
properly
deductible
in
the
computation
of
the
judge’s
taxable
income,
and
(b)
contributions
to
his
RRSP
up
to
a
specified
maximum,
with
no
deductions
for
amounts
contributed
to
his
pension
plan,
could
also
be
deducted
in
the
computation
of
his
taxable
income.
This
was
the
policy
which
was
in
force
at
the
date
of
the
appellant’s
appointment
and,
I
assume,
was
the
basis
for
the
assertion
made
by
the
ministerial
aide
when
speaking
with
her
a
couple
of
days
prior
to
her
appointment,
as
referred
to
earlier
herein,
that
she
would
be
entitled
to
make
full
contributions
to
her
RRSP.
D.
SUBSEQUENT
TO
1991
The
statutory
and
regulatory
provisions
relevant
to
this
period
and
consequently
to
the
disposition
of
this
Appeal
are
the
following:
Subsection
221(1)
of
the
Income
Tax
Act
reads
as
follows:
—
221(1)
Regulations.
-
The
Governor
in
Council
may
make
regulations.
(a)
prescribing
anything
that,
by
this
Act,
is
to
be
prescribed
or
is
to
be
determined
or
regulated
by
regulation,
(b)
prescribing
the
evidence
required
to
establish
facts
relevant
to
assessments
under
this
Act,
(c)
to
facilitate
the
assessment
of
tax
where
deductions
or
exemptions
of
a
taxpayer
have
changed
in
a
taxation
year,
(d)
requiring
any
class
of
persons
to
make
information
returns
respecting
any
class
of
information
required
in
connection
with
assessments
under
this
Act,
(d.
1
)
requiring
any
person
to
provide
any
information
including
his
name,
address
and
Social
Insurance
Number
to
any
class
of
persons
required
to
make
an
information
return
containing
such
information,
(e)
requiring
a
person
who
is,
by
a
regulation
made
under
paragraph
(d),
required
to
make
an
information
return
to
supply
a
copy
of
the
information
return
or
of
a
prescribed
part
thereof
to
the
person
to
whom
the
information
return
or
part
thereof
relates,
(f)
authorizing
a
designated
officer
or
class
of
officers
to
exercise
powers
or
perform
duties
of
the
Minister
under
this
Act,
(g)
providing
for
the
retention
by
way
of
deduction
or
set
off
of
the
amount
of
a
taxpayer’s
income
tax
or
other
indebtedness
under
this
Act
out
of
any
amount
or
amounts
that
may
be
or
become
payable
by
Her
Majesty
to
him
in
respect
of
salary
or
wages,
(h)
defining
the
classes
of
persons
who
may
be
regarded
as
dependent
for
the
purposes
of
this
Act,
(i)
defining
the
classes
of
non-resident
persons
who
may
be
regarded
for
the
purposes
of
this
Act
(i)
as
a
spouse
supported
by
a
taxpayer,
or
(ii)
as
a
person
dependent
or
wholly
dependent
upon
a
taxpayer
for
support,
and
specifying
the
evidence
required
to
establish
that
a
person
belongs
to
any
such
class,
and
(j)
generally
to
carry
out
the
purposes
and
provisions
of
this
Act.
Paragraph
146(l)(g.
1)
defines
the
term
“RRSP
deduction
limit”:
—
146(l)(g.
1
)
“RRSP
deduction
limit”
of
a
taxpayer
for
a
taxation
year
means
the
amount
determined
by
the
formula
A
+
B-C
where
A
is
the
taxpayer’s
unused
RRSP
deduction
room
at
the
end
of
the
immediately
preceding
taxation
year,
B
is
the
amount,
if
any,
by
which
the
lesser
of
the
RRSP
dollar
limit
for
the
year
and
18%
of
the
taxpayer’s
earned
income
for
the
immediately
preceding
taxation
year
exceeds
the
aggregate
of
all
amounts
each
of
which
is
the
taxpayer’s
pension
adjustment
for
the
immediately
preceding
taxation
year
in
respect
of
an
employer,
or
a
prescribed
amount
in
respect
of
the
taxpayer
for
the
year,
and
C
is
the
taxpayer’s
net
past
service
pension
adjustment
for
the
year;
Paragraph
146(5)(b)
reads
as
follows:
146(5)
There
may
be
deduced
in
computing
a
taxpayer’s
income
for
a
taxation
year
such
amount
as
the
taxpayer
claims
not
exceeding
the
lesser
of
(b)
the
taxpayer’s
RRSP
deduction
limit
for
the
year
Subsection
248(1)
defines
the
word
“prescribed”:
—
248(1)
“prescribed”
means
(a)
in
the
case
of
a
form,
the
information
to
be
given
on
a
form
or
the
manner
of
filing
a
form,
authorized
by
the
Minister,
and
(a.l)
in
the
case
of
the
manner
of
making
or
filing
an
election,
authorized
by
the
Minister,
and
(b)
in
any
other
case,
prescribed
by
regulation
or
determined,
in
accordance
with
rules
prescribed
by
regulation;
Paragraph
60(i)
permits
the
deduction
of:
—
60.
There
may
be
deducted
in
computing
a
taxpayer’s
income
for
a
taxation
year
such
of
the
following
amounts
as
are
applicable:
(i)
any
amount
that
by
virtue
of
section
146
is
deductible
in
computing
the
income
of
the
taxpayer
for
the
taxation
year;
Regulation
8309(2)
is
the
regulation
at
issue
and
came
into
force
for
the
1992
and
subsequent
tax
years.
It
reads
as
follows:
—
8309(2)
Where
an
individual
is,
at
any
time
in
a
particular
calendar
year
after
1990,
a
judge
in
receipt
of
a
salary
under
the
Judges
Act,
there
is
prescribed
in
respect
of
the
individual
for
the
immediately
following
year
for
the
purpose
of
the
description
of
B
in
paragraphs
146(l)(g.
1)
and
(1)
and
subsection
204.2(1.1)
of
the
Act
the
amount,
if
any,
by
which
(a)
the
lessor
of
(i)
18
percent
of
the
salary
(other
than
salary
that
was
not
received
under
the
Judges
Act)
received
by
the
individual
for
the
particular
year
as
a
judge,
and
(ii)
the
money
purchase
limit
for
the
particular
year
exceeds
(b)
$1,000
Subsections
42(1)
and
53
of
the
Judges
Act
read
as
follows:
42(1)
The
Governor
in
Council
shall
grant
to
(a)
a
judge
who
has
continued
in
judicial
office
for
at
least
15
years,
has
attained
the
age
of
65
years
and
resigns
his.
office,
(b)
a
judge
who
has
continued
in
judicial
office
for
at
least
15
years
and
resigns
his
office,
if
in
the
opinion
of
the
Governor
in
Council
the
resignation
is
conducive
to
the
better
administration
of
justice
or
is
in
the
national
interest,
(c)
a
judge
who
has
become
afflicted
with
a
permanent
infirmity
disabling
him
from
the
due
execution
of
the
office
of
judge
and
resigns
his
office
or
by
reason
of
that
infirmity
is
removed
from
office,
or
(d)
a
judge
who
has
attained
the
age
of
retirement
and
has
held
judicial
office
for
at
least
ten
years,
an
annuity
equal
to
two-thirds
of
the
salary
annexed
to
the
office
held
by
the
judge
at
the
time
of
his
resignation,
removal
or
attaining
the
age
of
retirement,
as
the
case
may
be.
53(1)
The
salaries,
allowances
and
annuities
payable
under
this
Act
and
the
amounts
payable
under
sections
46.1
and
51
shall
be
paid
out
of
the
Consolidated
Revenue
Fund.
(2)
For
any
period
less
than
a
year,
the
salaries
and
annuities
payable
under
this
Act
shall
be
paid
pro
rata.
(3)
The
salaries
and
annuities
payable
under
this
Act
shall
be
paid
by
monthly
instalments.
(4)
The
first
payment
of
salary
of
any
judge
shall
be
made
pro
rata
on
the
first
day
of
the
month
that
occurs
next
after
the
appointment
of
the
judge.
(5)
If
a
judge
resigns
the
office
of
judge
or
dies,
the
judge
or
his
legal
representatives
are
entitled
to
receive
such
proportionate
part
of
the
judge’s
salary
as
has
accrued
during
the
time
that
the
judge
executed
the
office
since
the
last
payment.
Section
100
of
the
Constitution
Act,
1867
reads
as
follows:
100.
The
Salaries,
Allowances,
and
Pensions
of
the
Judges
of
the
Superior,
District,
and
County
Courts
(except
the
Courts
of
probate
in
Nova
Scotia
and
New
Brunswick),
and
of
the
Admiralty
Courts
in
Cases
where
the
Judges
thereof
are
for
the
Time
being
paid
by
Salary,
shall
be
fixed
and
provided
by
the
Parliament
of
Canada.
In
the
context
of
the
foregoing
statutory
and
regulatory
framework,
I
will
now
deal
with
each
of
the
issues
earlier
set
out,
seriatim.
ISSUE
NO.
1
Is
Regulation
8309(2)
ultra
vires
the
Governor
in
Council
by
exceeding
the
authority
granted
to
the
Governor
in
Council
to
make
regulations
as
provided
for
by
subsection
221(1)?
It
is
counsel
for
the
appellants’s
general
contention
that
subsection
221(1)
limits
the
content
of
the
regulations
to
administrative
and
procedural
matters.
Paragraph
(a)
thereof
permits
the
Governor
in
Council
to
“prescribe”
anything
within
that
general
content
that
“by
the
Act”
is
to
be
prescribed,
or
is
to
be
determined,
or
to
be
regulated
by
a
regulation.
The
appellant’s
expert
witness,
Jim
Giesinger,
testified
that
pension
plans
are
either
(a)
defined
benefits
plans
which
promise
only
certain
defined
benefits
at
the
maturity
of
the
plan,
or
(b)
money
purchase
plans
for
which
the
funding
is
prescribed
to
provide
certain
benefits
throughout
its
life.
Both
are
registered
and
can
usually
but
not
always
have
both
employer
as
well
as
employee
contributions.
Paragraph
146(l)(g.
1)
defines,
as
can
been
seen,
the
RRSP
deduction
limits
for
taxpayers
by
means
of
a
formula
A
+
B
-
C:
-
A
is
a
taxpayer’s
unused
deduction
room
from
the
preceding
year;
B
is
the
amount
by
which
the
lesser
of
the
RRSP
dollar
limit
for
the
year
and
18
percent
of
the
taxpayers’
earned
income
exceeds
the
taxpayer’s
pension
adjustment
for
the
preceding
year
[which
appears
to
refer
to
money
purchase
plans],
or
a
prescribed
amount
in
respect
of
the
taxpayer
for
the
year
[which
appears
to
refer
to
defined
benefit
plans],
and
C
the
taxpayer’s
net
past
service
pension
adjustment
for
the
year.
Whatever
the
deduction
may
be,
it’s
deductibility
is
authorized
by
paragraph
60(i)
of
the
Act.
Regulation
8309(2)
is
the
regulation
which
prescribes
the
amount
referred
to
in
(B)
of
paragraph
146(l)(g.
1).
That
is,
it
appears
to
apply
to
both
money
purchase
plans
and
to
defined
benefit
plans.
In
appellant
counsel’s
submission
while
the
regulation
appears
superficially
to
set
only
a
mathematical
formula
which
would
be
within
the
regulation
making
powers
of
the
Governor
in
Council,
it’s
consequential
effect
is
to
reduce
the
eligible
RRSP
deductions
for
federally
appointed
judges
from
$12,500
to
$1,000
for
the
1992
taxation
year
and
thus
goes
beyond
the
authority
delegated
to
the
Governor
in
Council
by
paragraph
221(l)(a)
because
it
makes
a
substantive
tax
change
which
is
not
a
function
that,
in
law,
can
be
granted
to
the
Governor
in
Council
and
it
is,
thus,
ultra
vires.
It’s
effect,
if
allowed
to
stand,
would
be
to
equate
a
judicial
annuity
to
a
registered
pension
plan
(“RPP”).
According
to
the
evidence
of
Mr.
Giesinger
they
are
quite
different
in
kind
and
ought
not
to
be
equated
in
counsel’s
view.
Mr.
Giesinger
in
his
Affidavit
and
in
his
Examination
in
Chief
affirmed
that:
(i)
Generally
The
income
tax
legislation
has
provided
tax
incentives
for
employer
sponsored
pension
plans,
and
private
savings
through
an
RRSP,
for
many
decades.
In
1990,
the
legislation
was
amended
to
ensure
the
tax
assistance
to
the
different
types
of
retirement
savings
arrangements
(defined
benefit
pension
plans
and
RRSPs)
was
relatively
comparable.
The
basic
idea
behind
the
amendments
is
to
permit
everyone
to
save
18%
of
their
annual
earnings
(up
to
specified
limits)
on
a
tax-assisted
basis.
Individuals
saving
through
an
RRSP
alone
can
contribute
this
amount
to
an
RRSP.
Individuals
who
also
participate
in
employer-sponsored
pension
plans
have
their
personal
RRSP
room
“offset”
or
reduced
annually
by
the
value
of
the
benefits
accruing
to
them
under
the
pension
plan.
The
income
tax
legislation
sets
out
prescribed
rules
to
determine
the
“offset”
technically
known
as
the
“Pension
Adjustment”.
For
example,
the
Revenue
Canada
1992
Pension
and
RRSP
Tax
Guide
states
(at
p.
9):
Pension
adjustment
(PAs)
What
is
a
PA’?
Your
PA
for
a
year
is
the
total
of
your
pension
credit
amounts
for
the
year
under
benefit
provisions
of
RPPs
and
under
deferred
profit-
sharing
plans
(DPSPS)
sponsored
by
your
employer.
A
pension
credit
amount
for
a
year
is
a
measurement
of
the
value
of
the
benefit
you
earn
for
the
year
under
an
RPP
benefit
provision
or
under
a
DPSP.
[Emphasis
added.
I
To
understand
the
relevance
of
this
testimony
it
will
be
necessary
to
return
to
Regulation
8309(2)
which
states
that
for
a
judge
who
is
in
receipt
of
a
salary
under
the
Judges
Act
“...there
is
prescribed...for
the
purpose
of
the
description
of
(B)
in
paragraph
146(1
)(g.
l)...an
amount”.
which
is
(a)
“...the
aggregate
amount
of
all
amounts
each
of
which
is
the
taxpayer’s
pension
adjustment”
or
(b)
a
“prescribed
amount”
in
respect
of
the
taxpayer
for
the
year
and....
What
that
purports
to
do,
Mr.
Giesinger
says,
is
to
prescribe
a
specific
method
for
the
calculation
of
pension
adjustments
in
respect
of
judges’
annuities,
but,
in
his
view,
since
there
can
be
no
pension
credits
in
respect
of
judges
annuities
there
can
be
no
pension
adjustments
for
judges.
Regulation
8309(2)
attempts
to
respond
to
that
fact
and,
in
so
doing
effects
a
substantive
tax
change
given
the
significant
differences
between
the
two
plans.
Some
of
those
differences
are:
—
In
public
sector
and
many
private
sector
benefit
plans,
vesting
in
two
years
is
the
norm.
Benefits
are
funded,
they
are
portable,
require
employers’
contributions
and
interest
on
refunds
must
be
paid
at
reasonable
rates.
In
contrast,
in
judicial
annuities
there
is
no
vesting,
there
are
no
early
retirement
benefits,
payments
are
made
from
the
Consolidated
Revenue
Fund
not
from
funded
plans,
are
not
portable
and
the
prescribed
interest
rates
on
refunds
of
judge’s
contributions
is
fixed
at
only
four
per
cent.
The
absence
of
vesting
and
other
protections,
in
the
witness’
view,
shows
that
the
pension
adjustment
system
“fails
totally
to
reflect
the
value
of
benefits
in
question”
and,
presumably,
he
means
that
RPP’s
and
judicial
annuities
cannot
be
equated
simply
by
the
device
of
a
Governor
in
Council
prescription.
That
can
only
be
accomplished
by
Parliament,
according
to
counsel,
if
it
clearly
and
expressly
grants
to
the
Governor
in
Council
the
authority
to
legislate
pension
adjustment
amounts
for
federally
appointed
judges.
This
subsection
241(1)
does
not
do,
in
his
view.
I
do
not
agree.
Subsection
221(1)
as
enacted
by
Parliament
provides
that
the
Governor
in
Council
may
make
regulations
(a)
prescribing
anything
that,
by
this
Act,
is
to
be
prescribed
or
is
to
be
determined
or
regulated
by
regulation.
It
is,
thus,
necessary
to
examine
the
scheme
of
the
Act.
The
starting
point,
as
always,
is
that,
in
general,
all
income
is
taxable
except
for
authorized
deductions.
Paragraph
60(1)
permits
a
taxpayer
in
the
computation
of
his
taxable
income
for
a
year
to
deduct
any
amount
which
by
virtue
of
section
146
is
deductible
in
computing
the
income
of
the
taxpayer
for
the
year.
Subsection
146(5)
allows
the
taxpayer
to
deduct,
by
virtue
of
clause
(b),
the
taxpayer’s
RRSP
deduction
limit
for
the
year.
The
RRSP
deduction
limit,
by
virtue
of
paragraph
146(l)(g.l)
means
the
amount
determined
by
the
formula
A
+
B
-
C
referred
to
earlier.
The
amount
for
B
for
most
taxpayers
will
be
the
lesser
of
the
RRSP
dollar
limit
and
18
percent
of
the
taxpayer’s
earned
income
for
the
immediately
preceding
taxation
year
minus
the
taxpayer’s
“pension
adjustment”
for
the
immediately
preceding
taxation
year.
Pension
adjustment
is
defined
in
subsection
248(1)
as
having
a
meaning
“assigned
by
a
regulation”.
This
part
of
B
appears
to
apply
to
a
money
purchase
plan
because
of
the
presence
of
the
phrase
“each
of
which”.
However,
the
disjunctive
“or”
following
the
word
“employer”
refers
to
“a
prescribed
amount
in
respect
of
the
taxpayer
for
the
year”
and,
as
earlier
observed,
certainly
refers
to
a
different
category
of
plans
and
seems
to
refer
to
defined
benefit
plans
which
Judges
annuities
are
said
to
be.
Subsection
248(1)
defines
“prescribed”
to
mean,
(b)
in
any
other
case
“determined
in
accordance
with
the
rules
prescribed
by
regulation”.
Since
subsection
221(1)
authorizes
the
Governor
in
Council
to
make
regulations,
inter
alia,
“prescribing
anything
that
is...is
to
be
prescribed
by
regulation”,
it
appears
clear
that
Parliament,
with
sufficient
specificity
has
authorized
the
Governor
in
Council
to
make
regulations
such
as
8309(2)
and
that
regulation,
therefore,
is
not
ultra
vires
the
Governor
in
Council.
I
must
now
return
to
the
comment
made
at
the
beginning
of
the
discussion
on
Issue
No.
1,
namely,
that
it
was
appellant
counsel’s
contention
that
subsection
221(1)
limits
the
contents
of
the
regulations
to
procedural
and
administrative
matters.
He
argued
that
the
authority
granted
by
this
subsection
was
too
general
to
enable
the
Governor
in
Council
to
rely
on
it
in
the
enactment
of
a
regulation
which
imposed
a
financial
burden
of
the
nature
of
that
in
Regulation
8309(2).
At
best
subsection
221(1),
in
his
view,
conferred
a
power
to
enact
only
procedural
or
administrative
regulation.
The
subsection
however,
as
I
see
it,
must
be
read
with
the
other
provisions
authorizing
things
to
be
done
in
a
“prescribed”
manner
to
measure
the
breadth
of
the
regulation
making
power.
That
is
so
because
the
Governor
in
Council
is
authorized
to
make
regulations
“prescribing
anything
that
by
this
Act
is
to
be
prescribed.”
Subsection
248(1),
as
earlier
noted,
defines
“prescribed”
as
meaning,
inter
alia,
“prescribed
by
regulation”.
Therefore,
when
paragraph
146(l)(g.
1)
refers
to
“a
prescribed
amount”
It
means
an
amount
prescribed
by
the
regulation.
Since
the
authority
to
make
regulations
was
conferred
on
the
Governor
in
Council
by
Parliament,
and
since
it
is
not
simply
a
procedural
or
administrative
matter
which
has
been
authorized,
it
seems
clear
that
Parliament
authorized
a
calculation
to
be
made
pursuant
to
the
paragraph
by
regulation.
It
is
an
express
and
explicit
grant
not
limited
to
procedural
and
administrative
matters
and,
if
otherwise
is
a
valid
exercise
of
the
authority
granted,
it
is
intra
vires
the
Governor
in
Council.
The
Appeal
based
on
Issue
No.
1
must
fail.
ISSUE
NO.
2
Is
Regulation
8309(2)
ultra
vires
the
Governor
in
Council
as
being
contrary
to
the
common
law
jurisprudence
which
states
that
the
imposition
of
taxation
must
be
by
statutory
authority
and
not
delegated
authority?
In
other
words,
is
subsection
221(1)
subject
to
a
common
law
limit
which
prohibits
the
enactment
of
substantive
income
tax
changes
by
regulation?
Appellant
counsel’s
view
is
that
Regulation
8309(2),
being
subordinate
legislation,
is
ultra
vires
because
the
reduction
of
eligible
RRSP
contributions
from
$12,500
to
$1,000
for
the
appellant
in
the
1992
and
subsequent
taxation
years
constitutes
the
imposition
of
a
tax.
Since
the
provisions
delegating
authority
to
the
Governor
in
Council
do
not
clearly
authorize
the
imposition
of
taxes,
it
is
contrary
to
the
common
law
presumption
against
taxation
by
regulation
or,
alternatively
it
is
contrary
to
the
scope
of
authority
granted
by
subsection
221(1)
of
the
Act.
The
alternative
argument
has,
I
think,
been
disposed
of
in
the
discussions
in
respect
of
issue
no.
I
so
that
I
will
deal
briefly
only
with
the
alleged
presumption
against
imposing
taxation
by
regulation.
Counsel
offered
in
support
of
his
argument
the
judgements
in
Attorney
General
v.
Wilts
United
Dairies
Ltd.
(1922),
L.T.R.
781;
Gruen
Watch
Co.
v.
Canada
(Attorney
General)
(1950),
O.R.
429
and
Vanguard
Coatings
and
Chemicals
Ltd.
v.
R.
(sub
nom.
Vanguard
Coatings
and
Chemicals
Ltd.
v.
M.N.R.),
[1988]
2
C.T.C.
178,
88
D.T.C.
6374
(F.C.A.)
in
support
of
his
proposition.
The
essence
of
each
of
those
cases
is
that
only
by
using
the
clearest
of
words
is
Parliament
entitled
in
the
delegation
of
its
powers
to
the
Governor
in
Council,
a
Minister
or
any
other
body
to
authorize
the
delegee
to
impose
taxes
or
any
financial
burden
by
means
of
a
regulation.
That
it
would
seem
is
incontestable.
However,
the
principle
has
no
application
on
the
facts
of
this
case.
Regulation
8309(2)
does
not
seek
to
impose
a
tax
or
financial
burden
of
any
sort
on
judges.
Rather
it
provides
a
method
for
the
calculation,
in
common
with
other
federally
appointed
judges,
of
the
appellant’s
RRSP
deduction
limits
in
any
given
taxation
year.
It
thus
limits
the
amount
of
savings
for
retirement
which
the
appellant
may
make
in
a
taxation
year
by
taking
advantage
of
the
right
to
deduct
such
savings
in
the
computation
of
her
taxable
income
just
as
a
non-judicial
taxpayer
is
so
entitled.
Clearly
it
does
not
impose
any
tax
or
any
financial
burden
of
any
kind.
At
worst,
it
limits
a
tax
advantage
to
a
sum
less
than
that
which
had
theretofore
prevailed.
That
being
so
the
appellant
must
also
fail
on
this
issue.
ISSUE
NO.
3
Is
Regulation
8309(2)
ultra
vires
the
Governor
in
Council
by
virtue
of
being
contrary
to
section
100
of
the
Constitution
Act,
1867?
For
the
sake
of
convenience,
I
repeat
that
section
below:
Section
100
of
the
Constitution
Act,
1867
reads
as
follows:
100.
The
Salaries,
Allowances,
and
Pensions
of
the
Judges
of
the
Superior,
District,
and
County
Courts
(except
the
Courts
of
probate
in
Nova
Scotia
and
New
Brunswick),
and
of
the
Admiralty
Courts
in
Cases
where
the
Judges
thereof
are
for
the
Time
being
paid
by
Salary,
shall
be
fixed
and
provided
by
the
Parliament
of
Canada.(53)
It
is
the
appellant’s
contention
that
the
phrase
“salaries,
allowances,
and
pensions”
must
be
interpreted
in
light
of
current
compensation
schemes
and
that
the
ability
of
a
taxpayer
to
contribute
to
an
RRSP
to
wholly
or
partially
self-fund
for
retirement
is
integral
to
that
taxpayer’s
salary,
allowances
and
pensions.
The
question
thus
arises
can
Parliament
delegate
to
the
Governor
in
Council
the
power
to
prescribe
by
regulation
a
formula
for
the
computation
of
RRSP
contribution
limits
without
infringing
Parliament’s
exclusive
authority
to
fix
the
salaries,
allowances
and
pensions
of
its
judges?
In
the
appellant’s
view,
the
answer
to
that
question
is
“no”
because
permitting
such
a
delegation
would
derogate
from
Parliament’s
constitutional,
exclusive
obligation
to
protect
the
independence
of
the
judiciary.
The
potential
would
exist,
her
counsel
argued,
for
that
independence
to
be
compromised
by
the
passage
of
regulations
affecting
judges
without
undergoing
the
scrutiny
of
Parliament.
The
judgment
of
the
Supreme
Court
of
Canada
in
Beauregard
v.
R.,
[1986]
2
S.C.R.
56,
30
D.L.R.
(4th)
481
is
the
definitive
authority
on
the
reach
of
section
100.
At
page
73
(D.L.R.
494)
of
the
Judgment
Dickson
C.J.C.
summarized
the
place
of
judicial
independence
in
the
constitution
of
Canada
in
the
following
way:
In
summary,
Canadian
constitutional
history
and
current
Canadian
constitutional
law.
establish
clearly
the
deep
roots
and
contemporary
vitality
and
vibrancy
of
the
principle
of
judicial
independence
in
Canada.
The
role
of
the
courts
as
resolver
of
disputes,
interpreter
of
the
law
and
defender
of
the
Constitution
requires
that
they
be
completely
separate
in
authority
antifunction
from
all
other
participants
in
the
justice
system.
I
emphasize
the
word
“all”
in
the
previous
sentence
because,
although
judicial
independence
is
usually
considered
and
discussed
in
terms
of
the
relationship
between
the
judiciary
and
the
executive
branch,
in
this
appeal
the
relevant
relationship
is
between
the
judiciary
and
Parliament.
Nothing
turns
on
this
contextual
difference.
Although
particular
care
must
be
taken
to
preserve
the
independence
of
the
judiciary
from
the
executive
branch
(because
the
executive
is
so
often
a
litigant
before
the
courts),
the
principle
of
judicial
independence
must
also
be
maintained
against
all
other
potential
intrusions,
including
any
from
the
legislative
branch.
In
McEvoy
v.
New
Brunswick
(Attorney
General),
[1983]
1
S.C.R.
704,
148
D.L.R.
(3d)
25
at
page
720,
(D.L.R.
38)
the
Court
said:
The
judicature
sections
of
the
Constitution
Act,
1867
guarantee
the
independence
of
the
superior
courts;
they
apply
to
Parliament
as
well
as
to
the
provincial
Legislatures.
In
a
similar
vein,
these
sections,
including
s.
100,
apply
to
both
the
executive
and
legislative
branches
of
government.
Chief
Justice
Dickson
at
pages
75-76,
(D.L.R.
495-96)
dealt
with
financial
security
as
a
component
of
judicial
independence
by
declaring:
—_
In
the
context
of
this
appeal
it
must
be
declared
that
the
essence
of
judicial
independence
for
superior
court
judges
is
complete
freedom
from
arbitrary
interference
by
both
the
executive
and
the
legislature.
Neither
the
executive
nor
the
legislature
can
interfere
with
the
financial
security
of
superior
court
judges.
That
security
is
crucial
to
the
very
existence
and
preservation
of
judicial
independence
as
we
know
it.
From
the
foregoing
conclusion
that
judicial
independence
is
an
important
constitutional
value,
the
question
arises
does
the
passage
of
Regulation
8309(2)
by
the
Governor
in
Council,
as
opposed
to
a
statutory
amendment
to
the
Act
or
the
Judges
Act
by
Parliament,
violate
the
principle
of
ensuring
judges
financial
security
as
a
component
of
judicial
independence?
Chief
Justice
Dickson
at
pages
(D.L.R.
496-97)
amplified
his
views
on
the
scope
of
section
100
in
the
following
passage:
What
then
can
Parliament
do
and
not
do
in
meeting
its
constitutional
obligation
to
provide
salaries
and
pensions
to
superior
court
judges?
As
a
general
observation,
Canadian
judges
are
Canadian
citizens
and
must
bear
their
fair
share
of
the
financial
burden
of
administering
the
country.
Thus,
for
example,
judges
must
pay
the
general
taxes
of
the
land.
See
Judges
v.
Saskatchewan
(Attorney
General),
[1937]
2
D.L.R.
209,
1
W.W.R.
508
(Sask.
P.C.).
Judges
also
have
an
amount
deducted
from
their
salaries
as
a
contribution
to
the
Canada
Pension
Plan.
These
two
liabilities
are,
of
course,
general
in
the
sense
that
all
citizens
are
subject
to
them
whereas
the
contributions
demanded
by
section
29.1
of
the
Judges
Act
are
directed
at
judges
only.
(Other
legislation,
federal
and
provincial
establishes
similar
pension
schemes
for
a
substantial
number
of
other
Canadians).
Conceding
the
factual
difference
that
section
29.1
of
the
Judges
Act
is
directed
only
at
judges,
I
fail
to
see
that
this
difference
translates
into
any
legal
consequence.
As
I
have
earlier
indicated,
the
essential
condition
of
judicial
independence
at
the
individual
level
is
the
necessity
of
having
judges
who
feel
totally
free
to
render
decisions
in
the
cases
that
come
before
them.
On
the
institution
plane,
judicial
independence
means
the
preservation
of
the
separateness
and
integrity
of
the
judicial
branch
and
a
guarantee
of
its
freedom
from
unwarranted
intrusions
by,
or
even
intertwining,
with,
the
legislative
and
executive
branches.
It
is
very
difficult
for
me
to
see
any
connection
between
these
essential
conditions
of
judicial
independence
and
Parliament’s
decision
to
establish
a
pension
scheme
for
judges
and
to
expect
judges
to
make
contributions
toward
the
benefits
established
by
the
scheme.
At
the
end
of
the
day,
all
s.
29.1
of
the
Judges
Act
does,
pursuant
to
the
constitutional
obligation
imposed
by
s.
100
of
the
Constitution
Act,
1867,
is
treat
judges
in
accordance
with
standard,
widely
used
and
generally
accepted
pension
schemes
in
Canada.
From
that
factual
reality
it
is
far
too
long
a
stretch,
in
my
opinion,
to
the
conclusion
that
s.
29.1
of
the
Judges
Act
violates
judicial
independence.
I
want
to
qualify
what
I
have
just
said
The
power
of
Parliament
to
fix
the
salaries
and
pensions
of
superior
court
judges
is
not
unlimited.
If
there
were
any
hint
that
a
federal
law
dealing
with
these
matters
was
enacted
for
an
improper
or
colourable
purpose,
or
if
there
was
discriminatory
treatment
of
judges
vis-a-vis
other
citizens,
then
serious
issues
relating
to
judicial
independence
would
arise
and
the
law
might
well
be
held
to
be
ultra
vires
s.
100
of
the
Constitution
Act,
1967.
It
should
first
be
noted
that
there
has
been
no
suggestion
by
the
appellant
that
the
passage
of
the
regulation
issue
was
for
any
improper
or
colourable
purpose.
Moreover,
the
appellant
candidly
testified
that
she
did
not
feel
that
the
effect
of
Regulation
8309(2)
undermined
her
personal
judicial
independence.
It
is
the
potential
for
the
undermining
or
weakening
of
the
institutional
aspects
of
the
judicial
independence
of
the
judiciary
as
a
class
by
the
enactment
of
other
regulations
by
the
Governor
in
Council
without
the
scrutiny
of
Parliament
that
the
appellant
argues
makes
the
regulation
ultra
vires.
They
have,
in
her
view,
the
potential
to
affect
her
financial
security.
Her
counsel
put
the
concern
in
his
Memorandum
of
Argument
in
this
way:
Although
the
enactment
of
Regulation
8309(2)
may
not
jeopardize
the
independence
of
the
appellant
or
the
independence
of
the
judiciary
it
is
precisely
this
concern
which
resulted
in
section
100
of
the
BNA
Act
being
put
in
place
to
safeguard
judicial
independence.
Once
the
independence
of
the
judiciary
is
weakened
the
damage
is
irreparable
so
any
potential
threat
against
judicial
independence
must
be
dealt
with.
Therefore,
in
his
view,
although
the
regulation
may
not
itself
impair
the
financial
independence
of
the
judiciary
since
there
could
be
a.
reason-
able
apprehension
of
such
impairment,
it
should
be
declared
to
be
ultra
vires
of
the
Governor
in
Council.
I
turn
again
to
the
Beauregard
judgment.
It
is
useful,
I
think,
to
refer
to
the
quotation
cited
by
Dickson,
C.J.C.
of
Justice
Frankfurter
of
the
United
States
Supreme
Court
at
page
79
(D.L.R.
498)
of
the
Judgment:
—
To
suggest
that
it
makes
inroads
upon
the
independence
of
judges
who
took
office
after
Congress
had
thus
charged
them
with
the
common
duties
of
citizenship,
by
making
them
bear
their
aliquot
share
of
the
cost
of
maintaining
the
Government,
is
to
trivialize
the
great
historic
experience
on
which
the
framers
based
the
safeguards
of
Article
III,
s.1.
To
subject
them
to
a
general
tax
is
merely
to
recognize
that
judges
are
also
citizens,
and
that
their
particular
function
in
government
does
not
generate
an
immunity
from
sharing
with
their
fellow
citizens
the
material
burden
of
the
government
whose
Constitution
and
laws
they
are
charged
with
administering.
It
is
also
useful
to
recall
that
section
100
requires
Parliament
to
fix
and
provide
the
salaries
and
pensions
of
federally
appointed
judges.
In
Beauregard,
as
explained
at
page
501
of
the
Judgment,
his
counsel
had
argued
that
nothing
in
the
Constitution
Act,
1867,
including
section
100,
authorizes
Parliament
to
make
any
deductions
from
the
salaries
of
judges
because
such
deductions
constitute
an
unconstitutional
direction
as
to
how
judges
are
to
spend
their
salaries
and,
therefore,
constitute
a
direct
interference
on
judicial
independence.
That
was
not
the
basis
for
the
ultra
vires
argument
advanced
in
this
case,
but
the
reason
for
rejecting
that
argument
seems
to
be
apposite
here.
First,
as
the
Chief
Justice
found,
section
100
requires
Parliament
to
fix
and
provide
salaries
and
pensions.
They
are
both
remunerative
benefits
and
Parliament
must
consider
the
relationship
between
both
of
those
components.
The
1975
salary
and
pension
package
there
under
consideration,
did
just
that
and
was
a
proper
exercise
of
Parliament’s
authority.
Secondly,
he
held
that
the
1975
law
dealt
with
the
scheme
which
properly
and
validly
dealt
with
both
salaries
and
pensions.
Thirdly,
he
stated:
—
the
limitation
proposed
by
the
respondent
would
have
nothing
to
do
with
my
understanding
of
proper
governmental
respect
of
the
independent
role
of
the
courts;
neither
would
it
bear
directly
upon
the
relationship
between
the
judiciary
and
either
Parliament
or
the
executive;
nor
would
it
have
any
meaning
in
a
federal-provincial
sense.
In
short,
I
simply
do
not
see
any
conceptual,
principled
or
practical
reason
for
drawing
a
line
in
the
place
contended
for
by
the
respondent.
In
this
case,
for
the
same
reason,
I
can
see
no
“conceptual,
principled
or
practical”
reason
for
finding
that
the
enactment
of
Regulation
8309(2)
encroaches
on
Parliament’s
undoubted
obligation
to
legislate
in
respect
of
salaries
and
pensions
as
provided
in
Section
100.
Judges
are,
as
Frankfurter,
J.
observed,
supra,
also
citizens
and
as
Dickson,
C.J.C.
stated
in
a
passage
earlier
quoted
relating
to
pension
schemes
should
be
treated
“lin
accordance
with
standard,
widely
used
and
generally
accepted
pension
schemes.”
While
it
is
not
“pensions”
to
which
Regulation
8309(2)
applies
but
rather
to
deductions
permitted
in
the
computation
of
taxable
income,
the
same
considerations
prevail.
Moreover,
as
a
matter
of
weight,
I
find
that
mere
reductions
in
the
quantum
of
a
permitted
tax
deduction,
even
less
persuasive
of
an
encroachment
on
judicial
independence
than
the
imposition
of
contributions
to
judicial
annuities
which
was
the
issue
in
Beauregard.
The
purpose
of
the
Regulation
is
to
bring
the
treatment
of
judges
RRSP
contributions
into
line
with
the
treatment
accorded
to
most,
if
not
all,
other
taxpayers.
I
fail
to
understand
how
that
reality
can
affect
judicial
independence
either
as
a
fact
or
potentially.
Accordingly,
the
appellant
fails
also
on
this
branch
of
her
appeal.
ISSUE
NO.
4
If
Regulation
8309(2)
is
validly
enacted
is
its
interpretation
ambiguous
and
should
this
ambiguity
be
resolved
in
favour
of
the
appellant?
As
I
understand
it,
counsel
for
the
appellant’s
contention
is
that
assuming
that
the
regulation
is
a
valid
exercise
of
the
authority
of
the
Governor
in
Council
it
is
the
application
of
Regulation
8309(2)
to
paragraph
146(l)(g.
1)
which
is
capable
of
leading
to
at
least
two
different
calculations.
One
supports
the
interpretation
advanced
by
the
respondent
and
the
other
that
of
the
appellant.
The
appellant’s
interpretation
leads
to
the
following
calculation:
—
Regulation
8309(2)
replaces
all
of
“B”
in
paragraph
146(l)(g.
1)
because
of
the
wording
of
Regulation
8309(2)
which
states
that
“there
is
prescribed
in
respect
of
the
individual
for
the
immediately
following
year
for
the
purpose
of
the
description
of
“B”
in
paragraph
146(l)(g.
1)
...
the
amount,
if
any,
by
which:
(a)
the
lesser
of
(i)
18%
of
salary
received
as
a
Judge;
and
(ii)
the
money
purchase
limit
for
the
particular
year
exceeds
(b)
$1,000
Applying
this
calculation
for
1992
who
received
a
salary
as
a
judge
of
$150,000
in
1991.
(a)
Lesser
of
(i)
18%
($150,000)
=
27,000;
and
(ii)
$12,500
exceeds
(b)
$1,000
$12,500
-
$1,000
=
$11,500.
This
amount
calculated
under
Regulation
8309(2)
becomes
“B”
in
paragraph
146(l)(g.
1)
with
the
result
that
the
RRSP
deduction
limit
is
À
+
ll,500-C
D
+
00
=
$11,500
Under
this
interpretation
the
appellant
would
be
entitled
to
deduct
RRSP
contributions
of
$11,500
in
computing
her
1992
income.
The
respondent
on
the
other
hand
interprets
the
regulation
in
the
manner
set
out
in
Exhibit
R-1
filed
on
the
Appeal
on
the
assumption
that
the
judge’s
salary
for
1991
was
$155,610.
1.
The
amount
of
new
RRSP
deduction
room
that
became
available
to
the
judge
in
1992
was
$1,000,
determined
as
follows:
Amount
prescribed
in
respect
of
the
judge
for
1992
by
subsection
8309(2)
of
the
Income
Tax
Regulations
Lesser
of
|
18%
of
judge’s
1991
salary
|
$28,010
|
|
Money
purchase
limit
for
1991
|
$12,500
|
|
$12,500
|
|
Deduct
$1,000
|
($1,000)
|
|
Prescribed
amount
for
1992
|
$11,500
|
|
Amount
of
new
RRSP
deduction
room
in
1992
|
|
|
Lesser
of
|
|
|
18%
of
1991
earned
income
|
$28,010
|
|
RRSP
dollar
limit
for
1992
|
$12,500
|
|
$12,500
|
|
Deduct
amount
prescribed
for
1992
|
|
|
by
subsection
8309(2)
|
($11,500)
|
|
New
RRSP
deduction
room
for
1992
|
$1,000
|
In
appellant
counsel’s
view
the
apparent
ambiguity
arising
from
the
interpretation
of
paragraph
146(1
)(g.l)
and
Regulation
8309(2)
is
one
which
should
be
resolved
in
favour
of
the
appellant
and
cites
in
support
of
that
contention
the
recent
Supreme
Court
of
Canada
decision
in
the
Montréal
(City)
v.
Québec
(Attorney
General)
(1955)
D.T.C.
5017.
Regulation
8309(2)
sets
out
that
for
a
judge
in
receipt
of
a
salary
there
is
prescribed
in
respect
of
him
for
the
immediately
following
year
for
the
purpose
of
“B”
in
paragraph
146(
1
)(g.
1),
the
lesser
of
18%
of
his
salary
for
a
particular
year
and
the
money
purchase
limit
for
a
particular
year
which
exceeds
$1,000.
Thus,
in
the
respondent’s
view,
the
first
step
is
to
calculate
the
prescribed
amount
for
1992.
That
calculation
requires
it
to
be
made
by
reference
to
the
judge’s
1991
salary.
Thus,
the
prescribed
amount
for
1992
is,
as
can
be
seen
from
the
above
calculation
of
the
respondent,
$11,500.
The
next
step
is,
to
utilize
that
figure
in
calculating
the
RRSP
deduction
limit
or
“room”
for
1992.
Exhibit
R-l
discloses
that
the
result
is
an
RRSP
deduction
room
for
1992
of
$1,000.
The
second
part
of
Exhibit
R-2
contrasts
that
figure
calculated
for
judges
with
the
same
result-$1,000-available
to
ordinary
RPP
members
for
their
RRSP
deduction
limit,
For
purposes
of
these
reasons
it
is
unnecessary
to
set
out
that
calculation.
Suffice
it
to
say
that
it
follows
the
formula
set
out
in
the
first
part
of
“B”
in
paragraph
146(l)(g.
1)
of
the
Act.
With
respect,
I
am
of
the
opinion
that
the
calculation
in
Exhibit
R-l
correctly
reflects
the
requirements
of
paragraph
146(1
)(g.
1).
That
part
of
the
text
of
“B”
down
to
and
including
the
word
“employer”,
immediately
before
the
disjunctive
“or”,
as
I
read
it
applies
to
those
taxpayers
whose
plan
enables
a
determination
of
their
“pension
adjustments”.
Because
of
the
nature
of
their
pensions
(annuities)
there
can
be
no
pension
adjustment
for
judges.
They
are
not
RPP’S.
Because
of
this,
instead
of
“pension
adjustments”,
to
ensure
consistency
the
paragraph
authorizes
the
fixing
of
“a
prescribed
amount”
presumably
for
others.
That
“prescribed
amount”
is
calculated
in
accordance
with
Regulation
8309(2)
which
is
applicable
to
judges
and
lieutenant
governors.
The
appellant’s
method
of
calculation
appears
to
founder
by
assuming
that
the
regulation
replaces
all
of
“B”
from
paragraph
146(l)(g.l).
This
is
in
error,
as
I
view
it,
because
only
that
portion
of
“B”
in
the
paragraph
authorizes
“a
prescribed
amount”.
If
this
is
correct
there
is
no
ambiguity
in
the
method
of
computation
of
the
appellant’s
1992
RRSP
deduction
limit.
Consequently,
the
Appeal
fails
on
this
ground
as
well.
For
all
of
the
foregoing
reasons
the
Appeal
will
be
dismissed
with
costs
if
demanded.
If
necessary,
I
may
be
spoken
to
on
the
question
of
costs.
Appeal
dismissed.
Email this Content