Gibson,
J:—The
defendant
John
Melrose
Cruickshank,
a
resident
of
Paris,
France
and
having
a
“fiscal
domicile”
there
in
1974
(see
Article
11,
paragraph
VII
of
Canada-France
Income
Tax
Convention
of
1951),
received
from
a
private
pension
plan
of
Industrial
Hose
and
Belting
Ltd,
which
was
administered
by
Investors
Trust
Company,
as
trustee,
the
lump
sum
of
$213,258.88
as
a
former
employee
on
the
termination
of
this
pension
plan.
This
lump
sum
was
paid
to
him
to
commute
a
pension
he
otherwise
would
have
received
under
the
pension
plan.
The
Minister
of
National
Revenue
assessed
the
defendant
15%
nonresident
tax
purportedly
pursuant
to
the
provisions
of
paragraph
212(1)(h)
of
the
Income
Tax
Act
as
it
read
in
1974,
namely
$31,988.83.
The
issue
on
this
appeal
is
whether
or
not
the
amount
of
$213,258.88
was
exempt
from
tax
because
it
was
a
“pension”
paid
to
the
defendant
within
the
meaning
of
that
word
in
Article
11
of
the
said
Canada-
France
Tax
Convention.
Article
11(1)
reads
as
follows:
I.
Private
pensions
and
terms
or
life
annuities
derived
from
one
of
the
two
embracing
States
and
paid
to
persons
having
their
fiscal
domicile
in
the
other
State
are
taxable
only
in
the
latter
State.
Section
3
of
the
Canada-France
Income
Tax
Convention
Act,
1951,
reads
as
follows:
3.
In
the
event
of
any
inconsistency
between
the
provisions
of
this
Act
or
of
the
said
Convention
and
the
operation
of
any
other
law,
the
provisions
of
this
Act
and
the
Convention
shall,
to
the
extent
of
such
inconsistency,
prevail.
There
is
no
definition
of
“pension”
in
the
Canada-France
Act
or
Convention.
Article
11
(XI)
of
the
Convention
Agreement
reads
as
follows:
XI.
Any
expression
which
is
not
defined
in
this
Agreement
shall
have
for
each
contracting
State
unless
the
context
otherwise
requires,
the
same
meaning
which
it
has
under
the
laws
of
that
State
with
respect
to
the
taxes
referred
to
in
the
said
Agreement.
There
is
no
definition
of
“pension”
in
the
Income
Tax
Act
as
it
read
in
1974.
The
submission
is
therefore
that
the
lexicon
meaning
of
“pension”
should
be
applied
and
such
does
not
include
a
lump
sum
payment
as
was
made
in
this
case.
The
Income
Tax
Act
in
subparagraph
56(1
)(a)(i),
paragraph
212(1
)(h)
and
subsection
248(1)
does
prescribe
that
any
amounts
received
from
a
pension
plan
which
could
be
categorized
as
“superannuation
or
pension
benefit”
shall
be
taxed,
and
these
latter
words
include
pension
payments.
In
addition,
the
plaintiff
pleads
that
the
Minister
of
National
Revenue
in
assessing
the
defendant
as
he
did
acted,
inter
alia,
upon
this
assumption,
viz:
(a)
that
the
amount
of
$213,258.88
was
received
by
the
defendant
as
a
Superannuation
or
pension
benefit
in
accordance
with
the
provisions
of
paragraph
212(1)(h)
of
the
Income
Tax
Act.
Also
Parliament
as
a
lexicographer
of
the
word
“pension”
in
the
Convention
adopted
in
the
Canada-France
Income
Tax
Convention
Act,
1976
at
Article
XVIII
prescribes
that
pensions
may
be
“periodic
or
nonperiodic”.
In
my
view
the
word
“pension”
as
used
in
Article
11
of
the
Canada-
France
Convention
in
reference
to
a
private
pension
paid
‘‘to
persons
having
their
fiscal
domicile
in
the
other
(contracting)
State’’
should
be
given
a
wider
meaning
than
its
lexicon
meaning
and
in
such
wide
meaning
includes
a
payment
which
may
be
categorized
as
a
“superannuation
or
pension
benefit”
as
used
in
the
Income
Tax
Act.
Accordingly
the
appeal
is
dismissed
with
costs.
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