The
Chief
Justice
(concurred
in
by
Pratte,
J
and
MacKay,
DJ)
(judgment
delivered
from
the
Bench):—For
the
reasons
given
by
the
learned
trial
judge,
I
am
of
opinion
that
the
judgment
appealed
from
is
correct.
Having
regard
to
the
weight
placed
by
the
appellant
on
the
decision
of
the
Trial
Division
in
Quance
v
The
Queen,
[1974]
CTC
225;
74
DTC
6210,
I
deem
it
advisable
to
state
in
my
own
words
what
I
regard
as
the
basic
fallacy
in
the
appellant’s
position.
Once
it
is
conceded,
as
the
appellant
does,
that
the
respondent
was
dismissed
“without
notice”,
moneys
paid
to
him
(pursuant
to
a
subsequent
agreement)
“in
lieu
of
notice
of
dismissal”
cannot
be
regarded
as
“salary”,
“wages”
or
“remuneration”
or
as
a
benefit
“received
or
enjoyed
by
him
.
.
.
in
respect
of,
in
the
course
of,
or
by
virtue
of
the
office
or
employment”.*
Moneys
so
paid
(ie,
“in
tieu
of
notice
of
dismissal”)
are
paid
in
respect
of
the
“breach”
of
the.
contract
of
employment
and
are
not
paid
as
a
benefit
under
the
contract
or
in
respect
of
the
relationship
that
existed
under
the
contract
before
that
relationship
was
wrongfully
terminated.
The
situation
is
not
altered
by
the
fact
that
such
a
payment
is
frequently
referred
to
as
so
many
months’
“salary”
in
lieu
of
notice.
Damages
for
breach
of
contract
do
not
become
“salary”
because
they
are
measured
by
reference
to
the
salary
that
would
have
been
payable
if
the
relationship
had
not
been
terminated
or
because
they
are
colloquially
called
“salary”.
The
situation
might
well
be
different
if
an
employee
was
dismissed
by
a
proper
notice
and
paid
“salary”
for
the
period
of
the
notice
even
if
the
dismissed
employee
was
not
required
to
perform
the
norma!
duties
of
his
position
during
that
period.
Having
regard
to
what
I
have
said,
it
is
clear,
in
my
view,
that
the
learned
trial
judge
was
correct
in
holding
that
the
payment
in
question
did
not
fall
within
section
5
of
the
Income
Tax
Act
as
applicable
to
the
taxation
year
in
question.
In
so
far
as
section
25
of
that
Act
is
concerned,
on
the
facts,
it’
cannot
be
contended
with
any
seriousness
that
the
amount
in
question
can
reasonably
be
regarded
as
falling
within
paragraph
(i),
(ii)
or
(iii)
of
that
section.
The
appellant
did
not
make
in
this
Court
the
argument
made
in
the
Trial
Division
that
the
amount
in
question
was
a
“retiring
allowance”.
With
reference
to
the
further
contention
in
this
Court
that
the
payment
was
income
even
if
not
income
from
an
office
or
employment,
this
contention
was
based
upon
a
line
of
cases
which,
in
so
far
as
relevant,
held
that
remuneration
for
services
is
income.
In
my
view,
such
authorities
have
no
application
to
damages
for
wrongful
dismissal.
Finally,
I
should
say
that,
in
my
view,
the
onus
of
proof
on
a
taxpayer
to
rebut
the
assumptions
on
which
the
assessment
was
based
cannot
assist
the
appellant
inasmuch
as
there
was
ample
evidence
to
support
the
findings
of
the
learned
trial
judge.
I
am
of
opinion
that
the
appeal
should
be
dismissed
with
costs.
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